Bombay High Court
The Goa Foundation, Represented By Its ... vs State Of Goa & Others on 3 July, 2000
Equivalent citations: 2000(4)BOMCR646
Author: F.I. Rebello
Bench: F.I. Rebello, V.C. Daga
ORDER F.I. Rebello, J.
1. The petitioner No. 1 is a society registered under the Societies Registration Act with the objects amongst others to take appropriate action to halt the ecological degradation of the environment and to formulate and implement programmes for the rehabilitation and development of the Goan environment and to restore ecological balance. All its members are nationals and citizens of India. It is also contended that as citizens of India they have fundamental duty as enshrined under Article 51(g) to protect and improve the natural environment including forests, lakes, river and wild life and to have compassion for living creatures.
2. By the present petition, the petitioners have challenged an order of respondent No. 1 approving demarcation of High Tide Line that is not in cossonance with the CRZ Notification dated 19-2-1991 as amended on 16-8-94 issued under the Environment Protection Act, 1986. The said order is dated 26-7-94. By the said order, a copy of which is placed on file, the Chief Town Planner was informed by the Under Secretary (Revenue) by letter dated 26th July, 1994, that the Government had accepted the High Tide Line as demarcated by the Surveyor General of India. The petitioners contend that for several years the respondents have been following the HTL demarcation which is the same as that under the Coastal Regulation Zone notification issued in February, 1991 as amended on August 16, 1994. Certain resort developers who have raised constructions within the 200 metres zone had sought to raise a dispute about the demarcation of the HTL in an attempt to regularize their illegal constructions. The respondent No. 1 without consulting the respondent No. 4, attempted to fix the HTL for the State of Goa through agency of the Surveyor General of India. The Surveyor General of India has attempted to demarcate an HTL for approximately 27 kms of Goa State, from Velsao to Cavelossim beach stretch in South Goa. The Government of Goa has thereafter dispensed with the services of the Surveyor General of India on the ground of cost. The stretch from Velsao to Cavelossim is the stretch in which the largest number of violations of 200 metres zone has taken place at the hands of the developers. Petitions are pending in this Court. The HTL drawn for the aforesaid stretch is at variance with the HTL demarcation required under the CRZ Notification. The notification as amended in 1994 defines the HTL as "the line on the land upto which the highest water line reaches during the spring tide and has to be demarcated uniformly in all parts of the country". The Surveyor General, it is contended, has demarcated an average between high and low tides. The result in that there are now two HTL lines for different areas of Goa, only one of which meets the provisions of the CRZ notification. The anomaly has become apparent to the respondent No. 1 and 2. Inspite of that the respondent No. 1, by an order dated 26-7-94 has accepted the HTL as drawn by the Surveyor General for 27 kms stretch from Velsao to Calvelossim. At its 5th meeting held on 1-9-94 the respondent No. 2 has decided to follow the HTL as required by the notification in the rest of Goa (excluding Velsao-Cavelossim). From Velsao-Cavelossim the decision is to follow the demarcation done by the Surveyor General. The HTL drawn by the Surveyor General is on average 40-60 metres closer to the sea. Developers have the advantage of constructing resorts closer to the sea and the sand dunes in the 27 kms stretch on account of this. In other areas of the State and in the rest of the country the HTL notified in the CRZ notification is being followed as the basis for sanctioning projects.
3. It is contended by the petitioners that respondents No. 1 to 3 have no authority under the Environment Protection Act, 1986 or the Rules issued thereunder, to permit them to approve projects on the basis of two HTLs in the same State. The State Government has no authority either to approve or to demarcate the HTL. The power under the CRZ notification is available only to the demarcating authority to be appointed by the Central Government and it is not the Surveyor General of India. The respondent has only the power to prepare the CRZMP, but this must be in terms of the requirements of the statute itself. It is contended that the 30 kms stretch from Velsao to Cavelossim is one of nature's wonders in terms of its priceless ecological assets. The entire stretch is covered with trees and natural dune vegetation and dominated by a large number of sand dunes which are also protected under the notification. The movement of development and constructions with 40-60 metres closer to the sea would have serious and adverse ecological impacts on the costal ecology.
In September, 1994, an Expert Committee was formed by the respondent No. 4 to investigate violations of CRZ notification in Goa State. The report was filed before the Apex Court. A part of the reports reads as under :-
"The committee also noticed that the HTL demarcated by the Survey of India was in variance with the High Water Mark (HWM) demarcated on the printed Survey of India maps. The committee observed that the new HTL demarcated by the Survey of India was about 40 to 60 metres towards the sea side of the HWM line of the Survey of India toposheets."
4. An additional report was filed by two environmentalists on the said Experts Committee. The relevant portion reads as under :---
"DEMARCATION OF HTL BY SURVEYOR GENERAL OF INDIA We wish to place on record that the demarcation of the HTL by the Surveyor General of India has not been carried out as per the definition of the HTL in the CRZ notification. If the definition adopted by the Surveyor General is accepted, it would defeat the entire purpose of the notification.
Secondly, an inspection of the printed Survey of India maps of the Goa coast with the recent demarcation of the HTL carried out by the Surveyor General of India revealed that there was a marked variation between the "High Water Line" marked on the printed maps and the "High Tide Line" demarcated in the recent survey.
We also wish to add that the words "High Water Mark" do not appear in the printed Survey of India Maps that were available with the CTF of Goa. The terminology used is "High Water Line"."
5. At the meeting held on 28-12-95 at New Delhi chaired by Shri K.K. Bakshi, Additional Secretary, Ministry of Environment & Forests, New Delhi, the marking of the HTL by the Surveyor General came up for discussion and present amongst others was the Deputy Surveyor General of India. The Minutes therein recorded indicate that the Deputy Surveyor General informed that the Survey of India has demarcated the HTL based on the Geodetic definition i.e. the HTL was first taken in the sea and then it was levelled and a line was drawn to the corresponding point on the land. He also clarified that the HTL drawn on the land in this manner did not take care of the normal tidal surges. Inter alia he also explained that boundary pillars had been erected in the case of Marmagoa at 200 metres from the HTL (demarcated by the Survey of India), but these had been washed away due to surge action of the tides since at some time the water goes beyond 200 metres from the HTL. On the other hand, Commodore K.R. Srinivasan representing the Chief Hydrographer to Government of India, Naval Hydrographic Office, informed that they were demarcating the HTL based on the actual physical surveys of the points on the land where the sea water reaches upto a maximum level on land due to high tides during springs. Their definition of the HTL also takes into account the normal tidal surges. He also mentioned that the Zero line indicated on their charts represent the Low Tide Line (LTL). After extensive discussion, it was agreed that for the purpose of the CRZ notification the definition of HTL as adopted by the Naval Hydrographic Office would have to be adopted as the same is in consonance with the definition of HTL given in the CRZ notification. Rule was granted on 25th September, 1996 and by way of interim relief the order dated 26th July, 1994 was stayed. The respondents No. 1 to 3 were directed to avail of the charts available with the Naval Hydrographic Office.
6. Reply has been filed on behalf of respondents No. 1, 2 and 3. It is set out therein that the C.R.Z. notification dated 16th August, 1994 with the amendment to the C.R.Z. notification came into force from 16th August, 1994. The impugned Government order dated 26th July, 1994 was before the amendment to the C.R.Z. Notification. It is contended that there is no merit in the petitioner's contention that the C.R.Z. Notification dated 19th February, 1991 is also the same as the amended Notification of 16th August, 1994. It is further pointed out that in the amendment Notification of 16th August, 1994, the expertise of the Surveyor General of India in the matter of demarcation of High Tide Line has been expressly and rightly acknowledge. The services of the Surveyor General were engaged as in Writ Petition No. 349/88 this Hon'ble Court desired demarcation of High Tide Line in view of some complaints made by the petitioners in that petition. The Government decided that in view of the controversy that the Surveyor General of India should be requested to demarcate the High Tide Line along the entire South Goa Coast from Velsao to Cavelossim. Reliance is placed on exchange of correspondence by the respondents on one hand and the Director of Southern Circle, Survey of India as also on letter dated 24th March, 1992 addressed to Advisor, Government of India, Ministry of Environment & Forest. Pursuant to the directions of this Court, an additional affidavit has been filed by Dr. N.P.S. Varde who is Ex-officio Joint Secretary in the Department of Science, Technology & Environment, Government of Goa. It is stated that the Central Government had not specifically delegated to the State Government the power to demarcate the H.T.L. However, by order dated 13-6-1990 the Under Secretary, Department of Tourism, Government of India had passed an order, infer alia, directing the State Government to enforce the norms laid down by the Ministry of Environment & Forests in consultation with the Ministry of Tourism. Along with the said order a letter dated 19-6-1990 issued by the Ministry of Environment & Forests together with the said guidelines to be followed by the State Government were also despatched.
The first letter is dated June 13, 1990. By that letter it is set out that each beach resort/hotel will follow the guidelines on construction. It is for the State Government to enforce these norms rigidly in future. In other words, the State Government was called upon to enforce the norms laid down by the Central Government. The second letter is dated June 19, 1990. There is nothing in that letter except to state that the State Government was permitted to examine the projects bearing in mind the norms laid down. The norms for beach resorts in coastal stretch was enclosed with the letter. One of the guidelines in the notification issued by the Ministry of Environment & Forests enclosed in the letter of June 19, 1990 reads as under :---
"The project proponents will not undertake any construction (including temporary constructions and fencing or such other barriers) within 200 metres (in the landward side) from the High Tide Line and within the area between the low tide and High Tide Line."
How if and at all there was a confusion after this letter of measuring the distance of 200 metres from H.T.L. at least we cannot understand. We have been unable to fathom the thought process of those in charge and representing the affairs of respondents 1 to 3. This document was available with respondents 2 and 3 after June 19, 1990.
7. The letter of 28-6-2000 is from the Chief Town Planner to the Jt. Secretary, S.T.E. Department. This was in response to the enquiry regarding demarcation of High Tide Line prior to demarcation by the Survey of India. The norms are set out as under :---
"A status report of the entire coastal area of Goa upto 500 mts. from H.T.L. was prepared as per a cabinet decision in 1982. At that time the norms followed by the Town & Country Planning Department is to measure the H.T.L. from the pioneer or permanent vegetation line which is existing on the landward side of the shore line. In case of absence of vegetation line on the shore, the boundary of the property abutting the shore was taken as a High Tide Line. The above procedure has been consistently followed for approving projects by the Government, prior to the demarcation of the H.T.L. by the Survey of India in 1991."
8. With that, we now propose to dispose of the issues.
The first contention that will have to be examined is whether the respondents No. 1 and 2 could have, on their own, fixed the High Tide Line without the permission of the Government of India or the concerned Department namely Ministry of Environment and Forests. The affidavit of Dr. N.P.S. Varde is clear that no such delegation has been specifically given by the State Government to demarcate the High Tide Line. The Environment Act is a central legislation. The C.R.Z. notification of 19th February, 1991 was issued by the Ministry of Environment & Forests. The relevant extract of the notification of 19th February, 1991 may now be reproduced :---
"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.
Before this notification as now set out in the affidavit of Dr. N.P.S. Varde, the Government of India along with their letter of June 19, 1990 had forwarded the guidelines for beach resorts/hotels/lodging houses in the coastal stretches. We have already extracted Clause (1) of the said guidelines. That guideline was clear insofar as what the respondent No. 1 was bound to follow. The H.T.L. was to be measured in the landward side. The Central Government therefore was clear insofar as the decision before the notification was concerned, that the line which had to be considered was on the landward side. Therefore, even if the respondent No. 1 was called upon to enforce the norms laid down by the Ministry of Environment & Forests, the norms were clear and those were the norms that had to be followed. Under the C.R.Z. notification of 19th February, 1991, no power was conferred on the respondent No. 1 to demarcate the H.T.L. Even if bonafide the respondent No. 1 has done that exercise through the Survey General of India, that was an exercise without jurisdiction. The survey therefore done by the Survey General of India at the request of respondent No. 1 was without the authority of law. Even if the respondents 1 to 3 had any doubts, they could have referred the matter to respondent No. 4. Till the C.R.Z. notification of 1991, they were following a policy based on what they were recommending from 1986, projects to the Inter Ministerial Committee. Guideline intimated with the letter of June 19, 1990 was clear. It spoke of no constructions within 200 metres (in the landward side). The exercise was unnecessary at least after June 19, 1990. We do not wish to go into the reasons for the exercise undergone in appointing the Surveyor General of India and then defending the action in this Court. We therefore hold that respondent No. 1 or its agencies or Departments had no authority to demarcate the H.T.L.
9. We now come to the second question as to whether there was any dispute or difference insofar as the H.T.L. is concerned before the notification of 19th February, 1991 and/or subsequent to the notification of 16th August, 1994. For the purpose of answering that contention, it may be necessary to reproduce the relevant portion insofar as the Notification of 16th August, 1994 is concerned. It reads as under :--
"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."
The relevant portion of CRZ Notification dated 19th February, 1991 has been reproduced in paragraph 8 of this judgment.
In the affidavit of Dr. N.P.S. Varde, he has set out as to what was the practice before the HTL was marked for a stretch of the land through the Surveyor General by the Government of Goa. What has been followed was the pioneer/permanent vegetation line which exists on the landward side of the shore line was taken as the HTL. Wherever the said pioneer vegetation line was not existent along the shore, the boundary of the property abutting the shore was taken as the HTL. Therefore before the CRZ notification of 1991 this is what was followed. Apart from that the Government of India's Guidelines enclosed by letter of June, 1990 were clear that the 200 metres from the HTL was from the landward side. The CRZ Notification as pointed out earlier is the first notification which came into force in 1991. The second notification came into force on 16-8-1994. The purported decision of the Government of Goa is dated 26-7-94. Therefore the only period if at all involved is the period 26-7-94 and 16-8-94.
We have had access to the file of the Government of Goa on that score. The question of taking Government decision regarding adoption of HTL as demarcated by the Surveyor General of India in Salcete coast was discussed with the Chief Minister. The Chief Minister directed that the matter be put up for discussion in the 68th meeting of the Town and Country Planning Board held on 6th May, 1994. It seems that after that the Town and Country Planning Board recommended that it may be accepted by the Government. On 14-7-94 there is a notice that the HTL as prepared by the Surveyor of India had been accepted by the Government earlier. The matter was referred to the Town Planning Board and as indicated the Town Planning Board had also accepted the H.T.L. as prepared by the Survey of India. The then Chief Minister of Goa has agreed to the recommendation on 16-7-94. At the meeting of the State Committee on Coastal Environment held at the Conference Hall, Secretariat, Goa on 1-9-94 after lengthy discussion the following decision was taken :---
"After lengthy discussion, it was decided to follow the H.T.L as demarcated by the Survey of India from Velsao to Cavelossim. In the remaining coastal stretches the H.T.L. should be demarcated on the land upto which the highest water line reaches as per the provisions of C.R.Z. Regulations as amended vide Notification dated 16th August, 1994".
It is thus clear that as upto 26-7-94 when the Under Secretary (Revenue) wrote to the Chief Town Planner, Govt. of Goa, the State Committee of Coastal Environment and its predecessor Committees was following the High Tide Line being the pioneer/permanent vegetation line which exists on the landward side of the shore line. Where the pioneer/vegetation line was not existing on the shore, the boundary of the property abutting the shore was taken as the HTL. The decision of the Government on 26-7-94 was accepted by the State Committee on Coastal Environment only on 1-9-94. It was the State Committee alone which was empowered to clear the projects. Therefore, we find that even after the second notification of 16th August, 1994 the State Committee on Coastal Environment chose to adopt the H.T.L. as prepared by the Survey General of India for part of the coastal area. It came to be adopted for the first time on 1-9-94. Merely because the Government of Goa had taken a decision, that decision had to be accepted by the State Committee on Coastal Environment which was the Committee empowered to clear the projects based on the Guidelines issued by the Government of India. That Committee accepted it only on 1-9-94. In the meantime, the C.R.Z. Notification of 16th August, 1994 came into force. The Committee could not have accepted the H.T.L. as approved by the Government as it was clearly contrary to the C.R.Z. Notification.
Even otherwise, we are unable to understand as to how on 1-9-94 the State Committee on Coastal Environment could adopt two H.T.L.s in the State of Goa. On their own reading, as per C.R.Z. Notification of 16th August, 1994, the H.T.L. was to be demarcated on the land upto which the highest water line reaches. The H.T.L. demarcated by the Survey of India was something different as noted in the earlier part of this judgment. Therefore the mere acceptance by the Committee on 1-9-94 in the teeth of the C.R.Z. Notification would be arbitrary. Was there any ambiguity so far as C.R.Z. 1991 is concerned? It is true that in that notification the expression "land" was not used which has been used in the notification of 1994, but as can be seen from the Annexure to the affidavit of Shri Varde, the Government of India all throughout was clear that 200 metres had to be from the landward side as set out in Notification F. No. Z-12011/56/90-18-3 even if there be an omission, if it can be spelt out to be an omission, the Government of India's policy had been clear. The respondents No. 1 to 3 themselves were following the same H.T.L. Therefore there could be no ambiguity insofar as H.T.L. so far as Goa is concerned.
10. Once we accept that, the various contentions raised on behalf of respondents No. 1, 2 and 3 must be rejected.
11. Shri I. Chagla, learned Senior Counsel on behalf of Intervenor No. 2 sought to address us in the matter. As the decision did not involve the right of any specific Hotel, it was pointed out that what is being decided is a general issue and not the right of any particular Hotel. In the light of that, he has chosen not to address the Court on that matter.
12. Whilst parting, we may note the defences raised on behalf of respondents No. 1 to 3. Bona fide or not they were undefenceable. May we only remind them of what the Apex Court said in A.P. Pollution Control Board v. Prof. M.V. Nayudu (Redt.) and others, :---
"Good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability in public affairs, respect for human rights and the meaningful participation of citizens (including scientists) in the political processes of their countries and in decisions affecting their lives. (Report of the Secretary General on the work of the Organization, official records of the UN General Assembly, 52nd Session, Suppl. I (A/ 52/1) (para 22.) It includes the need for the State to take the necessary "legislative, administrative and other actions" to implement the duty of prevention of environmental harm, as noted in Article 7 of the draft approved by the Working Group of the International Law Commission in 1996, (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur of the International Law Commission dated 3-4-1998 on "Prevention of Transboundary Damage from Hazardous Activities") (paras 103, 104). Of paramount importance in the establishment of environmental courts, authorities and Tribunals is the need for providing adequate judicial and scientific inputs rather than leave complicated disputes regarding environmental pollution to officers drawn only from the executive."
13. In view of our findings, the order dated 26-7-94 will have to be held without jurisdiction and consequently the petition will have to be made absolute in terms of prayer Clause (ii) of para 24 of the petition.
In the circumstances of the present case, there shall be no order as to costs.
14. Petition made absolute.