National Green Tribunal
Chandan S. Khorjuvekar vs Goa Coastal Zone Management Authority on 26 July, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 70/2022 (WZ)
I.A. No. 104/2023(WZ) & I.A. No. 115/2023(WZ)
IN THE MATTER OF :
Chandan Suryakant Khorjuvekar
R/o H. No. 98/9, Bandirwaddo,
Anjuna, Bardez, Goa - 403517
Phone : 07038781742
.....Applicant
Versus
1. Goa Coastal Zone Management Authority
Through its Member Secretary,
Ist Floor, Pandit Deendayal Upadhyay Bhavan,
Near Pundalik Devasthan,
Punalik Nagar, Porvorim,
Goa- 403521
2. Goa Forest Department,
Office of the Deputy Conservator of Forests,
Wildlife & Ecotourism (North) Division,
IV Floor, I lift, Junta House
Panaji- 403001 (GOA)
3. Department of Environment & Climate Change,
Through its Director,
Government of Goa,
IVth Floor, DEMPO Towers,
Patto- Panaji, Goa- 403001.
4. M/s Lucky Realtech Pvt. Ltd.,
Through its Managing Director,
Reg. Office : H. No. 145, Ground Floor,
Pocket-22, Sector-24, Rohini,
New Delhi - 110085
5. Pankaj Chopra,
SY. No. 211/2-A, Village Mandrem,
Pernem Taluka, North Goa District,
Goa- 403718
6. MRS. Goldy Chopra,
SY. No. 211/2-A, Village Mandrem,
Pernem Taluka, North Goa District,
Goa- 403718
7. Mr. Satyam Thakral,
Survey No. 211/2-A, Village Mandrem,
Page 1 of 37
Pernem Taluka, North Goa District,
Goa- 403718
8. Mr. Rajendra Kumar Kamra,
S/O Mr. Leela Krishna Kamra
Survey No. 211/2-A, Village Mandrem,
North Goa District, Goa- 403718.
Also at : H. No. 76, III Floor,
Pocket 27, Sector 24, Rohini,
Delhi- 110085.
....Respondents
Counsel for Applicants :
Mr. Aagney Sail, Advocate
Counsel for Respondent(s):
Mr. Abhay Anturkar, Advocate for R-1/GCZMA & R-2/ Goa Forest Department
Mr. G.A. S. Nadkarni, Advocate for R-4/PP
Mr. Aprameya Shivade, Advocate along with Mr. Nalin Mulegaokar,
Advocate for R-5 & 6
Mr. Pankaj Pai Vernekar, Advocate for R- 8
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 13.07.2023
Pronounced on : 26.07.2023
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JUDGMENT
1. This Original Application has been filed with the following prayers:
The Respondent No.1/GCZMA be directed to conduct site inspection into the illegal ongoing construction in Survey No. 211/2-A of Village Mandrem on Mandrem Beach, Pernem Taluk, North Goa District, Goa and issue stop- work order, if found to have been done in violation; Respondent No.2/Goa Forest Department be directed to submit a report demarcating the „No-Take Zone‟ of Mandrem Beach and show location of all the Survey Nos.(in particular Survey No.211/2-A) of Village Mandrem, Pernem Taluk, North Goa District, Goa in „No Take Zone‟ as recommended by the draft "Sea Turtle Nesting and Habitat Management Plan"(2020); the Respondent No.1/GCZMA be directed to submit a report on the availability of the text of the consents/ approvals granted by it for shacks/Huts/Tents/ Cottages and events in Private Lands in the entire State of Goa, on their official Page 2 of 37 website; an order be passed regarding illegality of the construction being made/already made on Survey No. 211/2-A of Village Mandrem; a direction be issued that no developmental activity be carried out in „No Take Zone‟, till the time the Coastal Zone Management Plan as per CRZ Notification, 2011, is finalized and approved.
2. The brief facts of this case as submitted by the Applicant are that a construction activity is ongoing of about 74 cottages using heavy steel materials and concrete cement plinth on Mandrem Beach in Survey No. 211/2-A of Village Ashwem, Mandrem, Pernem Taluka, North Goa District, Goa, which is illegal and in violation of the Coastal Regulation Zone Notification, 2011 (CRZ, 2011). The said beach is a turtle nesting site which is classified as CRZ-I category area, wherein no developmental activity is permissible. The said ongoing construction activity is in violation of the guidelines issued with respect to construction of Shacks/ Huts/Tents/Cottages of temporary nature, in the report titled "Carrying Capacity of Beaches of Goa for providing Shacks & other Temporary Seasonal Structures in Private Areas"(Beach Carrying Capacity Report for Short), prepared by NCSCM and accepted by the Government of Goa. Copies of the pictures taken in July, 2022 relating to ongoing construction have been annexed to the application, as Annexure- A1 (colly)
3. The Respondent No.1/GCZMA in its meeting held on 22.12.2020 noted that earlier permission was granted to Respondent No.7/Satyam Thukral on 03.11.2020, hence it issued revised approval in the name of Respondent No.4/M/s Lucky Realtech Pvt. Ltd. for construction of 50 Cottages, 1 Wellness Centre and 1 Reception in an area of 1,944 sq. m.in the survey number in question. On similar considerations, GCZMA noted the earlier permission of Respondent No.7/Satyam Thukral and issued revised approval in the names of Respondent No.5/Mr. Pankaj Chopra and Respondent No.6/ Mrs. Goldy Chopra for construction of 24 Cottages, 1 Reception and 1 Spa in an area of 1,000 Sq. M.in the survey number in question. A copy of the minutes of the meeting of GCZMA dated Page 3 of 37 22.12.2020 is annexed as Annexure - A2, but one page of it is there, not full resolution.
4. The Applicant came to know of this construction activity in the beginning of July, 2022 and after obtaining information, made a complaint to the Respondent No.1/GCZMA on 14.07.2022 requesting to stop the said activity. The Applicant also sent through email dated 15.07.2022, the pictures of the ongoing construction activity and also requested the Respondent No.1/GCZMA to supply a copy of the permission / approval granted for said activity, as the same was not available on the website of Respondent No.1/GCZMA. To the best of knowledge of the Applicant, Respondent No.1/GCZMA has not displayed the permission/approvals in public domain on its website. The copy of the complaint dated 14.07.2022 and copy of email dated 15.07.2022 both submitted to the Respondent No.1/GCZMA are annexed as Annexure A3(colly).
5. It is further alleged that till date, no action has been taken by the Respondent No.1/GCZMA against the respondents for carrying out illegal construction activity on the said survey number.
6. The present Application is moved on the basis of provisions under Regulation 8 (V)(3)(vii) & 8(V)(3)(vii) of the CRZ Notification, 2011 which provides as under:
"8. Norms for regulation of activities permissible under this Notification,- ....(V) Areas requiring special consideration,-
...2. 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:
(vii) the beaches such as Mandrem, Morjirn, Galgiba and Agonda have been designated as turtle nesting sites and protected under the Wildlife Protection Act, 1972 and these areas shall be surveyed and management plan prepared for protection of these turtle nesting sites;
(viii) no developmental activities shall be permitted in the turtle breeding areas referred to in sub- paragraph(vii)"
7. In view of the above, approximately 2.6 Kms stretch on Mandrem Beach is a designated turtle nesting site as per above cited provision, where no developmental activity is permitted in the turtle breeding areas. In addition Page 4 of 37 to that, as per the Regulation 8 (i)(I)(i) of the CRZ Notification, 2011, no new construction is permitted in CRZ- I area and as per Regulation 7 (i)(A)(g), turtle nesting grounds are classified as a CRZ-I area.
8. Since no permanent structure is permitted within 200m of CRZ area in private plots as per the report titled „Carrying Capacity of Beaches of Goa for Providing Shacks & other Temporary Seasonal Structures in Private Areas‟ („Beach Carrying Capacity Report‟ for short), prepared by NCSCM and accepted by the Government of Goa, this report recommends for Mandrem Beach that, "No additional shacks, huts/ Tents/ Cottages should be considered as this is a designated turtle nesting site"
9. As per the Beach Carrying Capacity Report the following important factors about Mandrem Beach are to be noted:
Name of Total Turtle Net ESA No Go Beach Area Beach Beach Nesting Area Length (m) Available (South to Area Area (sq.m.) for North) (Sq.M.) (sq.m.) tourisum (sq.m.) Mandrem 2,47,751.2 1,33,169.7 1,74,308.3 1,99,237.56 3801 HL to Arambol HL The copy of the said Beach Carrying Capacity Report is annexed as Annexure - A4.
10. The Survey Number in question is located in the „ No Take Zone‟ of the Mandrem Beach as recommended by the draft "Sea Turtle Nesting and Habitat Management Plan" (2020) prepared in compliance of CRZ Notification, 2011 as follows:
"No Take Zone:
2. This zone must be maintained as sacrosanct space.
While tourist will be permitted to enter this space, no extractive activities will be permitted space, no extractive activities will be permitted over-here. No shacks will be permitted, riding of bikes, parties, bright lighting etc will be prohibited. The beach ecology including sand dunes will be Page 5 of 37 maintained and enriched by the plantations of native beach vegetation species."
Copies of the relevant extracts of the draft "Sea Turtle Nesting and Habitat management Plan" (2020) are annexed as Annexure- A5 (colly).
11. The above ongoing construction activity is in violation of the guiding principles, in the light of the guidelines provided in Chapter 5 which is as follows:
"5. Guiding Principles for Shacks/ Huts/ Tents/Cottages and events in the private Lands. 5.1 Guidelines for Shacks/Huts/Tents/ Cottage:
.......
Type of material to be used Shacks,huts, tents, cottages and huts/ tents/ cottages in private areas shall be erected using eco-friendly materials such as bamboos/ wooden poles with thatched palm leaves/ thatched bamboo mat roofing as far as possible and for structural support wherever required GI- pipies/ Mild steel framed structures could be permitted. However, in case of paucity of wood the same may be erected out of the other modern materials such as synthetic, steel, nylon fabric etc. for the purpose of frame work due to unpredictable weather conditions. However the same shall not exceed 30% of the total material required. Use of concrete is banned. Grouting, plastering, laying of PCC/ RCC on the floor/ structure/ digging of soak pits/ digging and laying of pipes/ metal staircases grouted in cement etc. shall not be permitted as per the guidelines issued by the GCZMA"
12. The reliance is also placed on the order dated 19.10.2020 passed by this Tribunal in Appeal No. 25/2020 (WZ) in Victor Fernandes Vs. GCZMA & Ors. the relevant paragraph which is quoted hereinbelow:
"...8. Goa is fortunate to have some of the beaches which are preferred by the sea turtles particularly olive Ridley turtles for laying their eggs, therefore, every effort is required to be made by the concerned authorities to keep such beaches undisturbed and in pristine condition. There should not be any structures, whether temporary or permanent, to be erected in such beaches and no artificial lighting or the food articles or litters to be allowed to be thrown in these beaches. Artificial lights disturb turtles since they are extremely sensitive as they are guided by natural light and moon lights. And there should not be any litter on the beaches which would attract unwanted predators. Page 6 of 37 There should not be any interference during hatching process and a distance should be maintained, and if disturbed the turtles withdraw from nesting. We, therefore, direct that the sheds, sunbeds etc.., which are there in these beaches are removed before the turtle nesting season begins. The authorities may also keep these areas fenced to keep the beaches pristine and undisturbed during turtle nesting season which starts in November- December and continuous upto March- April."
13. The matter was first heard by us on 04.08.2022 and this application was admitted and notice was directed to be issued to Respondent No.1/GCZMA. In pursuance of said order, Respondent No.1/GCZMA was issued notice with direction to bring before us, the position of the spot and vide order dated 28.09.2022, we directed the Registry to issue notices to the remaining Respondents.
14. The Respondent No.1/GCZMA submitted site inspection Report dated 30.08.2022, where-in it is recorded that the Respondent No.1/GCZMA is in receipt of complaint dated 14.07.2022 of the Applicant and that in view of the present Original Application having been filed by the complainant/Applicant, site inspection of the property under Survey No. 211/2A (Part) of Village Calangute Taluka Bardez was carried out on 27.08.2022 by the Expert Member of the GCZMA assisted by Engineer of GCZMA and Field Surveyor of GCZMA. The relevant portion of the said Site Inspection Report is quoted in hereinbelow:
"5. The site is near Ajoba Temple in Ashwem locality in Mandrem Village. The original property under Survey No. 211/2-A is known as "Sakhn Bharde" and admeasures about 27600 m2 . Overall, the property has a sloppy profile, its western edge being about 4 meteres higher than the adjoining ashwem beach and about 11 metres higher on the eastern side along the public road. The attached Goole Earth elevation profile will enable to visualized the site position.
6. The complaint letter dated 14.07.2022, the complaint about "gross violation" of CRZ area in Survey No. 211/2A of Ahwem Mandrem Village by Pankaj Chopra, Lucky Realtech Pvt. Ltd. and Satyam Thakral C/o Maargit Beach Resort inter alia, he alleges that about 60 permanent structures are under construction with heavy steel materials, cement concrete plinth and Page 7 of 37 swimming pools that is in violation of Beach Carrying Capacity Report. He is aware that the development has been granted approval by the Authority in its 241st and 250th meetings.
7. The complaint is primarily against three projects within the original property under Survey No. 211/2- A namely, Lucky Realtech Pvt. Ltd, Mmaargit Beach Resort and Satyam Thakral. They cover an aggregate area of about 16000m2. All three projects were identified by the complainant and are located on the western side of the Ashwem- Mandrem road. All are within the NDZ i.e. within 0-200 metres of HTL. One project "Maargit Beach Resort" is completed and operational, while other two i.e. Lukcy Realtech Pvt. Ltd and Satyam Thakral are under construction. The attached Google Earth picture with my annotations will enable to visualise the site position.
III. OBSERVATION
8. We commenced inspection with the project of "Lucky Reatech Pvt. Lt." Represented by Mr. Lalit Arora. The site is located on the southern side and admeasures about 6574 m2 as per approved plan. Construction of the project is in progress. The respondent stated that he was granted permission by the Authority and produced approved plan under no. GCZMA/Shack- Hut-Cott-Tent/20-21/13/311 dated 09.06.2021, the same taken on record.
9. The site position was compared with the approved plan. My findings are tabulated belpw:
Serial Structures under Structures
No. Construction at time of approved by
inspection. Authority
01 Cottage blocks:18 Cottage
blocks:20
02 Restaurant: 01 Restaurant: 01
03 Reception block :01 Reception block:
01
10. The maximum height of the cottage blocks is 6 metres, which is within permissible limits. The structures consist of light steel tube frames with cement particle board partitions. The plinths are of laterite masonry with thin layer (about 7 cm) PCC (at plinth level). It may be noted that Authority had decided to permit use of steel etc. up to 30% of total material required in lieu of wood; in my assessment the use of such material is within permissible limit.
11. Findings: The project has approval of the Authority. It appears that the respondent has not exceeded the approvals granted to him. No deviations from Page 8 of 37 approved plan and permissible specifications were noted.
12. Next, we inspected the site " Maargit Beach Resort"
represented by Mr. Pankaj Chopra. It is on the north of M/s Lucky Realtech Pvt. Ltd. and admeasures about 3592 m2 . The project is completed and is operating under the name of „Maargit Beach Resort‟. The respondent stated that he was granted permission by the Authority and produced approved plan under No. GCZMA/N/Shack-Hut-Cottage-
Tent/20-21/14/313 dated 09.06.2021 for our perusal. However, he declined to submit a copy thereof.
13. The site position was compared with the approved plan shown by the respondent. My findings are tabulated below:
Serial Structures existing on site at time of Structures No. inspection approved by the Authority
1. Cottage blocks 24 Cottage blocks: 24
2. Restaurant: 01 Restaurant: 01
3. Reception block : 02 Reception block 02 4 Wooden platform on western side of No approval.
the property over the rocky edge (Dimensions : 29 m x 4m) 5 Concrete stormwater drain in north- No approval south direction. Length 24.50 m, width 80 cm depth 70 cm.
6 Swimming Pool on western side. 12.80 No approval.
m x 5.60 m. Depth could not be ascertained as pool was covered with tarpaulin sheel.
07 Laterite masonry compound wall No approval constructed on concrete base along the eastern boundary (alongside the public road). Height 1.40 m. No setback maintained from the public road.
08 Structure on north-eastern side(next to No approval.
receiption) having two molded polyethylene water tanks on upper part. Covered with cement particle board on lower part. Dimensions 5 m x 2.50 m.
14. Each cottage block is supported on 20 nos. RCC columns 40 x 40 cm size. The foundation details could not be ascertained as it involved excavation. Likewise, the material used in superstructure could not be ascertained as the structures are completed and in occupation.
15. The project has approval of the Authority. However, several unauthorized developments are noted, the same are listed at serial Nos. 4 to 8 in the table Page 9 of 37 above. With respect to the wooden platform at serial Nors, the same has been erected over the rocky edge of the beach which is eco-sensitive and habitat for various marine ecosystems. The extent of damage caused to the rocks below could not be ascertained as the area is totally covered by the platform. Further, it appears that part of the platform may also be projecting beyond the western boundary of the property, over the rocky edge and onto the public beach area. A detailed survey will be required to confirm the same.
16. The structures/ development listed at serial Nos. 4 to 8 in the table above constitute violations of CRZ Notification and are recommended for demolition.
17. Finally, we inspected the site "Satyam Thakral"
represented by Mr. Arun Bhalla who claimed to have purchased the property. Construction work on the project is in progress. The respondent‟s representative stated that he had permissions from the Authority but did not have the file with him as he was unaware of the inspection. However, I subsequently obtained the relevant records from the office (GCZMA/N/Shack-Hut-Cott-Tent/20- 21/07/305 dated 09.06.2021). The site is located on the northern-most side and admeasures about 5995 m2 as per approved plan.
18. The site position was compared within the approved plan. My findings are tabulated below:
Serial Structures under construction at time of Structures approved No. inspection by the Authority
1. Cottage blocks. Cottage blocks: 15( 6 nos. ( 7.30m x 9.90m H= 5.50m) 30 rooms) 9 nos. (6.10m x 10.50, H= 3m)
02. Restaurant on south-western side 01 Restaurant/ Shack: 02
03 Swimming Pool on western side. 16m x No approval 5.80m depth 1.40m.
04 Sloping RCC platform on eastern No approval.
boundary alongside public road.
Dimensions: 11.10 x 3m. Height 1.50 m.
No setback maintained from the road.
05 Structure on eastern side Dimensions 9.30 No approval.
x 4.60 m Height approx. 6m.
06. RCC underground water tank on south- No approval.
eastern side within setback from public road dimensions could be ascertained.
19. The cottage and restaurant structures consist of light steel tube frames with wooden partitions. The plinths are of laterite masonry and RCC.
20. Findings: The project has approval of the Authority. However, several unauthorized developments are Page 10 of 37 noted, the same are listed at serial Nos 3 to 6 in the table above. These structures/ developments/ constitute violations of CRZ Notification and are recommended for demolition."
15. The stand of Respondent No.1/GCZMA is as follow:
From the side of Respondent No.1/GCZMA reply affidavit dated 18.10.2022 has been filed where-in the same structures have been shown which are contained in the above cited Site Inspection Report dated 30.08.2022. Besides that, it is also recorded that the Respondent No.1/GCZMA is in seisin of the issues raised in the present application and is yet to arrive at a final conclusion in respect of the legality of the structures in question. The answering Respondent is taking the necessary actions available to it to prevent any violation of the statutory provisions and that the next date for hearing was fixed on 27.10.2022.
16. A Rejoinder affidavit dated 11.11.2022, by the Applicant against the reply affidavit of Respondent No.1/GCZMA dated 18.10.2022 has been filed. It is submitted that Respondent No.1/GCZMA has failed to observe that all the structures constructed / being constructed on Survey No. 211/2-A involve use of concrete(RCC/PCC) on the floor/ structure/ digging of soak pits/ digging and laying of pipes/ metal staircases grouted in cement etc. which is in blatant violation of the law. The Respondent No.1/GCZMA has not brought on record the CRZ permissions/approvals along with site plan, survey plan, plan, section, elevation etc. granted for construction activity on the survey number in question. The Respondent No.1/GCZMA has not said a single word about the turtle nesting site on Mandrem Beach. No response is given regarding the recommendation made in the „Beach Carrying Capacity Report‟, no additional Cottages should be considered for Mandrem Beach which is a turtle nesting site. The said „Beach Carrying Capacity Report‟ has been accepted by the GCZMA in its meeting held on 03.01.2017. Copy of the relevant extract of the meeting of GCZMA is annexed as Annexure - R1/1. As per „Beach Carrying Capacity Report‟ (para 6.3.3 at internal Page No. 87 of Report) hotels were not to be Page 11 of 37 permitted to erect more than one cottage within their private area as shacks, cottages and tents are primarily meant for livelihood of the local inhabitants who are not in a position to construct hotels/restaurants. It shows that the Respondent No.1/GCZMA has overlooked these guidelines. All are within the No Development Zone (NDZ) i.e. within 0-200 metres of HTL as mentioned in Site Inspection Report.
17. The specification for cottage structure is given in tabular form along with its source as below:
Sr. No. Cottage Structure/Detail /Specification Source 1 "Purely Temporary and Seasonal structures Clause 8 (V) 3 (iii) customarily put up between the months of of the CRZ September to May" Notification, 2011 Such structures shall not be removed Clause 8 (V) 3 (iii) and dismantled during the month of of the CRZ June to August: Provided that the Notification 2011.
facilities available in these
structures shall remain non-
operational during the month of June
to August.
2. WOOD & other Temporary structural Para 1.3.10 of the
frameworks: Beach Carrying
Cottages are made up of wood and other Capacity Report.
temporary structural frameworks.
3. Height of structure - 9m (Including the height Chapter 5
of the boards displayed above the roof) (internal Page 74-
2nd para from top)
of the Beach
Carrying Capacity
Report.
4. Distance between Cottages -3m & 2m if fire Chapter 4 (
resistant material used. internal page No.
49- 2nd para from
top) of the Beach
Carrying Capacity
Report.
5. Type of materials to be used: Chapter 5
Cottages in private areas shall be erected (internal page No.
using eco- friendly materials such as : 74 - 1st para from
a. Bamboos/wooden poles with thatched top) of the Beach
palm leaves/ thatched bamboo mat Carrying Capacity
roofing as far as possible. Report.
b. For structural support wherever required GI- pipes / mild steel framed structures could be permitted.
c. In case of paucity of wood modern materials such as synthetic, steel, nylon fabric etc. for the purpose of frame work due to unpredictable weather conditions can be used subject to 30% of total material required.
d. Use of concrete is banned.
e. Grouting, plastering, laying of plain Cement Concrete (PCC) / Reinforced Page 12 of 37 Cement Concrete (RCC) on the floor/ Structure/ digging of soak pits/ digging and laying of pipes/ metal staircases grouted in cement etc. shall not be permitted.
18. In view of the above position of Rules regarding specification of the structure for the cottages, what violations have been committed by the Private Respondents are given as below in the Tabular Form:
Table No.2 Respondent No.4/LUCKY RELATECH PVT. LTD. SR. NO. VIOLATIONS DESCRIPTION ALLEGED VIOLATOR
1. Use of Concrete. 7cm thick PCC at Plinth Lucky Realtech Pvt. Ltd.
level (Para 10 of GCZMA inspection report)
2. Photographs dated July- August, 2022 Lucky Realtech Pvt. Ltd.
showing each structure has laterite
masonary PCC at plinth level are hereto
marked and annexed as Annexure
R1/2(colly)
SUBMISSION:
a. In light of the above the finding given in the Inspection Report that there are no violations committed by Lucky Realtech Pvt. Ltd. is vehemently contested by the Applicant. b. GCZMA be directed to bring on record all the documents mentioned in para 5.2 of the Beach Carrying Capacity Report (Internal page 76 of Report) of the Application/ inspection approval of Lucky Realtech Pvt. Ltd. like site plan, survey plan etc. Table No.3 MAARGIT BEACH RESORT (Respondent No.5/Mr. PANKAJ CHOPRA & Respondent No.6/GOLDY CHOPRA) SR. NO. VIOLATIONS DESCRIPTION ALLEGED VIOLATOR
1. Each cottage block is supported on 20 Maargit Beach Resort.
nos. RCC columns 40 x 40 cm size.
(Para 14 of GCZMA inspection Report)
2. Photographs taken from Maargit Beach Resort.
http://www.maargitbeachresortgoa.com/ showing each cottage has RCC columns and a swimming pool in the property are hereto marked and annexed as Annexure Page 13 of 37 R1/3(colly) SUBMISSION:
a. In the light of the above the finding given in the table in para 13 of the Inspection Report that 24 cottage blocks, 1 Restaurant and 2 reception blocks constructed using concrete by Maagrit Resort as being approved by the GCZMA is vehemently contested by the Applicant.
b. GCZMA be directed to bring on record all the documents mentioned in para 5.2 of the Beach Carrying Capacity Report ( internal page 76 of Report) of the application / inspection/ approval of Maargit Beach Resort ( i.e. Mr. Pankaj Chopra & Mrs. Goldy Chopra) like site plan, survey plan, etc. Table No.4 Respondent No.7/Satyam Thakral SR. NO. VIOLATIONS DESCRIPTION ALLEGED VIOLATOR
1. The plinths are of laterite masonry and Satyam Thakral PCC ( Para 19 of GCZMA inspection report)
2. Photographs dated 18.07.2022 showing Satyam Thakral plinths are of PCC (Laterite masonry) in the property are hereto marked and annexed as Annexure R1/4 (colly) SUBMISSION:
a. In the light of the above the finding given in the table in para 18 &20 of the Inspection Report that 15 cottage blocks, 1 Restaurant constructed using concrete as being approved by the GCZMA is vehemently contested by the Applicant.
b. GCZMA be directed to bring on record all the documents mentioned in para 5.2 of the Beach Carrying Capacity Report (internal page 76 of Report) of the application/ inspection/ approval of Satyam Thakral like site plan, survey plan etc.
19. The Respondent No.1/GCZMA conducted a hearing on 27.10.2022 wherein a decision was taken to drop the proceedings with respect to respondent No.4/M/s Lucky Realtech Pvt. Ltd as per the order dated 20.10.2022. It is further mentioned that the term of the GCZMA came to Page 14 of 37 an end on 31.10.2022 and till the filling of this Rejoinder affidavit, there was no Authority constituted.
20. The stand of Respondent No.4/Lucky Realtech Pvt. Ltd. is as follows:
From the side of Respondent No.4/Lucky Realtch Pvt. Ltd. reply affidavit dated 17.11.2022 has been filed. The Answering Respondent has undertaken activity only after securing all permissions from all competent authorities. The Respondent No.1/GCZMA did not find any violation in inspection report carried out 30.08.2022 where-in it is mentioned by it that the Answering Respondent has not exceeded the approvals granted to him. No deviations from approved plan and permissible specifications were noted. The Applicant has not challenged the NOC dated 09.06.2021 granted to the Respondent No.1/GCZMA. Therefore, this application is time barred by limitation. The answering Respondent has purchased only a part of the property bearing Survey No. 211/2-A of the Village of Mandrem, Goa on which the Respondent is undertaking activity without any cogent and clear evidence pleaded by the applicant that the property in question falls within the turtle nesting. Two adjoining properties i.e. Survey Nos. 211 of the Village of Mandrem, Goa and 212 of the Village of Ashvem, Goa are being used by the Government of Goa to undertake construction of infrastructure development for public convenience including toilets, urinals, shower/ changing room, 40 KLD Sewage Treatment Plant, parking lot etc, and therefore there can be no iota of doubt that the property in question is not in any turtle nesting site or turtle breeding area. The property in question is not a sandy portion but a normal piece of land having normal soil profile, while turtle nesting site of the Oliver Ridley turtles is always on the sandy portion. Turtles cannot climb the 4 meters sloppy profile. The Applicant has not challenged the provisions of the Beach Carrying Capacity Report, rather has relied upon the same. The Applicant fabricated the contents of the Beach Carrying Capacity Report while reproducing the same in the Application. The table on page 13 of the Application is in stark contradiction Page 15 of 37 to the table at Page No. 52 of the Beach Carrying Report, where-in the total beach area available for tourism has been frivolously reduced by the Applicant from 48,513.68 sq.m. to 3180 sq.m. The Applicant has very wrongfully relied upon a draft report titled as "Sea Turtle Nesting and Habitat Management Plan," 2020, which is neither final in nature nor has it been accepted by the Respondent No.1/GCZMA, as per procedure established by law. The Applicant has merely taken advantage of a glaring error in the draft report in the legend on Page No. 62 of the said draft report. As per the legend, the colour code of three colours i.e. Orange, Red and Yellow was to be followed, while on the map there are completely different colours. A turtle nesting site could not cover the whole of the CRZ area, i.e. upto 500 meters from the High Tide Line. The answering Respondent has purchased a part admeasuring 6,578 sq. m.of property bearing Survey No. 211/2-A of the Village of Mandrem, Pernem Goa vide Sale Deed dated 06.10.2020 duly registered in the office of the Sub Registrar, Pernem, Goa, while the total area of the said survey number is approximately 27,500 sq. m. which is owned by the other persons, with whom the answering Respondent has no connection or link of whatsoever nature. The Respondent No.4 decided to erect temporary structures on the said property, for which NOC was granted by the Respondent No.1/GCZMA on 09.06.2021 which is subject to the compliance of the Beach Carrying Capacity Report. The Village Panchayat of Mandrem has also issued NOC to the answering Respondent dated 30.06.2021 subject to 34 conditions which have been complied with by the answering Respondent. In fact, he actually erected lesser number of cottages than permitted under the said NOC and has maintained a height of 6 metres, while permissible height is that of 9 meters. The erection of the temporary shacks/ cottages/ huts on the said property by the answering Respondent is almost complete and only the internal work of polishing the wood etc is left. The answering Respondent has not used heavy steel or concrete cement plinth in the manner as alleged on the said property. It has merely coated the plinth with Page 16 of 37 7 cm of Plain Concrete Cement so as to ensure the stability of the wood, in order to protect and ensure the safety of the persons visiting the property.
The answering Respondent has not used any RCC on the flooring or any PCC on the soil. The wood plinth is given a coating of PCC so as to ensure that the wood does not decay on account of the fungus and moisture. The said property does not fall within the CRZ- I area. The major portion of the said property, falls in the Settlement Zone of Mandrem. As per the Coastal Zone Management Plan, 1996 it falls within the CRZ III area, which aspect seems to have been deliberately suppressed by the Applicant. The Respondent No.1/GCZMA has found certain illegalities in the remaining part of the survey number in question, not belonging to the applicant. There is enough capacity for shacks and temporary seasonal structures on the Mandrem Beach.
21. The stand of Respondent No.5/Pankaj Chopra and Respondent No.6 Mrs. Goldy Chopra is as follows:
From the side of Respondent No.5/Pankaj Chopra and Respondent No.6/ Goldy Chopra reply affidavit dated 30.12.2022 has been filed. It is submitted that all the allegations made by the applicant have been denied and that the answering Respondent is running a resort by the name of M/s Margit Beach Resort in the property bearing Survey No. 211/2-A3 of Village Mandrem, Pernem- Goa, which comprises of only 26 temporary cottages which has been authorized by the Respondent No.1/Goa Coastal Zone Management Authority (GCZMA), which has issued NOC dated 09.06.2021 and these respondents obtained approval from Respondent No.1/GCZMA. The answering respondent has taken the same ground of the application being time barred as taken by other respondents and also said that an appeal under Section 16 would lie in the present matter, which is required to be filed within 30 days from the date of order. It is denied that there is any ongoing construction activity at the behest of Answering Respondent and that setting up of cottages as per no objection certificate issued by the GCZMA has been completed about more than 6 months prior and the resort Page 17 of 37 has been in operation for the last 6 months. The answering Respondent had purchased a distinct portion of property bearing Survey No. 211,sub division 2A of Village Mandrem admeasuring 3592 sq. m., which has subsequently been partitioned in survey records and now an independent Survey No. 211/2-A-3 has been allotted to the property of Answering Respondent. No construction has been made in violation of the CRZ (Coastal Regulation Zone) Notification 2011. Temporary cottages have been put by them in accordance with the approval granted by the Goa Coastal Zone Management Authority. The property in question belonging to the Answering Respondent is located within the limits of Village Panchayat of Mandrem, which is not Mandrem Beach, which is stated to be the turtle nesting site by the petitioner, but is in fact located on the Ashvem beach which is a distinct beach located within the jurisdiction of the same Panchayat. There is no turtle nesting on Ashvem Beach. There are several other resorts/ cottages located within 100 to 200 mts. of the Answering Respondent property. But the Applicant has targeted the answering Respondent with mala fide intention. The Applicant has relied on the „Sea Turtle Nesting and Habitat Management Plan, which is a draft prepared by the Centre for Environmental Education and is not notified as a law under the Environment (Protection) Act. Only certain portions of the Mandrem Beach are designated as Turtle nesting or breeding area and the prohibition on development only pertains to the said designated area of the beach and not to the larger property which is not designated as Turtle nesting or breeding area. The property bearing Survey No. 211/2-A-3 is classified as settlement zone in terms of outline development plan for the Mandrem Village. As per the Beach Carrying Capacity Report, there is enough capacity for shacks and seasonal structures on the Mandrem Beach. The said survey number is not classified as „No take zone‟, neither has the applicant placed any material to suggest that the property is so identified. The fact that the GCZMA has granted NOC to the Answering Respondent would mean that the decision of GCZMA would prevail over the beach carrying capacity Page 18 of 37 report. Moreover, the Applicant has not challenged the permission granted by the GCZMA. 24 cottages which have been constructed by the Answering Respondent are single storey cottages using wood and G. I. pipes as permitted. No such material has been used which would be harmful to the environment. Hence, the Application deserves to be rejected.
22. The Respondent No.1/GCZMA has filed additional affidavit dated 05.01.2023 where-in it is submitted that the complaint dated 14.07.2022 filed by the Applicant against the Respondent Nos. 4 to 7 is pending consideration before the answering Respondent. Order dated 18.11.2022 passed by this Tribunal, which is quoted in Para 4 of the additional affidavit, reads as under:
"The learned counsel for Respondent No.1-GCZMA orally stated that against Satyam Thakral, stop order has been issued but its copy has not been submitted before us. Therefore, it is directed that the same shall be placed on record before this Tribunal forthwith."
With this affidavit several relevant documents have also been brought on record, details which are mentioned in clause 9 (i) to (vi).
23. Site Inspection Report in respect of inspection conducted on 03.01.2023, in pursuance of the order of this Tribunal dated 23.12.2022, has been filed by Respondent No.1/GCZMA, which is as follow:
"Observation at Loco At the time of site inspection it was observed as under:
1. The land in question is located opposite Ajoba Temple, Ashwem, Mandrem Village of Pernem Taluja surveyed property under Survey No. 211/2-A of Mandrem Village of Pernem Taluka.
2. As per present online computerized Form I & XIV records the name of Anand Giri Keni & 360 Degree media solution Private limited is recorded in the occupant‟s column admeasuring about 24,008 sq.m.
3. The Site Inspection was conducted by Shri. Rajesh harmalkar, Field Surveyor attached to the office of Directorate of Settlement and Land Records, Panaji along with Shri. Devendra Gaonkar & and undersigned.Page 19 of 37
4. The detailed mapping of structures was carried out using Electronic Total Station in Survey No. 211/2-A of Mandrem Village of Pernem Taluka Sr. Sy. Name Type of Details Size of Remarks No. No/sub.Div. of the structure. of Structur Structu structure e & res Height in metres
1. 211/2-A A Ground Metal 13.47 x Floor fabricate 5.50 cm Structure structure 2 B to E G +1 having 9.11 x Structure bitumen 9.14
3. F roofing 4.16 x Falls with 8.85 within 0
4. G bison 9.36 x to 200 Mtr panel 8.85 from HTL walls (CRZ-III)
5. H erected 8.95 x on 9.59
6. I Ground concrete 21.76 x Falls Floor Plinth 18.76 within 200 to 500 Mtr from HTL.(CRZ-
III)
7 J Under Under- 6.2 x
Ground ground 3.37
Tank tank
construc
ted with
Laterite
stone
masonry Partly
and falls
covered within 0
with to 200
R.C.C. Mtr. &
slab. partly
8. K G+1 Metal 9.52 x falls in
Structure fabricate 9.04 200 to
structure 500 from
having HTL (CRZ-
bitumen III)
roofing
with
bison
panel
walls
erected
on
Concrete
Plinth
9 L G +1 Metal 9.04 x
Structure fabricate 9.97
10 M structure 4.20 x
Page 20 of 37
having 9.02
11. N to P bitumen 9.04 x
roofing 9.65
12. Q with 9.04 x
bison 9.33
13. R panel 4.51 x
walls 9.04
Erected
on
211/2-A Concrete
Plinth
14. S Concrete Concrete 22.08 x Falls
Plinth Plinth 4.81 within 0
construc to 200
ted with mtr. From
Laterite HTL (CRZ-
Stone III)
Msonry
15. T Ground Metal 17.37 x
Floor fabricate 8.26
structure structure
having
bitumen
roofing
with
bison
panel
walls
Erected
on
Concrete
Plinth.
16. U.W. Concrete Concrete
Footpath Footpath
construc
ted on
ground
with
Rubble Falls
packing within 0
17. V Swimming Swimmi to 200
Pool ng Pool Mtr. from
construc HTL (CRZ-
ted III)
below
the
ground
with
laterite
stone
masonry
1. A laterite stones compound wall is constructed on the North- Eastern Side of the Land in question abutting to Survey No. 211/2-A-1 and other is constructed on the North- western side of the land in question part in Survey No. 211/2-A(part) Page 21 of 37
2. A shed net fencing over metal pipes fixed with metal gate is erected on the Southern side of Land in question part in Survey No. 211/2-
A"
24. The Applicant has filed Rejoinder affidavit dated 26.02.2023 where- in it is submitted that Respondent No.4/M/s Lucky Realtech Pvt. Ltd. has admitted to have used concrete in its construction in their reply affidavit dated 17.11.2022 at paragraph No.26. In the GCZMA inspection, plinths of laterite masonry with thin layer (7 cm Thick) of plain concrete cement was found. The Respondent No.1/GCZMA has approved only wooden/ natural / biodegradable material to be used and no cement/ concrete is to be used. Structures should be one meter above ground on stilts of wooden poles. These permissions/approvals were given by revised permission on 09.06.2021, but the Respondent No.4 has violated all these conditions and has carried out concrete flooring in all the structures(Cottage/huts etc.), constructed RCC compound wall, ground plus one floor structures, digging and laying pipes grouting, etc. 43 Cottages, 1 Restaurant, 1 Wellness Centre and 1 conference Hall were approved by the Respondent No.1/GCZMA. As per the additional affidavit dated 05.01.2023, in GCZMA Site Inspection report dated 30.08.2022, the para 9 in the table states that the approved structures for Respondent No.4 are 20 Cottage blocks, 1 Restaurant and 1 reception block. The Respondent No.4 has given cryptic reply that they have decided to construct less number of structures than approved but have not clarified the number of these structures. The rest of the contents of this affidavit are almost the same facts which have been stated by the Applicant in his earlier affidavit. Hence, they need not be reproduced here.
25. The stand of Respondent No.8/Rajendra Kumar Kamra S/o Mr. Leela Krishna Kamra is as follows:
From the side of Respondent No.8/Rajendra Kumar Kamra S/o Mr. Leela Krishna Kamra, reply affidavit dated 17.04.2022 has been filed Page 22 of 37 where-in it is submitted that the applicant should have preferred an appeal under Section 16 of the NGT Act, which is already barred by limitation. The Applicant has resorted to seek remedy under Section 14 of the said Act, which is time barred. Pursuant to the approval granted by the Respondent No.1/GCZMA on 06.07.2021, the hotel project of the Respondent No.8 was commenced/undertaken as on 08.09.2021.
Initially, the answering Respondent was not made a party in the present proceeding, rather on 12.12.2022, the applicant got the answering respondent impleaded on account of allegation concerning illegality in the erection of structures/ cottages by the answering Respondent. The Applicant has chosen to selectively target only four hotel projects. The answering Respondent is a co-owner of a piece of landed property, totally admeasuring 3955 sq.m. situated at Village Panchayat of Mandrem, Pernem Taluka, which is a part of the larger property bearing Survey No. 211/2-A of Revenue Village Mandrem. The answering Respondent along with Mr. Akhil Bansal, Mr. Girish Kumar Arora and Mr. Kamal Takkar are the other co- owners of the said property. The other co-owners of the said property have nothing to do with the erection of the structures/ cottages and operation of the hotel. Therefore, NOC was applied by the answering Respondent. The said property situated partly within 0-200 mts. from the HTL and partly within 200-500 mts from the HTL of the CRZ-III Zone. The said property is classified partly as „Orchard‟ and partly as „Settlement‟. An application was made before Respondent No.1/GCZMA on 14.06.2021 seeking permission for erection of 21 cottages and 1 restaurant/ reception which was approved in its meeting held on 06.07.2021 of GCZMA. Cottages and allied facilities which have been erected by using wooden particle-boards/ engineered wooden planks in conjunction with certain modern materials such as bison panels and G. I. Pipes, which was necessary, considering the inclement weather conditions prevailing in the area particularly during the monsoon season and also for the purpose of ensuring structural stability Page 23 of 37 of the cottages which are totally temporary in nature. The development has already been completed. The GCZMA conducted a site inspection of the said property on 03.01.2023. The structures identified in the Site Inspection Report with alphabets „A‟ to „V‟ are concerned, it is denied that any cement, concrete, RCC slab or masonry has been used in its erection. The cottages and allied facilities have been erected using wooden particle-boards/ engineered wood planks in conjunction with certain modern materials such as bison panels and G. I. pipes. With respect to the structures shown by alphabets „U‟ and „W‟, by no stretch of imagination, can it be called of permanent nature. There is no concrete footpath constructed, it is true that rubble stones have been compacted/laid on the ground and detachable interlocking pavers were initially placed on top of the rubble to facilitate movement of guests and staff. With respect to structure alphabet „V‟, it is denied that there is any swimming pool constructed in the property or that there is any lateriate stone masonry which has been used for that purpose. The answering Respondent uses the harvested water for drinking purpose besides gardening and other domestic needs. As regards the laterite stone compound wall, the same is a very old compound wall which has been in existence prior to coming into force of the CRZ Regulations in the year 1991. Further, it is stated that the said land is not designated Turtle Nesting Site of Mandrem Beach nor as a „No-Take Zone‟. The development in the said property is not prohibited in terms of the Beach Carrying Capacity Report. A demarcated part of the Mandrem Beach, that too, on the sandy shore, has been provisionally earmarked as a Turtle Nesting Site/ No Take Zone, which is very far away from the site of the property of answering Respondent as it is situated on the landward side of an existing 6 mt. Wide Ashvem-Mandrem main road and is part of the Village settlement area. Therefore, the application deserves to be dismissed with exemplary cost.Page 24 of 37
26. From the side of Respondent No.2/Goa Forest Department, counter reply affidavit dated 19.04.2023 has been filed where-in it is submitted that the only relief which has been claimed against the answering Respondent is as below:
"B Direct the Goa Forest Department to submit a report (including detailed map) demarcating the „No Take Zone‟ of Mandrem Beach and providing the location of all the Survey Nos.(in particular Survey No. 211/2-A) of Village Mandrem, Pernem Taluk, North Goa District, Goa which are located in the „No Take Zone‟ of Mandrem Beach as recommended by the draft "Sea Turtle Nesting and habitat Management Plan"
(2020)"
27. Further, It is submitted that the Draft Turtle Nesting Plan has been prepared by the Centre for Environment Education (CEE Goa State Office) for the Respondent No.1/GCZMA inter alia for the securing the seascape, landscape and riverine areas/ routes for safety and conservation of sea turtle arriving at the nesting grounds or using the nearshore waters of the beaches for feeding/ foraging/ congregation. The plan is intended for the key institutions management (Department of Forest, Govt. of Goa) that is mandated and authorised for conservation management measures for sea turtles in Goa and has the scope for establishing and implementing Sea Turtle Nesting and Habitat Management Plan in Goa. The plan recommends general and beach- specific management measures to be implemented for protection and conservation of sea turtle nesting habitats in Goa, enabling sustainability practices and processes for development of beaches, and engaging various stakeholders to contribute such conservation measures. As far as Mandrem is concerned, a stretch of 2.5 Kms of the beach has sporadic nesting. The Goa Forest Department has adapted a strategy of shifting of the nest to Morjim for a better coordinated conservation effort. Yearly nesting also has been observed on a small stretch of beach adjoining private property, the private land owners assist Goa Forest Department in guarding such nests.
Page 25 of 37
28. Chapter-6 of the aforesaid Draft Plan is titled "Turtle Nesting Observation Records in Mandrem" . The chapter has the basic record of turtle nesting as maintained by the Goa Forest Department in Mandrem/ Ashvem from 2011-2012 to 2019-20, details of which are mentioned in that para.
29. Chapter 10 of the draft Turtle Nesting Plan titled "Sea Turtle Nesting habitat Management Plan" provides that the aim of the plan is to protect, conserve the turtles and their habitat while enabling sustainable development in and around the turtle nesting beaches of Morjim, Mandrem, Agonda and Galgibag. It proposes that each of the beaches shall have clear demarcation of the extent and boundary of the geographical/spatial space where the management plan shall apply such as „No Take Zone‟ etc. Clause 10.4A provides for onshore Beach Habitat Management (terrestrial). It refers to the CRZ 2011 recognizing the beach streach of Mandrem as the turtle nesting site, the details which are given in the tabular form in that para.
30. Clause 5 provides for " Beach Space and Shack Management". The Respondent No.1/GCZMA has been assigned the task of evolving a management plan. The GCZMA in association with the Goa Forest Department, local stakeholders and other line departments is to identify beach spares and divide them into „go‟ and „not go‟ areas. Current practice at Morjim beach is that a 600 meter stretch near the river mouth in Tembvaddo area is exclusively earmarked as No-Take area(Turtle Conservation Reserve). Thus, earmarking/ demarcating an area as a No take Area is the responsibility of the Respondent No.1/GCZMA.
31. It is further mentioned that the answering Respondent inter alia undertakes the activities which are mentioned in para (a) to (k) of para 10 aimed at nurturing sea turtle nesting sites and protecting sea turtles across the State of Goa.
32. It is further mentioned that the measures are being adopted for management of turtle nesting sites recommended by the Government of Page 26 of 37 Goa vide letter dated 02.11.2016, the details which are mentioned in sub para a. to h. of para 11.
33. It is further mentioned that the beach of Mandrem and other beaches across Goa, have been designated as turtle nesting sites under the Coastal Zone Regulations, 2011. Thus, the statutory authority empowered to enforce the CRZ Notification is the Respondent No.1/GCZMA. Since the answering Respondent is also tasked with implementing the provisions of the Wildlife Act and the Forest Act, it routinely undertakes activities in coordination with the Respondent No.1/GCZMA.
34. From the side of Respondent No.1/GCZMA counter reply affidavit dated 20.04.2023 has been filed where-in it is submitted that the answering Respondent has issued the following permissions and approvals to Respondent Nos. 4 to 8 to construct the structures mentioned hereinbelow:
" 8.1. A permission/ approval dated 09.06.2021 was issued to Respondent No.4(M/s Lucky Realtech Pvt. Ltd.) for erecting temporary shacks, cottages, huts and receiption having total area of 1,500 sq. m.
8.2. A permission/ approval dated 09.06.2021 was issued to Respondent No.5(Mr. Pankaj Chopra) and Respondent No.6 (Mrs. Goldy Chopra) for erecting temporary shacks, cottages and reception having total area of 800 sq.m.
8.3. A permission/ approval dated 09.06.2021 was issued to Respondent No.7(Mr. Satyam Thakral) for erecting temporary 2 shacks and 15 huts/ cottages consisting of 30 rooms.
The answering Respondent has annexed copies of the aforesaid permissions/ approvals dated 09.06.2021 along with the site plans to its Affidavit dated 05.01.2023 as Annexure R-1, Annexure R-2 and Annexure 3, respectively. The answering Respondent craves the leave of this Hon‟ble Tribunal to refer to, and rely upon, the same during the course of oral submissions.Page 27 of 37
8.4. A permission/ approval dated 23.07.2021 was issued to Respondent No.18(Mr. Rajendra Kumar Kamra) for erecting temporary 21 cottages and 1 restaurant having total area of 800 sq.m.
A true copy of the permission/ approval dated 23.07.2021 granted to Respondent No.8 along with the site plan is annexed and is marked as Annexure-A
9. The answering Respondent took immediate cognizance of the Applicant‟s complaint dated 14.07.2022, and conducted a site inspection of the structures existing on the subject property on 27.08.2022.
Accordingly, a report of the site inspection came to be prepared on 30.08.2022.
The answering Respondent has annexed a copy of the said site inspection report to its affidavit dated 18.10.2022 as Annexure R-
1. The answering Respondent craves the leave of this Hon‟ble Tribunal to refer to, and rely upon, the same during the course of oral submissions."
35. On the basis of the above pleadings and arguments made before us by the learned counsel for the parties,following issues are framed for being decided by us in this Original Application.
I. Is GCZMA taking requisite actions after violations are found in site inspection ?
II. Is GCZMA required to map „No Take Zone‟ on CZMP Maps. ?
III. Is GCZMA required to prepare and upload 1:4000 scale CZMP on its website ?
IV. Is GCZMA required to upload consents/ approvals
(including conditions) granted by it for
Shacks/Huts/Tents/Cottages on it‟s website? Findings 36 . As to Issue Nos. I and II: As per these issues, we have to decide as to whether GCZMA is taking requisite actions after violations are found in site inspection? and it required to map „No Take Zone‟ on CZMP Maps? In this regard, Page 28 of 37 we have to submit that the learned counsel for the Respondent Nos. 8, 4 and the Applicant had argued consolidatedly on the entire case and not issue wise because issues were not framed by then. The issues have been framed by us for clarity in our directions. The Respondent No.8/Rajendra Kumar Kamra, S/O Ms. Leela Krishna Kamra has drawn our attention to Para 4 of our order dated 21.04.2023 and submitted that several photographs which have been relied upon by the Applicant and are annexed at 23 and 529 of the paper book, in order to show that the disputed structures are identical, need to be verified because according to the applicant, as per the photo at Page No. 529 of the paper book, the structure alleged to have to been raised by the Respondent No.8 is also the same which is found at Page No.23 of the paper book as well, even though the Respondent No.8 was not a party. Next he argued that the prayer before the Respondent No.8 is time barred because the minutes of the meeting of GCZMA by which permission was granted for construction to the answering Respondent is dated 06.07.2021 which was uploaded on 10.08.2021. It is evident from the screen shot which is annexed at Page No. 717 of the paper book. The present O.A. had been filed on 27.07.2022 against Respondent No.4 to 6 only. But later on on 23.12.2022, the answering Respondent was impleaded hence, O.A. against him was much beyond the period of limitation. Though he clarified that as regards the proceeding going on before the Respondent No.1/GCZMA, there is no objection with respect to limitation as the matter is still under consideration before the GCZMA.
From the side of Respondent No.4/M/s Lucky Realtech Pvt. Ltd. it has been brought to our notice that proceedings initiated against him need to be dropped because his name has already been deleted by this Tribunal by allowing I.A. No. 115/2023. Pursuant to dropping the charges against the Respondent No.4 by the Respondent No.1/GCZMA, an appeal has been preferred by the aggrieved party. Page 29 of 37
Now, we would like to mention as to what are the arguments made by the learned counsel for the Applicant. Our attention is drawn by learned counsel to Page No. 263 of the paper book which is Site Inspection Report of Expert Member of GCZMA on 27.08.2022 where-in it is submitted that the Respondent No. 5/Pankaj Chopra was found to have committed many violations and also Respondent No.7/Mr. Satyam Thakral was found to have committed various violations which are given in tabular form by mentioning „no approval‟ and having shown these violations it is mainly argued that despite the violations having been found by the Expert Member of the GCZMA, no action has been taken till date. He has also drawn our attention to the Judgement of the Hon‟ble Bombay High Court at Goa P.I.L. Writ Petition No. 2106 of 2021(F) Francisco Drago Vs. State of Goa, Through its Chief Secretary and 9 Ors. where-in attention is drawn to Para-7 which is quoted herein below:
"7. Meanwhile, throughout the tourist season, the person who put up such illegal constructions without regard for the environment or the legal provisions occupy and commercially exploit such constructions. For example, in this case, on account of the delay of the GCZMA in disposing of its own show- cause notices, Respondent No.10 continues to occupy and use the structures for commercial purposes. Therefore, the Centre must immediately reconstitute the GCZMA and make it fully functional, lest the unlawful activities within CRZ will continue with no Authority to prevent or check the same.
The rule of law must not be rendered a casualty by such inaction. Moreover, the conclusion date of the GCZMA term was known in advance. Therefore, steps should be taken to have a new body in place. For all these reasons, Respondent No.11 must take immediate steps to have in place a GCZMA at the earliest."
It is stated by the learned counsel that the private respondents have violated the terms and conditions stipulated by the GCZMA and despite the violation having been brought to knowledge of GCZMA by its Expert Member, no interim direction was issued against the said Page 30 of 37 respondents in order to stop them from going with the commercial activity and a very long time is taken by the GCZMA in disposing the Show Cause Notices allowing the respondents to indulge in commercial activity illegally.
In rebuttal, the learned counsel for the GCZMA said that it is necessary to follow the procedure of issuing notice and giving opportunity of hearing to the respondents before passing interim order of stay. In this regard, the learned counsel for the GCZMA relied upon judgment of Hon‟ble Supreme Court passed in Civil Appeal No. 3856/2022 Singrauli Super Thermal Power Station Vs. Ashwani Kumar Dubey & ors. dated 05.07.2023 where-in attention is drawn to Para- 18 which is quoted herein-below:
"18. We have perused the impugned order of the NGT and particularly paragraph „16‟ which has been extracted above. It is apparent that the appellant(s) herein who were respondents before the NGT were not given an opportunity to file their objections to the recommendations made by the Committee constituted by the NGT which is apparent by the fact that the recommendations were uploaded on 15.01.2022 and the final order of the NGT was passed three days later on, i. e.
18.01.2022. Thus, this is a clear case of there being non- compliances with the principles of natural justice. On the said ground alone the impugned order is set aside, the matter is remanded to the NGT for re- consideration from the stage of the recommendations filed by the Expert Committee constituted by the NGT. The Appellant(s) herein are permitted to file their objections, if they are so advised. The NGT shall consider the objections, if any filed to the recommendations and thereafter dispose of the applications in accordance with law and after giving a reasonable opportunity to all parties."
We are also of the view that it would be appropriate to issue notice to the violators before passing an adverse order, taking into consideration the principle of natural justice as has been mandated by the Hon‟ble Supreme Court in Civil Appeal No. 3856/2022(Supra). Though, we expect that the GCZMA would try to dispose of the Show Page 31 of 37 Cause Notice at the earliest preferably within one month giving opportunity of hearing, without unduly granting adjournment on flimsy ground so as to put a check on misuse of the violations.
Further, the learned counsel for the Applicant has drawn our attention to Page No. 264 of the paper book, which is Para- 10 of the report of the Expert Member where-in it was clearly observed that the structures consist of light steel tube frames with cement particle board partitions. The plinths are of laterite masonry with thin layer. It was stipulated in the terms and conditions that the temporary structure should be made of wooden material as per the recommendation of Beach Carrying Capacity Report. No cement/ concrete should be used for flooring and GCZMA shall retain the right to revoke this recommendation in case of breach and that order of demolition of structure, disconnection of Power Water supply etc may be passed in the case of breach, but despite these stipulations, GCZMA has not ensured these compliances as is evident from the report of the Expert Member of the GCZMA.
Further, it is argued by him that under Section 20 of the NGT Act „Precautionary Principle‟ is laid down which places reverse burden on the violators/Project Proponent but that principle has also not been adhered to by the GCZMA. Therefore, a direction be issued to the GCZMA to stick to a timeline for deciding Show Cause Notice.
We find from the evidence, which has come on record that the GCZMA, on the basis of its own Site Inspection, has found various violations to have been done on the part of private Respondent Nos. 5 to 8 which have already been noted above, while dealing with the respective affidavits. But, no prompt action was taken at the end of the GCZMA in that regard. However, it is also very evident from the pleadings that the GCZMA is in the process of taking action against the violators at a considerably slow pace which needs to be accelerated. As regards Respondent No.4, the GCZMA has already Page 32 of 37 dropped the complaint and separate Appeal has been filed against the said decision. Therefore, we exclude his case from the present matter. As regards the Respondent Nos. 5 to 8, it has transpired that the process of hearing is going on before the GCZMA, which is likely to render its finding regarding the violation and appropriate action. We direct the GCZMA to conclude the said hearing and take decision in their matters expeditiously, preferably within a period one month. The issue No.I is decided accordingly.
Further, it is argued by him that relief „B‟ pertaining to demarcation of „No Take Zone‟ has not been met so far.
The attention is also drawn to draft „Sea Turtle Nesting and Habitat Management Plan (2020) which is at Page Nos. 170 to 220 of the paper book, the relevant portion has been read out by him, pointing out that Goa has a coastline of about 120 km, of which around 65 km are Sandy beaches. At page No. 179 of the paper book it is recorded that out of 120 Km coastline, about 8 km in Goa have been identified as major nesting sites and are being protected by the Goa Forest Department which are Morjim in north Goa, and Galgibaga and Agonda in sought Goa. At 10.2 of the said report dealing with extent of turtle nesting habitat management plan, it is proposed that each of the beaches shall have clear demarcation of the extent of boundary of the geographical/spatial space where the management plan shall apply such as „No Take Zone‟, sustainable Tourism Zone and Fisheries Livelihoods Zone. At page No. 216 of the said Report dealing with Management approach recommended for Morjim and Mandrem nesting beaches, „No Take Zone‟ is dealt with where-in it is recorded that this zone must be maintained as a sacrosanct space. As tourist will be permitted to enter this space, no extractive activities will be permitted over here. No shacks will be permitted, riding of bikes, parties, bright lighting etc. will be prohibited. The beach ecology including sand dunes will be Page 33 of 37 maintained and enriched by the plantations of native beach vegetation species.
On the above based documentary evidence, it is urged by the learned counsel for the Applicant that „No Take Zone‟ is required to be marked by the GCZMA under CRZ Notification 2011 because draft „Sea Turtle Nesting and Habitat Management Plan (2020) has been prepared under the Regulation of CRZ Notification 2011, hence, „No Take Zone‟ should also be marked. But the same is being resisted by the learned counsel for GCZMA by saying that because of the finalization of the Coastal Zone Management Plan.(CZMP) having been done, there is no need of demarcation of „No Take Zone‟. But, in our opinion the concept of „No Take Zone‟ is more comprehensive for the turtle conservation and therefore Turtle Nesting and Habitat Management Plan needs to be implemented, both in letter and spirit.
Further, we find that draft „Sea Turtle Nesting and Habitat Management Plan was prepared in the year 2020 and till then CZMP as per CRZ Notification 2011 were not finalized/ approved.
The copy of the minutes of the 39th meeting of the National Coastal Zone Management Authority dated 01.09.2022 has been provided during the argument by the learned counsel for the Applicant. It is evident from it that the CZMP map on scale of 1:25000 and 1:4000 scale has already been prepared. Therefore, it would be appropriate that these CZMPs prepared by GCZMA may be used for finalisation of the draft „Sea Turtle Nesting and Habitat Management Plan‟, to be prepared by the Centre for Environmental Education Goa within a period of one month. We are of the view that the effort which has been put in, in preparing these maps should be utilized to the full. Issue No.II is decided accordingly.
37. As to Issue No. III :
As per this issue, we have to decide as to whether GCZMA is required to prepare and upload 1:4000 scale CZMP on its website ? . Page 34 of 37 In this regard, with respect to GCZMA uploading the CZMP map in the scale of 1:4000 on its website, we have to consider following points:
1. As per Annexure-I of CRZ Notification 2011, Local level CZM Maps are for the use of local bodies and other agencies to facilitate implementation of the Coastal Zone Management Plans and Cadastral(village) maps in 1:3960 or the nearest scale, shall be used as the base maps.
2. The said Notification in Section 5 directs that the Coastal States and Union Territory will prepare draft CZMPs in 1:25000 scale map identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in annexure- I of the notification, which involves public consultation; and the Coastal Zone Management Authority of a State or of a Union Territory shall submit the draft Coastal Zone Management Plan along with its recommendations to the Ministry of Environment, Forest and Climate Change, after incorporating the suggestions and objections received from the stakeholders which will be considered and approved by MoEF&CC.
3. We note that as per CRZ Notification Regulation 4.2- procedure for clearance of permissible activities requires that all projects attracting the said notification shall be considered inter alia on submission of CRZ map indicating HTL and LTL demarcated by the authorized agency in 1:4000 scale and project layout super imposed on the above map indicated at (e) above while recommending CRZ clearance.Page 35 of 37
4. The Notification does not state who will approve CZMPs prepared in the scale 1:4000 to be used by local agencies. In absence of clear directions from MoEF&CC, we leave it to the discretion of GCZMA whether to upload 1:4000 scale CZMP maps on the website. We decide this issue accordingly.
38. As Issue No. IV As per this issue, we have to decide as to whether GCZMA is required to upload consents/approvals (including conditions) granted by it for Shacks/Huts/Tents/Cottages on its website ?. In this regard, our attention is drawn to the CRZ Notification 2011 the regulation 4.2 (vi) of, which says as follows:
"(vi) To maintain transparency in the working of the CZMAs it shall be responsibility of the CZMA to create a dedicated website and post the agenda, minutes, decisions taken, clearance letters, violations, action taken on the violations and court matters including the orders of the Hon‟ble Court as also the approved CZMPs of the respective State Government or Union Territory."
39. We are of the definite opinion that when there is clear cut direction that for GCZMA for maintaining transparency in its working, it must create dedicated website, whereon it should post agenda, minutes and other decisions, the GCZMA must place on its website all the consents/approvals granted with respect to Shacks/Huts/Tents/Cottages as prayed, within a period of one month from the date of uploading of this order with prospective effect. This issue is decided accordingly.
40. We have already covered four issues which were framed by us and our opinion is expressed thereon above. Now, we would like to take up the matter as to whether any order is required to be passed with respect to prayer at „A‟ which says that a Site Inspection Report be ordered to be prepared by GCZMA for alleged ongoing construction in Survey No.211/2-A of Village Mandrem. We find that the GCZMA Page 36 of 37 has already conducted site inspection and has found various violations by the Private Respondent Nos. 5 to 8, which is a matter under their consideration. Although, with respect to Respondent No.4 they have not found any violations, hence the proceedings against him have been dropped, against which Appeal has been preferred by the aggrieved party. We are of the opinion that the GCZMA must conclude the hearing and decide all the violation cases i.e. against Respondent Nos. 5 to 8 within a period of one months. If any private respondent feels aggrieved by the said decision it may approach appropriate forum under relevant provisions of law.
41. With above direction, this Application stands disposed of. All pending I.As., if any, also stand disposed of. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM July 26, 2023.
Original Application No. 70/2022 Sachin J.
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