National Green Tribunal
Jose Fernandes vs Goa Coastal Zone Management Authority on 23 January, 2023
Item No. 1 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Appeal No. 42/2022(WZ)
I.A. No. 181/2022(WZ)
Caveat No. 09/2022
Jose Fernandes & Anr.
.....Appellant(s)
Versus
GCZMA & Ors.
....Respondent(s)
Reserved for Order :- 12.01.2023
Pronounced on : 23.01.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant : Ms. Ronita Bhattacharya, Advocate
Respondent(s) : Mr. Abhay Anturkar, Advocate for R-1/GCZMA
Mr. Saket Mone, Advocate for R-2 & 3
Mr. Rahul Garg, Advocate for R-6/MoEF&CC
ORDER
I.A. No. 181/2022(WZ)
1. This Interim application has been moved by the Respondent Nos. 2 & 3/Private Respondents with the prayer to dismiss the appeal on the ground that the same is not maintainable under Section 16 of the National Green Tribunal Act, 2010.
2. In the body of the application, it is submitted that the Respondent Nos. 2 & 3/Private Respondents have purchased all the property in question (Survey Nos. 178/18, 26, 28, 30, 32 & 34 of Village Cavelossim, Salcete, Taluka- Goa), admeasuring 3075 sq. mtrs. vide Sale Deed dated 27.11.2019 and wanted to raise construction of a bungalow for the use of a small portion of the said land after obtaining necessary permissions from the concerned authorities. The Appellants made various complaints Page 1 of 12 with respect to the said construction, being carried by Respondent Nos. 2 & 3/ Private Respondents, which led the GCZMA to issue a Show Cause Notice-cum-Stop Work Order under Section 5 of the Environment (Protection) Act, 1986 read with Rule 4 of the Environment (Protection) Rules, 1986. Post the issuance of the show cause notice, the GCZMA scrupulously followed the procedure as provided under law, conducted an independent investigation, heard all the parties (including the Appellants) and after due application of mind, rendered its decision dated 15.06.2022 to the effect that Respondent Nos. 2 & 3 had not committed any kind of environment violations with respect to the said project and thus, GCZMA had withdrawn and discharged the proceedings.
3. It is further submitted that the appeal is not maintainable against the said order under Section 16 (g) of the National Green Tribunal Act, 2010, as it does not qualify "as direction" as contemplated under Section 16 (g) of the National Green Tribunal Act, 2010. When an authority takes a decision to withdraw direction and/or discharge a proceeding initiated under Section 5 of the Environment (Protection) Act, 1986, the law makers have consciously omitted the use of word "order or decision"
under Section 16(g) of the National Green Tribunal Act, 2010, as the same appears in Section 16(a), (b), (d), (e), (f), (h), (i) and (j). Therefore as per law, an appeal is maintainable only against direction issued under Section 5 of the Environment (Protection) Act, 1986 and not against any order or decision taken by the authorities while exercising such authority vested in it under Section 5 of the Environment (Protection) Act, 1986. A bare perusal of the order dated 15.06.2020, which is assailed by the Appellants in the captioned Appeal, makes it clear that the same is not a direction issued under Section 5 of the Environment (Protection) Act, Page 2 of 12 1986, but is in fact an order and/or decision of the GCZMA, thus is not appealable under Section 16 of the National Green Tribunal Act, 2010.
4. From the side of the Appellant, Rejoinder has been filed, where-in it is submitted that in a similar matter in Original Application No. 75/2019, where-in proceedings were initiated under Section 5 of Environment (Protection) Act, 1986 read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986 read with power vested with GCZMA vide order S.O. 3324 (E) dated 26.10.2017, issued by the MoEF&CC, were discharged by the GCZMA against the private person and their property. This Tribunal noted that the Applicant in question had wrongly sought to challenge the order/direction of the GCZMA discharging the proceedings under Section 5 of the Environment (Protection) Act, 1986 read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986 read with power vested with the GCZMA vide Order S.O. 3324(E) dated 26.10.2017 through an Original Application filed under Section 14 & 15 of the National Green Tribunal Act, 2010, while dismissing the Original Application filed by the Applicant in question, the NGT categorically held "The impugned proceedings of the Respondent No. 2 dated 27.05.2019 came to be passed in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 read with sub-Rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986 and therefore, it is deemed to be a direction issued under Section 16(g) of the National Green Tribunal Act, 2010."
5. It is further submitted that the order dated 21.11.2017 passed by this Tribunal in Appeal No. 03/2017 titled as Austin Francis D'Souza v. Secretary, MoEF&CC (relied upon by the Respondent Nos. 2 & 3) is distinguishable from the present appeal on both law and facts because in Appeal No. 03/2017, impugned order was issued under Section 5 of the Page 3 of 12 Environment (Protection) Act, 1986 read with sub-rule (3) (a) of Rule 4 of Environment (Protection) Rules, 1986 by MoEF&CC while the direction was issued in the present appeal (Appeal No. 42/2022) by the GCZMA in exercise of the powers under Section 5 of Environment (Protection) Act, 1986 read with sub-rule (3) (a) of Rule 4 of Environment (Protection) Rules, 1986 in exercise of the power vested with GCZMA vide MoEF&CC Order No. 3975(E) dated 31.10.2019. Further, it is submitted in Appeal No. 03/2017 that impugned order withdrew proposed directions/show cause notice of the MoEF&CC, issued to the recipient while in the present appeal, the impugned order/directions discharged proceedings and effectively terminated binding directions previously issued to the Respondent Nos. 2 & 3 dated 20.01.2022, which was a show-cause notice combined with a mandatory stop work order, therefore, it did not constitute "proposed direction".
6. Further, it is submitted that a plain reading of Section 5 of the Environment (Protection) Act, 1986 only empowers the Central Government to issue directions under Section 5 of the Environment (Protection) Act, 1986. The Rule 4 of the Environment (Protection) Act, 1986 lays down the procedure for the Central Government to issue directions under Section 5 of the Environment (Protection) Act, 1986. The body such as the GCZMA is vested with the power to issue directions under Section 5 of the Environment (Protection) Act, 1986 because the authority, to issue such directions, has been vested in them by the MoEF&CC under Section 3 sub-clause (3) of Environment (Protection) Act, 1986, which provides as under:-
"The Central Government may, if it consider it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue Page 4 of 12 directions under Section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures."
7. It is apparent that the Central Government can delegate its powers to issue directions under Section 5 of the Environment (Protection) Act, 1986 to any authority constituted by it by notifying the vesting of such powers in the official Gazette. Accordingly, the MoEF&CC has from time to time constituted the GCZMA vide a Notification in the official Gazette and vested appropriate powers with the GCZMA so that it can issue directions under Section 5 of the Environment (Protection) Act, 1986. The GCZMA "shall be made responsible for enforcing and monitoring the provisions" of the CRZ Notification, 2011 vide SO 3975(E) dated 31.10.2019, which was notified in the Official Gazette.
8. It is further submitted that the complaints made by the Appellant No. 1 would show that the Appellants were local Villagers of Cavelossim Village, who are concerned with the preservation of low-lying areas in order to avoid flooding in the area. The Appellants had also previously filed Original Application No. 28/2021 regarding the destruction of sand- dunes at Cavelossim. The Respondents had not raised any dispute/averment about the locus of the Appellants during the proceedings before the GCZMA, therefore, by virtue of the principle of estoppel, are barred from raising such an averment before this Tribunal. Lastly, it is submitted that it is settled law that the term "any person aggrieved by" as referenced throughout the National Green Tribunal Act, 2010, means that any person may raise environmental dispute irrespective of his being personally affected due to the Act of Page 5 of 12 wrongdoer/polluter or violator of environmental law/norms. Rest of the facts which have been narrated in the Rejoinder affidavit appears to be related to the merits, therefore, they need not be reproduced here.
9. Heard the arguments of the learned Counsel for the parties and perused the record.
10. From the side of Appellants, learned Counsel has placed reliance on the Judgment dated 14.09.2021 passed by this Tribunal in Original Application No. 75/2019 in the matter of Kashinath Jairam Shetye vs. the State of Goa & Ors., where-in Original Applicants made a challenge to the impugned order dated 27.05.2019 passed by the Respondent No. 2/GCZMA in the form of discharge of proceedings in respect of the house in property bearing Survey No. 115/1-F of Goa Velha, Village Tiswadi, Goa, owned by the Respondent No. 3/Private Respondent.
11. It is argued from the side of Respondent No. 3 before this Tribunal that in terms of Section 16 (g) of the National Green Tribunal Act, 2010, this Original Application ought to have been filed only as an Appeal and therefore, the Original Application is hopelessly barred by limitation and prayed for dismissal of the application with cost.
12. The sole issue in this which came for consideration was whether the Original Application was time barred by limitation? It was held that Original Application was time barred because the order impugned in the proceedings came to be passed in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 read with Sub-Rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986, therefore, it would be deemed to be a direction "issued under Section 16(g) of the National Green Tribunal Act, 2010" and that the said provision prescribes the limitation period of 30 days from the date on which the Order or Page 6 of 12 decision or direction was communicated to the Appellants with further 60 days being at the discretion of the Tribunal to condone the delay in case it finds sufficient ground to condone the said delay.
13. Based on the above Judgment, it is argued by the learned Counsel for the Appellant that in the present case also, there is a discharge order which should be treated nothing but a direction issued under Section 5 of Environment (Protection) Act, 1986 read with Sub-Rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986 as was done in the above mentioned ruling.
14. Per contra from the side of Respondent Nos. 2 & 3/Private Respondents, it is argued by the learned Counsel that the said finding given by this Tribunal should be seen in the context of the matter because in the said case, the sole consideration was with respect to whether the Original Application was time barred? There was no other consideration made in this application and therefore, this Judgment needs to be ignored. As against it, the learned Counsel for the Respondent Nos. 2 & 3 has placed reliance upon the Judgment of this Tribunal passed in Appeal No. 03/2017 dated 21.11.2017, where-in the points for determination were framed by this Tribunal, which are as follows:-
(i). Whether the impugned letter dated 26.05.2015 communicating the withdrawal of proposed issue under Section 5 of the Environment (Protection) Act, 1986 is appealable under any of the provisions of the Section 16, particularly, Section (g) of the National Green Tribunal Act, 2010?
(ii). Whether the appeal is barred by limitation prescribed under Section 16 of the National Green Tribunal Act, 2010?
Page 7 of 12
15. After considering the matter, it is recorded in the said Judgment by the Tribunal that it is revealed by Respondent No. 1/Envt. Department, Maharashtra that no directions were issued under Section 5 of the Environment (Protection) Act, 1986, but a Show-Cause Notice proposing the direction under Section 5 of the Environment (Protection) Act, 1986 dated 25.03.2015 was issued and after extending personal hearing to the Respondent No. 3/Private Respondent on 18.05.2015, a decision was taken by the Respondent No. 1 to withdraw the proposed directions as per law. Thereafter, Section 5 has been quoted in the said Judgment and in the light of that, it is observed that it is within the domain of the Government to take decision either to confirm, modify or decide not to issue such directions. Obviously, the decision not to issue such direction, is not a direction but a decision taken by the authority. By any standard, such decision can never be regarded as a command or instruction or even guidance to any person, Officer or authority so as to bind him to comply with such command, instruction or guidance as envisaged under Section 5 of the Environment (Protection) Act, 1986. This Tribunal has thereafter taken into consideration the Provisions of 16(g) of the National Green Tribunal Act, 2010 and has held that law makers have curiously omitted the use of words "Order or decision" as is found use in Clause (a), (b), (d),
(e), (f), (h), (i) and (j) in Section 16 of the National Green Tribunal Act, 2010. Law thus envisages an appeal only against the direction under Section 5 of the Environment (Protection) Act, 1986 and not against any order or decision taken by the authority while exercising such authority vested in it under Section 5 of the Environment (Protection) Act, 1986. Further it was held that the letter dated 26.05.2015 is not a direction but a communication of decision taken by the authority and thus it was held that no appeal would lie against such letter under Section 16(g) of the National Green Tribunal Act, 2010.
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16. Having relied upon this, the learned Counsel for the Respondent Nos. 2 & 3 has drawn our attention to the impugned order dated 15.06.2022, where-in following is held:-
"In the light of the foregoing, the Authority concluded that it is fit case to dismiss the complaint and discharge the show-cause notice dated 20.01.2022 issued to the Respondent. Now therefore, the Goa Coastal Zone Management Authority (GCZMA), in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986, read with power vested with the GCZMA vide Order S.O. 3975(E) dated 31.10.2019 issued by the Ministry of Environment & Forests, Government of India, hereby discharges proceedings against Respondent Nos. 2 & 3 with regard alleged illegal construction and illegal filling of eco-
sensitive, low-lying khazan lands in Survey Nos. 147/18, 26, 28, 30, 32 & 34 of Cavelossim Village in terms of decision taken in the 307th GCZMA Meeting held on 02.06.2022. The proceedings are accordingly disposed of."
17. It is argued by learned Counsel for the Respondent Nos. 2 & 3 that in the present case vide impugned order dated 15.06.2022 of GCZMA, the proceedings have been discharged against Respondent Nos. 2 & 3, therefore, it would not fall in the category of direction rather would fall in the category of order/decision as held in the above cited Judgment passed in Appeal No. 03/2017 and therefore, the present appeal should be held to be not maintainable.
18. Per contra learned Counsel for the Appellants has vehemently argued that Section 5 of the Environment (Protection) Act, 1986 provides as follows:-
"Power to give directions- Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation - For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-Page 9 of 12
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or any other service."
19. Having drawn our attention to this provision, where the same was read before us word by word by both the learned Counsel, it is argued by the Appellant that the word 'includes' in the explanation clause, would make it illustrative and exhaustive because below the explanation clause
(a) and (b) sub-clauses are added containing there-in the areas regarding which directions could be issued under this Section. But they are only illustrative and not exhaustive. It could certainly include a direction of discharge also because the said order has also been passed under Section 5 of the Environment (Protection) Act, 1986.
20. As against this, the learned Counsel for the Respondent Nos. 2 & 3 interpreted this provision to mean that the directions under Section 5 of the Environment (Protection) Act, 1986 can only be issued with respect to the subjects, which are disclosed in sub-clause (a) and (b) below the explanation only and it does not contain withdrawal order. Therefore, the impugned order should not treated as a direction issued under Section 5 of the Environment (Protection) Act, 1986 rather the same should be treated to be an order/decision against which no appeal would lie rather a Writ has to be preferred by the aggrieved party.
21. In this regard in our opinion is that if we closely read the Provision of Section 5 of the Environment (Protection) Act, 1986, we find that it is very clearly stated in explanation that "for avoidance of doubts, it is declared that the powers to issue directions under this Section includes the power to direct (a) the enclosure, prohibition or regulation of any industry, operation or process; or (b) stoppage or regulation of the supply of electricity or water or any other service". But these subjects appear to be only Page 10 of 12 illustrative because it cannot be said that other kind of directions cannot be issued under Section 5 of the Environment (Protection) Act, 1986. In our opinion, if any order of withdrawal is issued, that should also be covered as a direction, issued under Section 5 of the Environment (Protection) Act, 1986. As per common sense also, in the case in hand, when show-cause notice-cum-stop work order dated 20.01.2022 was issued under Section 5 of the Environment (Protection) Act, 1986 read with Rule 4 of Environment (Protection) Rules, 1986, directing the Respondent Nos. 2 & 3 to stop work with immediate effect and show cause as to why a direction to demolish the structures and to restore the land to its condition, should not be issued to them, would mean that this order was specific with respect to demolition of the structures owned by the Respondent Nos. 2 & 3 but later on after considering the matter again by impugned order, they have mentioned there-in that "it transpires that a some portion of under construction residential structure falls within the 'Khazan' area depicted on the draft CZMP. However, the authority was of the considered opinion that in view of the Respondents having obtained all the requisite permissions in accordance with the laws prevailing at the time and commenced there construction, they could not be prejudiced by the draft CZMP for Goa that is yet to be finalized" and after this observation, they have discharged the proceedings. It shows that there was some violation found to be there in accordance with the draft CZMP which during argument is stated to have been finalized also and therefore, we find that even on fact, there was some violation noticed by the GCZMA and yet the proceedings in this matter have been dropped and this order too, has also been passed under the same provision of Section 5 of the Environment (Protection) Act, 1986 as was the earlier order passed on 20.01.2022. The Appellants here were not aggrieved by the order dated 20.01.2022 because that was in their favour but the moment the said Page 11 of 12 order was recalled by way of dropping the provisions, the prejudice was caused to the Appellants, hence they have approached us for seeking over-turning of the said order. In our opinion, the said order would fall in the category of 'direction' only, issued under Section 5 of the Environment (Protection) Act, 1986 against which we are very sure that the appeal would lie. All the contentions raised contrary to this by the learned Counsel for the Respondent Nos. 2 & 3 do not stand to reason.
22. In view of above analysis, we reject the I.A. No. 181/2022(WZ).
23. Put up the main appeal for hearing on merit on 23.03.2023 Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM January 23, 2023 Appeal No. 42/2022(WZ) I.A. No. 181/2022(WZ) Caveat No. 09/2022 P.Kr Page 12 of 12