National Green Tribunal
Salu Dsouza vs Goa Coastal Zone Management Authority ... on 11 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Org. Application No. 16/2016(WZ)
(I.A. No. 133/2020)
Mr. Salu D'Souza & 2 Anr. Applicant(s)
Versus
Goa Coastal Zone Management Authority through
its Member Secretary & Ors Respondent(s)
Date of hearing: 11.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant: Mr. Rahul Choudhary Advocate
Respondent: Ms. Ruchita Gupta Advocate for GCZMA
Mr.Pavithran AV, Advocate For PCB
Mr. A.D. Bhobe, Advocate for R-7
Mr. Balkrishna P. Sardesssai, Advocate, R-9
Mr. Shivshankar Swaminathan, Advocate.
ORDER
[ The Issue raised
1. This application has been filed under sections 14 and 15 of the NGT Act with following prayers:-
"
a. The Respondents companies (Resp. nos. 7 -13) be directed to remove their vessels which are parked in the river-sometimes in the middle of the river for months at times.
1b. The Respondents companies (Resp. nos. 7 -13) be directed to make arrangements to conduct repair works within the dockyard that have been assigned to them, if at all, by the authorities.
c. Respondents companies (Resp. nos. 7 -13) be directed to remove all the mud, rust, metals and other foreign material which they have dumped in o the river as this is a violation of pollution laws as well as the CRZ notification.
d. The GCZMA (Resp. No. 1) be directed to inspect this area and demarcate the encroachments which have been made by the respondent companies in the Cortalim creek and within time frame, these must be removed.
e. The area of both sides of the Cortalim river be brought to its original condition, as existed, prior to the proliferation of these activities."
2. According to applicants, the Respondent Nos. 7 to 13, M/s A.V. Salgaonkar, M/s Saparia Dock Steel Pvt. Ltd., M/s Sardesaid Engg. Work, M/s Desa Engg. Works, M/s Vipul Engg. Works, M/s Sachita Engg. and M/s Ferromar Shipping Pvt. Ltd. at Meddant, Cortalim, Goa have set up shipyards in tidal creek known as Cortalim Creek in South Goa which flows into Zuari river upto Quellossim. The water channel is approximately 150 meters wide during high tide and reveal extensive mud flats at low tide. The channel is bordered by mangroves on both sides and has khazan land on one side. For these reasons the Cortalim creek is zoned as CRZ-I in the approved Coastal Zone Management Plan (CZMP) for Goa.
3. The channel in particular is the breeding, spawning and nesting site for several river fish species, clams, oysters, crab and shell fish. Years ago, one could also find the Windopane Oysters here (now and endangered 2 species). From earliest times, the villagers of Cortalim are dependent on the abundant fishery of this area for their own food as well as for earning a livelihood. They sell the catch in the nearby markets or along the highway which borders their villages. Approximately 7 companies (Resp.
Nos. 7 to 13) have set up shipyards, one next to the other. On the opposite side i.e. the northern side, there lies an extensive stretch of riverine land which opens up into vast khazan lands, where paddy used to be cultivated and later, they are used as fish farms. The land is also suitable for commercial fish breeding. Being a tidal creek, fishing and farming activities are based on the ebb and flow of the Zuari river. During low tide, the riverine land dries up at which time the fisher folk cast their Futanis (large nets) which will trap the fish that comes in at high tide. During low tide, the fishermen and women also wade in the creek's waters, scouting for clams, crabs, Oysters and other shellfish, which once used to be found in abundance in this area, but have now declined owing to the activities of shipyards which spill out into the channel. Their business activities have created large scale damage to the Cortalim creek which, besides destroying the local ecology, has also severely hampered the livelihood of the fisher folk.
4. The applicants have described the damage caused by the private respondents as follows:-
"(i) Several barges and shipping vessels, large and small, lie parked in the channel, for years together, under guise of repairs to be carried out. There is no effort made to draw these vessels into the dockyard area for repairs, if there exists one and to dispatch them on their way after completion of repair works. In fact, the channel has become a sort or permanent parking area for these vessels. Official parking charges levied by Captain of Ports is a mere Rs. 3/ per day.
As a result of such indiscriminate parking there is little or no free space in the creek where the villagers can carry out their traditional fishing activities. In fact, the trawlers, barges, ships and other sea vessels are encroaching in the same area where the fisher folk have been conducting their traditional fishing activities.
3(ii) The metals and rust from the worn-out vessels, after chipping cleaning and repairing the barges is completed, simply fall into the creek's waters or are dumped there, since this is the easiest way to get rid of the industrial waste. The channel is thus silted and is also polluted from this waste. It is only the constant tidal action which has kept this creek still alive, although far from the good health it was in earlier.
(iii) The respondent companies have also reclaimed portions of the channel by dumping mud and debris into the waters, thereby securing additional portions of land for installing the various equipments required by them for the shipyard activities.
(iv) Shabby concrete structures have also been illegally built in the river, thus extending the area occupied by the barge repair Companies.
(v) The entire bank of the creek is lined with barges, trawlers, boats and other sea-going vessels, as the safe waters of the creek have become a cheap parking option for vessels when not in use. Landowners owning properties alongside the waters accept a pittance to permit the frontage of their properties to be used for anchoring the vessels.
(vi) Several barges are now half submerged in the waters, or stuck in the mud flats for years and such vessels can no longer be repaired and have to be broken up. Ship breaking and ship building are now freely carried out in this CRZ I area without any environmental safeguards.
11. In the same Google image, one can also see, on the opposite side, the vast khazan lands with mangroves fringing the entire area. There are sluice gates and bunds strategically located to facilitate ne tradition form of agriculture in this ecologic fragile area. All these man- made bunds and sluice gates crafted out over the years can easily be rendered defunct if they are not attended to from time to time, which is only possible if the villagers can earn a living maintaining them.
12. At Exhibit B is a Google image of the same area dated around years earlier, i.e., 4April, 2011. This image has been downloaded from the net, to illustrate how the activities of the companies a steadily increasing and encroaching further and further into the river Channel. A comparison of the two pictures will easily show that presently, there is little room in the channel for ingress and egress and none at all for casting the Futanis and Aris in the riverine area. The bundhs are also breached and for this reason the villagers have abandoned the paddy cultivation and the fish ponds in the khazan land.
13. Applicants annex at Exhibit C a copy of Hydrographic Surveyor's map of the area. The location of M/s A.V. Salgaonkar Shipyard is marked on the map this is the first of the shipyards in this channel, others are all eastwards. However, even ahead of the Salgaonkar shipyard (i.e. towards the Zuari bridge) there are other minor repair yards, which are also carrying out repairs such as 4 chipping, painting etc. The map also indicates the mud flat area, the fishing net areas and other navigation features.
14. Besides these very obvious impediments to their traditional occupations, the fishing activities are severely affected as follows:
(i) Movement of fish is disturbed. Fish cannot move freely in the channel. The catch has decreased considerably.
(ii) The waste oil, rust, chemicals etc. used in chipping and cleaning the vessels, the paints and other materials used to refurbish the barges have polluted the river considerably and destroyed the breeding grounds of the clams, oysters, crabs and shell fish that were plentiful here, not so long ago.
Presently, the fish catch is less than a fourth of what used to be available barely a decade ago. It may be mentioned that this channel, because of its unique features of having both Khazan lands and mangroves, was bountiful in shellfish. Fisherfolk could actually earn a decent livelihood merely by wading into the channel water and harvesting the fish catch. There are more than a hundred fisherfolk (not counting family members) who are dependent for their livelihood from fishing in this area. Several villagers have fishing licenses from the Directorate of Fisheries which are renewed annually. At Exhibit D colly are copies of some of the licences issued to the fisherfolk.
(iii) The Aris (fishing stakes) are destroyed when ships move in and out of the channel. Similarly, the Futanis (nets) which are traditionally cast wide, can no longer be operated as the channel is blocked by the vessels and is no longer available to the fisherfolk or the nets get torn and damaged by the movement of the barges and trawlers.
(iv) Due to the tidal water currents, the flow of water being 3.1 obstructed by the vessels in the channel, turns and pushes towards the sides of the creek, breaking the bunds and destroying the Khazan lands.
(v) The turbulence in the water also makes navigation across the channel difficult, thereby causing hardship and danger, for the movement of the fisherfolk's small canoes.
(vi) The embankment on both sides of the river is also collapsing in places and is shored up with cement concrete in some areas by the companies.
(v) in addition there is a lot of sound pollution caused by sand/shot blasting while repairing vessels."
5. The applicants have suggested following questions for consideration:-
(i) Whether these companies (Resp. Nos. 7 to 13) have all permissions to operate and conduct their business;
(ii) Whether they have encroached into the creek by constructing structures or dumping mud, and whether these are obstructing the flow of the creek;5
(iii) The extent of the pollution in the creek caused by the ship repair works and the manner in which the pollutants can be removed, and estimated costs for the same.
(iv) The manner in which the ship building and barge repair activity can be regulated, so that there is no longer any encroachment in the creek from such stationary vessels.
Procedural History - stand of the respondents
6. The application was filed on 14.01.2016 and came up for hearing on 04.02.2016 when the Tribunal issued notice to the Respondents, including the Project Proponents (PPs), State PCB, GCZMA and Captain of Ports who have filed their respective replies.
7. Reply of GCZMA is that the Bombay High Court at Goa vide judgment dated 30.07.2017 in PIL No.6/2013 held that GCZMA could not have granted permission for the barge repair activity and only MoEF&CC could grant such permission. The High Court directed that status quo may be maintained for six months to enable requisite permission after which the activity will not be allowed unless permission is granted. The time was extended upto 05.07.2018 and thereafter liberty was given to the parties to approach this Tribunal. The GCZMA gave show cause notices but the proceedings were finally dropped on 23.09.2021, in view of permission granted by the Captain of Ports and on the ground that the matter was pending before SEIAA, as revised CZMP had been not finalized as per 2011/2019 CRZ notifications. However, with regard to M/s Sachita Engg.
Works and M/s Ferromar Shipping Pvt. Ltd. directions for restoration of the area were issued and compensation of Rs. 5 lakhs and 10 lakhs respectively was required to be paid. Relevant extracts from the status report filed by the GCZMA on 10.11.2021 are reproduced below:-
6"4. That a show cause notice dated 21.09.2018 was issued to M/s Desa Engg. Works (Respondent No. 10) in reference to one complaint dated 11.07.2018 made by Mr. Probre Jesus Vaz regarding barge repair activity in the river Zuari. The said complainant has also filed PIL bearing No. 6/2013 before Hon'ble High Court of Bombay at Goa being aggrieved by the barge repair activity undertaken in the Zuari river which was taking place after permission dated 27/01/2010 and 01/02/2010 granted by GCZMA to M/s Desa Engineering works. Hon'ble High Court of Bombay at Goa vide judgment dated 31/07/2017 had disposed off the petitions (bearing no.6 & 10/2013 filed by Mr. Antonio Fernandes & Ors. and Voice of Villagers) by quashing the permissions granted by GCZMA with a view that the competent Authority to grant permission in this case is MoEF, Government of India. Further, M/s Desa Engineering was granted status quo for a period of 6 months to get the required permission from MoEF. After the expiry of this period of 6 months, M/s Desa Engineering has been seeking extension of the period of status quo from Hon'ble High Court of Bombay at Goa from time to time with last such extension granted expiring on 5th July 2018 wherein the court also directed M/s Desa Engineering to approach Hon'ble NGT for any further orders.
5. Based on the application filed before Hon'ble Tribunal, inspection report of the Expert Member of GCZMA and Survey report dated 30/06/2016 of the DSLR an illegal activity resulting in blatant and serious violation of CRZ Notification 2011 was noticed. Accordingly show cause notices dated 18/09/2020(6no's)were issued to M/s A.V. Salgoancar, Dock and Shipyard, Ship Building & repairing, Maddant Cortalim.(Respondent No. 7), M/s Saparia Dock Steel Pvt. Ltd., Ship building and repairing Maddant, Cortalim. (Respondent No. 8), M/s Sardesai Egg Works Dockyard ad ship building and repairing, Maddant, Cortalim,(Respondent No. 9), M/s Vipul Engg Works Dock, Slipway, ship building and repairing Maddant, Cortalim,(Respondent No. II), M/s SanchitaEngg Ship building and Repairing C/o Shirodkar Engg Chovoth, Cortalim (Respondent No. 12)and M/s Ferromar Shipping Pvt Ltd Ship building and Repairing, C/o Agarwal Shipyard Chovoth, Cortalim.(Respondent No. /3).The office of GCZMA was in receipt of replies from the Respondents on the show cause notices issued by Authority.
PROCEEDINGS BEFORE GCZMA:
A. Show Cause Notice dated 21.09.2018 issued to Respondent No. 10:
6. The GCZMA in its 194 th meeting held on 15.03.2019 observed and held as under:
The authority heard the concerned parties in the matter. The authority noted that it had issued a show cause notice only to verify the question of whether the period of stay has been extended further by Hon'ble NGT to M/s. Desa Engineering. The authority noted that the respondent has sought several 7 extensions from the Hon'ble High Court of Bombay at Goa and also sought reliefs/clarifications from the Hon'ble National Green Tribunal and Supreme Court of India on various occasions. The authority noted that it had granted permission/N.O.C to the respondent for dry dock and repair work in the year. The permission/N.0.C granted by the GCZMA were set aside by the Hon'ble High Court of Bombay at Goa vide judgment order dated 31/07/2017 with a direction to the Respondent to approach the Competent Authority to take approval for construction of dry dock The applicant had already completed construction of dry dock based on the earlier N.O.C permission from GCZMA when the order dated 31/7/2017 was passed by Hon'ble High Court. The authority noted that pursuant to orders of the Hon'ble High Court, the respondent has applied to State Environment Impact Assessment Authority (SEIAA) which is the competent authority to grant necessary permission for the said dry dock The State Environment Impact Assessment Authority (SEIAA) has presently kept the application of the respondent in abeyance due to bar imposed by Hon'ble NGT for development Page 19 of 25 activity vide its order dated 22/11/2017 passed in the Mehdad & Anr. V/s Ministry of Environment, Forests & Climate Change &ors. The authority noted that the NGT order dated 19%09 2018 in MA no.1343/2018 in Mehdad v/s MoEF & CC Ors. has allowed the respondent to undertake barge repair work with a clarification that if the repair activity is found to be minor in nature not amounting to 'development activity', as it is not barred by its order dated 22/11/2017. The authority further took note of dated 20/12/2018, forwarding the view of Captain of ports pertaining to list of activities with pertain to repairs and not development. It is the case of the respondent that the activities at site are of minor nature and hence not covered under term `Development'. It is the case of the Complainant/petitioner the said dry dock is now operating without any permission/NOC from competent authority. The authority observed that the orders of the Hon'ble High Court of Bombay at Goa in the year 2017 and the recent order of the Hon'ble NGT dated 19/09/2018 have not clarified the position about the existing dry dock The present case has unique facts as the applicant who has already constructed the dry dock has been directed to obtain a permission/NOC from competent authority by the Hon'ble High Court of Bombay at Goa and the Goa Slate Environment Impact Assessment Authority (GSEIAA) is unable to consider the application on its merits. The authority after considering peculiar facts and circumstance noted that Goa State Environment Impact Assessment Authority (GSEIAA) is seized of the matter and is yet to take final decision in the matter. Considering the above the Authority resolved to discharge the Show Cause Notice issued to respondent.
The matter before Goa State Environment Impact Assessment Authority (GSEIAA) is pending as the CZMP for State of Goa has not been finalized.8
A copy of the relevant pages of the GCZMA 194th meeting held on 15.03.2019 is annexed herewith as ANNEXURE A. B. Show Cause Notices dated 18.09.2020 issued to Respondent No. 7, 8, 9, 11, 12 & 13:
7. During 231 st GCZMA meeting held on 15/10/2020, the Counsel of the Respondents sought for time to argue the matter. The Authority decided to grant time by fixing the matter on 29/10/2020 at 3.30. pm.
8. The matter placed for hearing during 233rd GCZMA meeting held on 29/10/2020. Wherein Counsel of the Respondents8, 9, 11, 12, and 13 were present. The Notice addressed to A. V. Salgaonkar (Respondent no. 7) was returned back with a postal endorsement "Addressee expired Returned to Sender", the Authority directed the Complainants to place on record the names and addresses of the legal heirs. The Counsel for the respondents submitted as under:
a) that the activities carried out by them are foreshore which is permitted under the CRZ notification 2011 and that they were in existence prior to 1991.
b) Further the allegations that the respondents have done encroachment post 1991 are incorrect including the plan prepared by the DSLR which has not superimposed the correct picture.
c) the plan does not indicate the extent of area of encroachment done by the Respondent.
The Complainant were asked by the Authority as to whether they have got anything to substantiate to which they stated that they have nothing to say, however, the Authority deemed it fit to call upon both the parties to file written arguments by posting the matter on 19/11/2020 at 3.30 p.m. However none appeared on 19/11/2020. The Authority decided to issue fresh hearing notices to all the affected parties along with complainant.
9. On 10/12/2020 in 239 th meeting the Complainant namely Antonio and Joaquim were present. The Ld. Adv. for the Respondents was also present and prayed for time. The Authority granted the time and adjourned the matter on 07/01/2021 at 3.30pm. However, the said meeting was postponed to 25/01/2021.
10. During 244th meeting held on 25/01/2021. The Complainants were present in person. Ld. Adv A Bhobewas present for Salgaonkar Shipyard. Ld and Adv Girish Sardessai was present for four Shipyards and argued the matter stating that the structures are very old and are shown in the survey plan and prayed for time to produce the copy of the affidavit filed by the Captain of Ports before the Hon'ble Supreme Court. The Authority decided to call the old cadastral plans and reports from the Captain of Ports and Goa State Pollution Control Board to focus on the issue involved in the present matter. The Matter was posted on 04/02/2021at 3.30 pm.
11. During 246th GCZMA meeting held on 04/02/2021 Ld. Adv Ashwin Bhobe was present for Salgaonkar Shipyard and Adv 9 appeared for other Respondents. The complainant remained present. A letter was received from the Directorate of Settlement and Land Records stating that no cadastral survey records are available with the Office. The Report from the Captain of Ports received was placed on record. Advocate Bhobe pointed out the reply and permissions for Salgaonkar shipyard. Further stated that it is the oldest jetty operating from 1968. The authority after hearing both the parties decided to call the official from the Captain of Ports Department to explain the map and posted the matter on 11/02/2021 at 3.30 pm.
12. During the 248th meeting held on 11/02/2021 official from the captain of ports remained present for hearing. Ld Adv Ashwin Bhobe remained present for respondent Salgaonkar Shipyard and Adv Lad appeared for respondent No. 8, 9, 11, 12 and 13. Authority after hearing the parties the matter was posted on /2021.
13. During the 249th GCZMA meeting held on 18/02/2021, the officials from Captain of Ports were absent. Authority noted that officials from Captain of Ports didn't appear before Authority and the authority after hearing the parties the matter was posted for 25/02/2021. The Authority adjourned the matter on 25/02/2021 at 3.30pm and directed that captain of Ports may be asked to depute officials well conversant with matter along with the documents.
14. During the 251st meeting held on 25/02/2021, the officials from Captain of Ports was present. The authority after hearing both the parties decide to superimpose the Cadastral map which are in possession of the Captain of Ports with the maps from DSLR. The matter was further posted for 02/03/2021.
15. During the 252nd GCZMA meeting held on 02/03/2021. The Complainants were present in person and stated that the Dry dockyards which are available in private land is not shown in the plan. The officials from Captain of Ports Department were present and produced the area statement of the land leased by the Captain of Ports. Surveyor from DSLR was also present. The Authority after hearing the parties decided to write to Village Panchayat of Lotulim to furnish the copies of documents produced by the Respondents and the permission granted along with the documents. Further the Captain of Ports was directed to prepare the plan showing the area of land granted by them on lease to the Respondents and how much area can be granted under the Indian Port Act. The matter was posted on 11/03/2021 at 3.30pm.
16. 0n 11/03/2021the Authority postponed the said matter to 25/03/2021. However, Items as per Agenda from Case No.1.1 to 1.23 (subject case) could not be taken up for discussion on 25/03/2021 as the Secretary Environment & CC and the Chairman CRZ was busy with administrative work and hence this agenda items from serial No.1.1 to 1.23 stood adjourned and fixed for hearing on 30/03/2021 at 3.30 pm. On 30/03/2021 the matters were postponed and decided to issue fresh hearing notices. Fresh notices were issued to both the 10 parties for personal hearing scheduled on 01/07/2021 at 3.30 pm.
17. During 263rd meeting held on 01/07/2021 Adv Balkrishna Sardessai who was appearing for Respondent No. 8, 9, 11, 12 and 13 communicated his adjournment application via Email stating his personal difficulty to attend the hearing. The Authority after considering the Email sent by the Respondent No. 8, 9, 11, 12 and 13requesting for adjournment decided to grant the time in the matter and the matter was accordingly posted on 06/07/2021.
18. During 264 th GCZMA meeting held on 06/07/2021,Adv A Bhobe was present for Salgaonkar Shipyard and Ld Adv Balkrishna Sardessai was present for four Shipyards being Respondent Nos. 8, 9, 11, 12 and 13 Representatives of Captain of Ports was present. However, the Complainant Mr. Salu D'Sauza was absent. The Authority noted that since the Complainant was absent and in the interest of natural justice matter was posted for hearing on 29/07/2021 at 3.30 p.m. However,the authority meeting could not be held on 29/07/2021 due to Legislative Assembly session.
19. During 268th meeting held on 19/08/2021, the Authority decided to furnish a copy of the plan and further posted the matter for arguments on 26/08/2021 at 3.30 p. m. The authority further directed Captain of Ports to identify the offending structures on the site which have appeared on survey plan and fix responsibility of constructing those on parties concerned at the ground by doing filed inspection and local enquiry. However, the meeting scheduled for 26/08/2021 was postponed to 02/09/2021 at 3.30 pm.
20. During 270th meeting held on 02/09/2021,the Authority after detailed discussion posted the matter on 23/09/2021 at 3.30 pm for final arguments with the opportunity to complainant to put up defence upon obtaining plan submitted by Captain of Ports.
21. The matter was placed in the 272nd MEETING held on 23/09/2021 for final hearing wherein the Authority decided as follows:
The Authority pursuant to mapping plan submitted by the office of DSLR, a show cause notice dated 18/09/2020 was issued by authority to the respondents. The respondents have filed their detailed replies to the respective show cause notice.
M/s A V SalgoancarLtd:- With regard this respondent the authority perused detailed reply dated 13/01/2021 filed by the respondent interalia stating that the jetty was existing prior to 1991, produced permission from Captain of Port dated 09/06/1965 for construction of additional slipway adjoining the existing Cortalim Workshop, tax receipts imposed by Village Panchayat of Cortalim and rental charges paid to Captain of Ports. It is the case of the respondent that DSLR report is incorrect as there is basis for claiming that there are extensions in the water body.11
The matter involves water front/forshore usage and hence the authority has sought assistance from the officials of Captain of Ports to effectively decide the matter. The authority further had directed the parties to show further documents vis-a-vis the area possessed by them individually. The Captain of Ports DSLR were also requested to superimpose the plan prepared by DSLR depicting the area of land allotted granted on lease to respondents to the concerned docks.
A plan was submitted by the Captain of Ports vide letter dated 06/07/2021 showing extent of area covered under N.O.C. of Captain of Ports. The said letter dated 06/07/2021 along with plan was circulated to all the parties before the authority. The Complainant also filed their say vide representation dated 23/09/2021.
The Authority perused the DSLR plan earlier prepared in the year 2016, reply along with documents filed by the respondents, plan prepared by the Captain of Ports and also rejoinder filed by the Complainant in the matter. The Authority noted that M/s A V Salgaoncar Ltd has submitted relevant documents interalia depicting area under their possession and jetty prior to 1991. The Captain of Ports have also indicated in their plan that water frontage area of 7500 sq mtrs has been granted by them. The authority noted the permission for use water frontage was infact granted in the Captain of Ports in the year 1965. In view of the above permissions granted by Captain of Ports and other documents on record the authority decided to discharge show cause notice issued against M/s A V Salgaoncar Ltd.
M/s Saparia Dock Steel Pvt Ltd: With regard to this respondent Inquiry has revealed that there is permission issued by the Dy. Captain of Ports Mormugao for use of plot in the year 1964. Also the permission issued by Captain of Ports for utilization of river bank land in the year 1972 along with Registration certificate of establishment issued by office of labor inspector in the year 1984. The unit placed on record consent to operate issued by the GSPCB dated 11-04- 2011. The unit has also placed on record order of regularization of existing old ship yard by GCZMA dated 09- 02-2011.
Upon hearing the representative of the unit the concerned officials from the Captain of Ports department were required to clarify the extent of area for which permission was issued so as to analyse whether the activities undertaken by the unit M/s. Saparia Dock Steel Pvt. Ltd. amounted to encroachments in contravention of permissions granted.
The Captain of Ports have furnished their report along with map and indicated the area of permission that the unit was allotted way back prior to 1991 and in consideration 12 therewith it is advanced that the undertaken activities are within the permissions granted by the competent authority at the relevant time. The Captain of Ports have also indicated in their plan that water frontage area of 2880 sq mtrs has been granted by them.
After hearing the parties and officials at several hearings it has been concluded that the activities of the unit M/s. Saparia Dock Steel Pvt. Ltd is not in contravention of permissions granted, as such the unit Sardessai Engineering Works is discharged from the Show Cause Notice issued by this office.
The authority noted the permission for use water frontage was inflict granted in the Captain of Ports in the year 1972. In view of the above permissions granted by Captain of Ports and other documents on record the authority decided to discharge show cause notice issued against Saparia Dock Steel Pvt ltd.
M/s SardesaiEngg Works: With regard to this respondent Inquiry has revealed that there is permission issued by the Captain of Ports for conducting activity of dry dock and detailed permission was placed on record which was issued in the year 1971. Also the permission issued by Health Centre in the year 1968 to undertake barge repair and machine shop work at Cortalim along with Certificate of Registration issued by the Directorate of Industries in the year 1973. The unit placed on record consent to operate issued by the GSPCB dated 19-08-2015 so also permission issued by the GCZMA dated 12-03-2015 to the pre-existing unit. Upon hearing the representative of the unit the concerned officials from the Captain of Ports department were required to clarify the extent of area for which permission was issued so as to analyse whether the activities undertaken by the unit Sardessai Engineering Works amounted to encroachments in contravention of permission granted.
The Captain of Ports have furnished their report along with map and indicated the area of permission that the unit was allotted way back prior to 1991 and in consideration therewith it is advanced that the undertaken activities are within the permissions granted by the competent authority at the relevant time. The Captain of Ports have also indicated in their plan that water frontage area of 9000 sq mtrs has been granted by them.
After hearing the parties and officials at several hearings it has been concluded that the activities of the unit Sardessai Engineering Works is not in contravention of permissions granted, As such the unit Sardessai Engineering Works is discharged from the Show Cause Notice issued by this office.13
The Authority decide to continue further hearing with respect of M/s Vipul Engg Works Dock, M/s Ferromar Shipping Pvt Ltd. and M/s. Sachinda Engg. The Authority further decided to initiate fresh proceedings against Inas Caetano D'Souza, Anthony Engg Works, Arcanjala D'Souza, Aspergeate Desa and Lucy Alvares as per report of the Captain of Ports and copy of notice to be sent to Goa State Pollution Control Board(GSPCB). The next meeting is fixed on 07/10/2021 at 3.30 pm. A copy of the relevant pages of the GCZMA 272nd MEETING held on 23/09/2021 is annexed herewith as ANNEXURE B.
22. In the 274th GCZMA meeting held on 07/10/2021. The Complainant Mr. Salu Dsouza was present in person. Adv. Balakrishna appeared for respondents filed following documents and argued the matter. In the said meeting it was decided as follows "The Authority after hearing both the parties decided to post the matter for further arguments on 21/10/2021 at 3.30 pm. Further fresh cases to be opened against 5 violators identified by the Captain of Ports after survey."
23. The matter was fixed for personal hearing in the 276th GCZMA meeting held on 21/10/2021 and 23/10/2021 wherein it was decided as follows:- "The Authority discussed and deliberated on the matter pertaining to M/s. Ferromar Shipping Pvt Ltd and Vipul Engineering Works Dock. The Authority perused the documents filed by the respondent and submission made by the Complainant. The Authority noted that the Captain of Port has earlier already submitted a plan showing extent of area covered under N.O.C of Captain of Ports.
With regard to matter of Ferromar Shipping Pvt Ltd, the Authority noted that the said Respondent has been granted area of 336 sq mtrs and additional water frontage area of 1050 sq mtrs by Captain of Ports in the year 2004. The Authority observed that the Respondent has produced Certificate's dated 22/07/1972 and 27/01/2020 issued by Captain of Ports, Certificate of Registration of Small scale industries issued by Directorate of Industries and Mines dated 03/10/1968, N.O.0 dated 05/08/1999 issued by Village Panchayat Cortalim, Form 1 & XIV of Survey no.43/1, 3, 4, 5 Cortalim village, Mormugao, Renewed NO.0 from the Captain of Ports dated 26/02/2016 & 27/01./2020, House Tax and Trade Tax receipts issued by Village Panchayat of Cortalim dated 22/05/2020, Consent to Operate under Air and Water Act issued by Goa State Pollution Control Board dated 21/10/2015 and 22/09/2020. In view of permissions granted by Captain of Ports and other documents on record the authority decided to discharge show cause notice issued against Ferromar Shipping Pvt Ltd.
With regard to matter Vipul Engineering works, the Authority noted the inquiry has revealed that the Respondent has a NO.0 dated 26/09/1974 issued by Captain of Ports for construction of dry dock, construction 14 licence of the year 1974-1975 issued by Village Panchayat of Cortalilm/Quelossim for dry dock and further 1V.O.C's dated 06/01/2017 and 05/10/2020 issued by Captain of Ports. The Captain of Ports has further confirmed an total area 2472 permitted by them inclusive of water frontage. In view of the above permissions granted by Captain of Ports and other documents on record the authority decided to discharge show cause notice issued against Vipul Engineering works.
The Authority further decided to hear the matter of M/:s Sachida Engineering Works and posted the matter on 28/10/2021 at 2.30pm for final arguments by keeping in mind the directives of the Hon'ble NGT.
A copy of the relevant pages of the 276th GCZMA meeting held on 21/10/2021 and 23/10/2021 is annexed herewith as ANNEXURE C.
24. The matter was fixed in the 277th GCZMA meeting held on 02/11/2021 wherein it was decided as follows:- "The Authority noted that it had earlier discharged the M/s Ferromar Shipping Pvt Ltd for the areas allotted and verified by Captain of Ports as depicted in their plan. The Authority observed that there is area having 2177 sq mts with water logged portion and slip way. The Authority noted the M/s. Ferromar Shipping Pvt Ltd claims that said area belongs to them and utilised for foreshore activities. The Respondent M/s Ferromar Shipping Pvt Ltd has failed to produce on record any document depicting as which authority has given permission pe mission for the same. The Captain of Ports has clearly indicated that the said area of 2177 sq mts is without any permission from them. The Authority hence decided to direct Respondent M/s Ferromar Shipping Pvt Ltd to restore the said area to its original state at their own cost in 4 weeks failing which Captain of Ports and River Navigation Department will do the same at the cost of Respondent. The Authority further decided to impose cost of Rs. 10 Lakhs to be recovered from the Respondent M/s. Ferromar Shipping Pvt Ltd as compensation for Environmental damage to the area.
25. With Regard to Mis Sachita Engineering, the Authority noted that Captain of Ports has identified area of 1510 sq mts as permitted area. The remaining area of 572 sq mts abutting each slipways hence without any permission from any Authority. The Respondent M/s Ferromar Shipping Pvt Ltd has failed to produce on record any document depicting as which authority has given permission for the same. The Captain of Ports has clearly indicated that the said area of 572 sq mts is without any permission from them. The Authority hence decided to direct Respondent M/s Sachida Engineering to restore the said area to its original slate at their own cost in 4 weeks failing which Captain of Ports and River Navigation Department will do the same at the cost of Respondent. The Authority further decided to impose cost of Rs. 5 Lakhs to be 15 recovered from the Respondent M/s Sachita Engineering as compensation for Environmental damage to the area."
A copy of the relevant pages of the 277th GCZMA meeting held on 02/11/2021 is annexed herewith as ANNEXURE D. FINDINGS/FINAL ORDERS:
26. That based on the aforesaid, the GCZMA passed the following orders with respect to allegations made in the captioned matter against the Respondent Docks being Respondent Nos. 7-13:
a) M/s A.V Salgaonkar (Respondent No. 7): Proceedings Discharged interms of decision taken in the 272nd GCZMA Meeting vide Order dated 22/10/2021 which is annexed herewith as ANNEXURE E.
b) M/s Saparia Dock Steel Pvt. Ltd. (Respondent No. 8):
Proceedings Discharged interms of decision taken in the 272nd GCZMA Meeting vide Order dated 22/10/2021 which is annexed herewith as ANNEXURE F.
c) M/s Sardesai Engg. Works (Respondent No. 9):
Proceedings Discharged interms of decision taken in the 272nd GCZMA Meeting vide Order dated 22/10/2021 which is annexed herewith as ANNEXURE G.
d) M/s Desa Engg. Works (Respondent No. 10): Proceedings Discharged interms of decision taken in the 194th GCZMA Meeting vide Order dated 27/05/2019 which is annexed herewith as ANNEXU RE H. The matter before Goa State Environment Impact Assessment Authority (GSEIAA) is pending as the CZMP for State of Goa has not been finalized.
e) M/s Vipul Engg. Works (Respondent No. 11): Proceedings Discharged interms of decision taken in the 276th GCZMA Meeting vide Order dated 25/10/2021 which is annexed herewith as ANNEXURE I.
f) M/s Sachita Engg. Works (Respondent No. 12): The Authority noted that Captain of Ports has identified area of 1510 sq mts as permitted area. The remaining area of 572 sq mts abutting each slipways are without any permission from any Authority, thus, the Authority in reference to GCZMA 277 th meeting vide order dated 09/11/2021 directed Respondent No. 12 to restore the said area to its original state at their own cost. The Authority further imposed cost of Rs. 5 Lakhs to be recovered from the Respondent No. 1.2 as compensation for Environmental damage to the said area. A copy of Order dated 09/11/2021 is annexed herewith as ANNEXURE J.16
g) M/s Ferromar Shipping Pvt. Ltd. (Respondent No. 13): The Authority noted that it had discharged the M/s Ferromar Shipping Pvt Ltd for the areas allotted and verified by Captain of Ports as depicted in their plan being 336 sq mtrs and additional water frontage area of 1050 sq mtrs. The Authority observed that there is additional area of 2177 sq mts with water logged portion and slip way which Respondent No. 13 has failed to produce on record a document depicting as which authority has given permission for the same. Thus, in reference to GCZMA 277th meeting, the Authority vide order dated 09/11/2021 directed Respondent No. 13 to restore the said area to its original state at their own cost. The Authority further imposed cost of Rs. 10 Lakhs to be recovered from the Respondent No. 13 as compensation for Environmental damage to the area. A copy of Order dated 09/11/2021 is annexed herewith as ANNEXURE K."
8. The stand of the State PCB is that violation of Air (Prevention and Control of Pollution Act, 1981 and the Water (Prevention and Control of Pollution Act, 1974 was found and direction was issued to the units in question to take remedial action. Relevant extracts from the said affidavits are as follows:-
"I state that a synopsis of the statutory directions issued by the Board to the Respondent units is tabulated as below:
Sr. Name of the Action taken by GSPCB
No. Unit
1 M/s. Ferromar Directions dated 20/4/2016 have been
Shipping Pvt. issued to the unit under section 31 (A) of the
Ltd. Air Act and under 33 (A) of the Water Act;
a) To stop the activity of water blasting inside the river.
b) The waste water generated by water blasting should be treated separately.
c) The unit is directed to submit a compliance report to the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act including issue of closure directions.
2 M/s. Desa Directions dated 20/4/2016 has been issued Engineering to the units under section 31 (A) of the Air Act Works and under 33 (A) of the Water Act;
17 The amount of wastewater produced during pressure water-blasting operations is to be minimised by recycling and reusing the wastewater.
Spray drift of the cleaning solution and resultant wastewater is to be prevented from escaping from the immediate zone of the working surface.
Wastewater should be disposed of either to a sewer or to on-site storage in pressure a sealed container.
Solid residues produced as a result of the cleaning process are to be stored on site in a sealed container.
All stored liquid and solid wastes are to be collected by a licensed waste/transport business and taken to a licensed disposal, treatment or storage facility.
The unit is directed to submit a compliance report to the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act including issue of closure directions.
3 M/s. Shaparia Directions dated 20/4/2016 has been issued Dock and Steel to the units under section 31 (A) of the Air Act Company Ltd. and under 33 (A) of the Water Act;
a) to apply for the renewal of consent to operate.
b) to stop the activity of water blasting inside the river. The waste water generated by water blasting should be treated separately.
c) The unit is directed to submit a compliance report to the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act including issue of closure directions.
4 M/s. Vipul Directions dated 20/4/2016 has been issued Shopping to the units under section 31 (A) of the Air Act Engineering and under 33 (A) of the Water Act.
Works
To provide toilet facility and
septic tank/soak pit for the unit.
The amount of wastewater
produced during pressure water-blasting operations is to be minimised by recycling and reusing the wastewater.
Spray drift of the cleaning solution and resultant wastewater is to be 18 prevented from escaping from the immediate zone of the working surface.
Wastewater should be disposed of either to a sewer or to on-site storage in a sealed container.
Solid residues produced as a result of the cleaning process are to be stored on site in a sealed container.
All stored liquid and solid wastes are to be collected by a licensed waste transport business and taken to a licensed disposal, treatment or storage facility.
The unit is directed to submit a Compliance report to the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act including issue of closure directions.
5 M/s. Sardessai Directions dated 20/4/2016 has been issued Engineering to the units under section 31 (A) of the Air Act Works and under 33 (A) of the Water Act;
The amount of wastewater produced during pressure water-blasting operations is to be minimised by recycling and reusing the wastewater.
Spray drift of the cleaning solution and resultant wastewater is to be prevented from escaping from the immediate zone of the working surface.
Wastewater should be disposed of either to a sewer or to on-site storage in a sealed container Solid residues produced as a result of the cleaning process are to be stored on site in a sealed container.
All stored liquid and solid waste to be collected by a licensed waste are transport business and taken to a licensed disposal, treatment or storage facility.
The unit is directed to submit a Compliance the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act report to including of closure directions.
6 M/s. Sachida Directions dated 20/4/2016 has been issued
Engineering to the units under section 31 (A) of the Air Act
Works and under 33 (A}) of the Water Act.
a) to stop the activity of water blasting inside the river. The waste water generated by water blasting should be treated separately.
19b) The unit is directed to submit a compliance report to the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act including issue of closure directions.
7 M/s. A.V. Directions dated 20/4/2016 has been issued
Salgaonkar to the units under section 31 (A) of the Air Act
Works and under 33 (A) of the Water Act;
a) To apply for the Consent to operate.
b) To stop the activity of water blasting inside the river. The waste water generated by water blasting should be treated separately.
c) The unit is directed to submit a compliance report to the Respondent Board failing which the Board will initiate stringent legal action as per the provision of the Water Act and the Air Act including issue of closure directions.
A copy of the report of inspection conducted by the Board on 21/03/2016 and 28/1/2016 along with the directions dated 20/4/2016 issued to the Respondent units is annexed herewith and marked as 'Exhibit-A' Colly.
7. I state that on receipt of the compliance reports from the respondent units, the Board will initiate further appropriate action in terms of the provisions of the Water Act and the Air Act in order to ensure that the pollution in the vicinity caused due to the operation of the respondent units is prevented and controlled.
8. I state that the Board was also in receipt of a letter dated 30th December 2015 from Mr. Jose Lucas and Maria Santana Fernandes residents of Cortalim Goa seeking to withdraw their complaint dated 25/11/2015 filed by them with the Respondent Board as aforestated.
Annexed herewith and marked as EXHIBIT -B colly is a copy of letter dated 30/12/2015 as aforestated.
9. I state that the Respondent Board under the National Water Monitoring Programme (NWMP) monitors water (within its stretch from its upstream to downstream portion) four locations namely (a) Panchawadi, (b) Cortalim, (c) Madkai and (d) Borim. Under the said programme, physico-chemical parameters and microbial parameters are monitored on monthly basis while, metal concentration measured in mg/1 (i.e. Iron- Fe, Chromium - Cr, Lead - Pb, Zinc -Zn, Nickel - Ni and Copper - Cu) 1s monitored on annual basis. I state that based on the data compilation and interpretation of metal concentrations 20 analyzed during the period from 2010/11 - 2014/15, it is observed that-
a. Concentrations of all the metals analyzed are either Below Detection Limit (BDL) or well within the CPCB-prescribed limits if made applicable for waste-water discharge for paint industry.
b. Fe is dominant metal present in Zuari coastal waters.
c. Although specific trend (.e. annual no in metal concentration is observed in river waters, certain locationspecific variation is noticed such as-
(i) At Panchwadi, Fe concentration shows relatively decreasing trend from 2011/12 (1.14 mg/} to 2014/15 (0.144 mg/). Further, Cr, Pb, Zn and Cu are reported to be Below Detection Limit (BDL).
(ii) At Cortalim, Fe is relatively higher during 2012/13 (1.63 mg/l) as compared to other years. Ni content shows slightly increasing trend from 2012/13 onwards.
(iii) At Borim, Fe concentration is relatively higher in 2014/15 (0.289 mg/l than in year 2013/14 (0.156 mg/l). Other metal concentrations are either BDL or shows decreasing trend.
(iv) At Madkai, All the metal concentration shows decreasing trend from 2013/14 onwards except Fe which is relatively higher in 2014/15 (0.774 mg/l) than in year 2013/14 (0.273 mg/l). A copy of the report of analysis of data compilation and interpretation of metal concentrations analyzed during the period from 2010/11 - 2014/15, as aforestated is annexed herewith and marked as EXHIBIT C.
10. I state that the Respondent Board has taken cognizance of the complaint filed by the Applicants before it, which is also the subject matter of the present application. I state that the Respondent Board in this regard has also conducted site inspections and issued statutory directions under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 to the Respondent units. I state that the Respondent Board will ensure that pollution in the vicinity caused due to the operation of the respondent units is prevented and controlled."
9. The stand of the Captain of Ports is that NOC has been issued to all the private respondents except R-10 prior to CRZ Notification 199. R-
10 has been given NOC in 2010. The validity of NOC has not been extended except R-10. The shipyard of R-7 bears disserted looks. Shipyards of R-9 is unused. Relevant extracts from the said replies are:-
"4. With reference to Paragraph Nos. 4 the contents thereof are denied to the extent that the same are contrary to and inconsistent to 21 what is stated herein. I state that it is true that Respondent No 4 has filed an affidavit disclosing that all the companies/respondents 7 to 13 have given permission to set up shipyard after scrutinizing all the documents and no objection certificates from the concerned authorities if found in order as per the rules inspecting the site and demarcating the area in the riverine land at Cortalim. I further state and submit that the contention stated by the applicant is true that the Respondent No.7-9 & 11- 13 has been issued NOC by this department prior only to CRZ Notification 1991, whereas Respondent No.10 was issued NOC after CRZ approval obtained in 2010. I state that the after expiring of the NOC's, the parties has not approached neither applied to extend the validity of the NOC due to the steep downfall in mining activities hence the department have not inspected the site. Only NOC of the Respondent No.10 have been extended after inspection and after obtaining NOC from Concerned Authorities. I state and submit that it is true that the shipyard belonging to Respondent No.7 bears a deserted look and the shipyard plot of Respondent No.9 also appears to be lying unused. In my respectful submission due to closure of mining activities the barges are not plying and the owners have stationed these barges close to the yard i.e. in the creek of Zuari River. I state that the Respondent No 4 have initiated the procedure and Will carry out site inspection and will serve Notices to the owner of the vessels to remove the same from the creek of Cortalim, Zuari river, I further state that the channel creek of Cortalim is clear as the Barges go for repair at the dry dock of Respondent No. 10 without any navigational problem. In my respectful submission there are no such blockage in the channel as stated by the Applicant, however, this department will always ensure that the navigational channel remains a clear at all times."
10. Inspection report dated 14.06.2016 filed by the Captain of Ports is as follows:-
" Nos. Name of the Vessel berthed at Activities Remarks Companies water frontage 1 M/s. A.V. 09 nos. Non Detail of vessel is Salgaonkar operational placed at page no.
Works 1 no. grounded 145/C
2 M/s. Shaparia 1 nos. barges Operational Detail of vessel is
Dock and Steel placed at page no.
Company Ltd. 3 nos. new vessel 145/C
under construction
3 M/s. Sardessai Nil Non Nil
Engineering operational
Works
22
4 M/s. Desa 5 nos. Operational Detail of vessel is
Engineering placed at page no.
Works 145/C
5 M/s. Vipul 2 nos. new vessels Operational Detail of vessel is
Shopping placed at page no.
Engineering 145/C
Works
6 M/s. Sachida 1 no. new vessel Operational Detail of vessel is
Engineering placed at page no.
Works 145/C
7 M/s. Ferromar 1 no. new vessel Operational Detail of vessel is
Shipping Pvt. placed at page no.
Ltd. 145/C
During the above said inspection, the physical verification carried out and observed that about 10 Nos. old/damage condition vessels/pontoon was parked infront of M/s. A.V. Salgaocar workshop out of which pontoon Balvan is grounded and causing water pollution and same is to be remove immediately. The other unused/damage vessels also to be removed to avoid further grounding and river frontage to be maintain in pristine condition."
11. Further affidavit filed on 08.11.2016 is as follows:-
"3. I am filing this affidavit to limited extend of bringing on records certain facts in terms of order dated 23/09/2016 the affidavit respondent his right to file such additional affidavit using the course of the proceeding if need.
Sr. Name of the Area allotted as Authorized Unauthorized
No. Companies per NOC for structure structure in
water in water water body in
frontage/Riverine body Sq. Sq. Mtrs.
land Mtrs. apprx.
apprx.
1 M/s. A.V. 7500 Water - 1800.00
Salgaonkar frontage
Works
2 M/s. Shaparia 2880 Water - 780.00
Dock and frontage
Steel
Company Ltd.
3 M/s. 9000 Water - 3710.00
Sardessai frontage
Engineering
Works
23
4 M/s. Desa 1947 Riverine land 1947.00 170.00
Engineering
Works
5 M/s. Vipul 2472 Water 1304 -
Shopping frontage/Riverine
Engineering land
Works
6 M/s. Sachida 1510 Water 946 833
Engineering frontage/Riverine
Works land
7 M/s. Ferromar 1050 Water 336 2039.00
Shipping Pvt. frontage
Ltd.
4. However, prima facie it appears that these protrusion which are called unauthorised structure in the water body appears to be old bund/banks created in the river frontage due to siltation and also presence of Mangroves/ other trees over the years.
5. I state that on inspection it was noticed that some vessels were repaired and moved from the Creek within stipulated period. However, due to cessation of mining activities during the monsoon season the barges are not plying and the owner's have stationed these barges close to the yard for repair/maintenance work.
6. Nonetheless, I respectfully state that the channel creek of Cortalim is clear & navigable as the barges go for repairs at dry docks of Respondent No. 10 without any navigation problem. I respectfully state submit that the assertion of applicant the creek and channel of the Zuari river are blocked is entirely untrue and misplaced in presence facts and circumstance. In my case I humbly state and submit that affiant respondent will take every action and report in terms of the Law to ensure that the creek and channel of the river Zuari remain unobstructed and navigable.
7. I state that notice to Respondent No.9 has also issued communication dated 10/10/2016 served to concerned Shipyard/Dock directing them to contact Goa State Pollution Control Board i.e. Respondent No.3 and make arrangement for access the collection and analysis of samples of water Exhibit "B". "24
Consideration of the matter, Finding and Directions
12. We have heard learned counsel for the parties. Question for consideration is whether activities in question can be allowed without requisite CRZ clearance, in violation of CZMP 1996 merely because revised CZMP has not been prepared and clearances are pending with SEIAA.
Further question is remedial action for violation of environmental norms.
13. Learned counsel for the applicant has submitted that encroachments by the private respondents are causing pollution and violation of CRZ Notification in berthing of vessels which is regulatory foreshore activity, permissible only with requisite CRZ Clearance. Further submission is pollution affecting the traditional fishing rights. In this regard, written submission has been filed as follows:-
"SUBMISSIONS:
11. That the above facts make it clear that the Respondents No. 7 to 13 have encroached into the Cortalim Creek as well as caused severe pollution and damage to the Creek's ecology. Further, the illegal mooring/parking of barges on the creek has adversely affected the traditional fishing rights of the Applicants as well as similarly placed local fishing communities.
12. That it is submitted that the Authorities, especially the GCZMA as well as the Goa SPCB have completely failed to take any action despite there being such clear admission of the violations by the Respondents No. 7 to 13. Further, the Captain of Ports has granted permissions for the construction within the creek without any jurisdiction to grant such permissions.
It may be noted that the area in question falls within CRZ 1A due to the presence of the abundant mangroves. This has also been admitted by the GCZMA in its inspection report dated 29 March 2016. Only activities requiring foreshore activities is permissible in the said area and the Captain of Ports has no authority to grant any permissions under the CRZ Clearance.
13. That it may be noted that Para 8 of the CRZ Notification regulates the activities permissible within the CRZ. The relevant provision is extracted hereinbelow:-
"(V) In CRZ-IV areas,-
The activities impugning on the sea and tidal influenced water bodies will be regulated except for traditional fishing 25 and related activities undertaken by local communities as follows:
(a) No untreated sewage, effluents, ballast water, ship washes, fly ash or solid waste from all activities including from aquaculture operations shall be let off or dumped. A comprehensive plan for treatment of sewage generating from the coastal towns and cities shall be formulated within a period of one year in consultation with stakeholders including traditional coastal communities traditional fisherfolk and implemented:
b) Pollution from oil and gas exploration and drilling, mining. boat house and shipping;
(c) There shall be no restriction on the traditional fishing and allied activities undertaken by local communities."
(Emphasis Added) The encroachments as well as illegal discharge and dumping of waste into the creek as clearly noted by the GCZMA as well as the directions passed by the SPCB, are clearly in violation of the CRZ Notification.
14. That further, the CRZ Notification, 2011 had given special consideration to the CRZ areas of the State of Goa. As per Par 8 (V) (3), the following has been stipulated:-
"3. CRZ of Goa-
In view of the peculiar circumstances of the State Goa including past history and other developments, the specific activities shall be regulated and various measures shall be undertaken as follows:-
i) the Government of Goa shall notify the fishing villages wherein all foreshore facilities required for fishing and fishery allied activities such as traditional fish processing yards, boat building or repair yards, net mending yards, ice plants, ice storage, auction hall, jetties may be permitted by Grama Panchayat in the CRZ area;
...
(iv) the eco sensitive low lying areas which are influenced by tidal action known as khazan lands shall be mapped;
(v) the mangroves along such as khazan land shall be protected and a management plan for the khazan land prepared and no developmental activities shall be permitted in the khazan land;"
It is submitted that in the present case, the area in question has presence of both khazan lands as well as mangroves which are adversely affected by the illegal encroachments by the Respondent No. 7 to 13. Further, the traditional fishing rights of the local fishing communities are protected under the CRZ Notification which are being adversely impacted."
2614. The stand of the Goa PCB, GCZMA and private respondents is that no damage to environment is caused as vessels are meant for transportation of Cargo and not for anchoring. They are anchored only for repairs during monsoon. Neither any encroachment is done nor any damage to the fishing, river or sea is caused.
15. On due consideration of rival contentions, we find that foreshore activities are involved in respect of vessels in question. Vessels are birthed not merely for repairs but have been there for years without requisite CRZ clearance. Permission granted by the Captain of Port for use of water frontage is not be a substitute for the CRZ Clearance, statutorily required as per CRZ Notification. Such clearance is not exempted even if the activities started prior to 1991. What is protected is the construction is already made prior to 1991 and not such foreshore activities for which CRZ Clearance is required. There is also mandate to protect mangroves and khazan land under para 8 of the CRZ Notification. The activities in question fall under para 4 (ii)(f) of the CRZ Notification, 2011 for which the CRZ Clearance is required. The Bombay High Court at Goa dealt with the matter vide order dated 31.07.2017 in PIL W.P. No. 6&10/2016, Mr. Antonio Fernandes & Ors. v. State of Goa & Ors. and held:-
"14. We have considered the contentions of the learned Counsel appearing for the respective parties and with their assistance, we have also proceeded to examine the relevant records. Considering the view we propose to take we shall deal with the first contention raised by the petitioners to the effect that the respondent no.2 GCZMA had no jurisdiction to grant the permission to the petitioners under the relevant CRZ notification. It is not disputed that the subject permission in the present case was granted by the GCZMA in terms of the CRZ notification 1991. The said CRZ notification 1991 which deals with the regulation of permissible activity inter alia provides at clause 3(2)(v) & 3(3)(ii) as under:
3(2)(v) - All other activities with investment of five crores rupees or more:27
Provided that activities involving investment of less than five crores rupees shall be regulated by the concerned authorities at the State or Union territory level in accordance with the provisions of sub paragraph (2) of paragraph 6 of Annexure I of this Notification.
3(3)(ii) - Within the framework of such approved plans, all development and activities within the CRZ other than those covered in para 2 and para 3(2) above shall be regulated by the State Government, Union Territory Administration or the local authority as the case may be in accordance with the guidelines given in Annexures-I and II of the Notification.
19. In such circumstances, we find that the impugned permission granted by the respondent no.2 GCZMA dated 27/01/2010 and 01/02/2010 cannot be sustained and are liable to be quashed and set aside. The respondent no.9 is accordingly directed to approach the competent Authority to get the permissions in terms of the applicable CRZ regulations within 6 months from today. For such period of 6 months, there will be status quo with regard to the existing construction activity carried out by the respondent no.4. Needless to say, all the other statutory permissions obtained from the Captain of Ports, the Village Panchayat Town Planning Authorities would be subject to the permissions if at all granted by the competent authority under the Environment Protection Act. In case no permissions are granted, the concerned Authorities will have to proceed in accordance with law. Mr. S.S. Kantak, learned Senior Counsel appearing for the respondents no.8 & 9, upon instructions, states that the respondent no.9 shall not take any new contract with regard to the repairs of vessels other than the pending contracts which have already been taken by the private respondent no.9. Hence, status quo subject to the said statement of the learned Senior Counsel appearing for the private respondents no.8 & 9 which is accepted and shall automatically be vacated after a period of 6 months."
16. In view of the above, without CRZ clearance activities of the private respondents are not permissible. Mere fact that the CZMP has not been prepared cannot be a ground to continue the said activity as the matter will be governed by already finalized CZMP on 27.09.1996, according to which the area falls under CRZ-I (inter tidal area) calling for CRZ Clearance for regulated activities. As held in judgements of the Hon'ble Supreme Court inter alia in Indian Council for Enviro Legal Action, (1996) 5 SCC 281, Piedade Filomina (2004) 3 SCC 445, Vaamika Island (2013) 8 SCC 760 and Kerala State Coastal Zone Management Authority vs. State of 28 Kerala, Maradu Municipality (2019) 7 SCC 248 (Maradu case), CRZ notification has to be strictly followed. In Piedade, it was held that CRZ Notifications have to be strictly followed as they have issued for protection of environment and ecology of the coastal areas. Uncontrolled activities in such areas have disastrous effect and result in natural calamities. CZMP of the area is to be strictly followed. PCB has found continuing pollution by the activities.
Directions
17. Accordingly, dropping of proceedings against the private respondents by CZMA on the ground of pendency of clearances before SEIAA is not justified. Mere pendency of application for CRZ Clearance cannot be treated as permission to continue such activities. The said activities which are not permissible without CRZ clearance are thus directed to be discontinued within three months from today. Private respondents are also liable to pay compensation for past violations on polluter pays principle to be assessed by the GPCB as per law. For remedial action for past violations and restoration, a restoration plan be prepared by a joint Committee comprising MoEF&CC, NCZMA, GCZMA, CPCB, State PCB and National Institute of Oceanography, (NIO) Goa. The GCZMA will the nodal agency for coordination and compliance. The Committee may meet within one month and finalize its plan within two months thereafter, to be duly executed as per directions of the said Committee expeditiously. Removal of encroachment by vessels and restoration plan may be ensured through the concerned authorities, including Police. The Committee may function for four months to oversee execution and submit its action taken report to Chief Secretary, Goa. Any cost to be incurred in the process will be borne first by State PCB under the public trust doctrine, 29 to be recovered from the private respondents, as mentioned earlier on polluter pays principle.
The application stands disposed of accordingly.
A copy of this order be forwarded to the MoEF&CC, NCZMA, GCZMA, CPCB, State PCB, National Institute of Oceanography, (NIO) Goa, Chief Secretary Goa and DGP, Goa by e-mail for compliance.
I.A. No. 133/2020 also stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM May 11, 2022 Org. Application No. 16/2016(WZ) A 30