PETITIONER: GOA FOUNDATION, GOA ..APPELLANT Vs. RESPONDENT: DIKSHA HOLDINGS PVT.LTD & ORS. DATE OF JUDGMENT: 10/11/2000 BENCH: Umesh C. Banerjee, J. JUDGMENT:
BANERJEE, J.
L…I…T…….T…….T…….T…….T…….T…….T..J
I have had the privilege of going through the lucid
judgment of my learned Brother Pattanaik, J. and while
recording my concurrence therewith, however, I wish to add a
few pages as my own reasonings. Environmental degradation
said to by reason of disturbance of existing sand dunes on
the sea front of Goa is the focal point for consideration in
this Appeal – the High Court answered it in the negative.
Goa, a popular tourist resort has recently been facing a
tremendous influx of people as any other urban area.
Tourism has turned out to be the basic economic benefactor
to the State and correspondingly attracts the multifarious
attributes of the same. Tourism is an industry and this
growth of tourism has attracted all the other ancillary
agencies including Hoteliers to start commercial operations
and business activities. Panaji being the capital city has,
as a matter of fact, hundreds of such hotels big and small
and it is in pursuit of this trade and commercial venture
that thenceforth uninhabited Beaches of the State being
converted into commercial arena by way of hotels and
beach-resorts of course to the benefit of the State
exchequer but obviously commencement of a business activity
on a Virgin Beach could lead to environmental degradation
and resultantly various non- governmental organisations have
come up to protest against such exploitation of the natures
bounty. The present Petition before this Court is one such
instance. To put the record straight however, be it noted
that though originally the writ petition was moved before
the Goa Bench of the Bombay High Court but subsequently
matter was transferred to Bombay and was heard by the
Division Bench which negated the plea of environmental
degradation as noticed above and hence the Appeal. In the
present Public Interest Litigation, the main thrust of
challenge pertains to maintenance of environmental
equilibrium and bio-diversity in Nagorcem Beach, Palolem,
Taluka Cancona, Goa being a coastal area in the State of
Goa. The factual backdrop depicts that M/s. Diksha
Holdings Pvt. Ltd., (the Respondent No.1 herein) applied to
Town & Country Planning Department for permission to the
construction of a Beach resort in January, 1996 along with a
contour and site plan of the area. The records depict that
Cancona Municipal Council upon due consideration of the
clearance report from the Ministry of Environment and
Forests granted sanction for construction of Hotel on 16th
January, 1998 which however, prompted the foundation (the
Appellant herein) to approach the Court inter alia
contending that the Ministry of Environment and Forests, did
not, as a matter of fact, consider all relevant material
particulars before issuance of the clearance and
consequently the grant of sanction also stands vitiated. On
the second count the Appellant contended that in any event
the area being in the Coastal Regulation Zone (CRZ) and the
construction of the Hotel does not come within the ambit of
permissible activities in terms of the Notification under
Section 3(1) and 3(2)(v) of the Environment Protection Act,
1986, there appears to be a serious irregularity resulting
in the grant of an illegal sanction for setting up the
project, more so by reason of the existence of sand dunes
and categorisation of the area as CRZ-I, which prohibits any
construction within 500 metres of the High Tide Line. While
it is true that nature will not tolerate after a certain
degree of its destruction and it will have its toll
definitely though may not be felt in presenti and the
present day society has a responsibility towards the
posterity so as to allow normal breathing and living in
cleaner environment but that does not by itself mean and
imply stoppage of all projects. In my Judgment in regard to
East Calcutta Wetlands (People United for Better Living in
Calcutta – Public and another v. State of West Bengal :
AIR 1993 Calcutta 215) I did speak of a balance between
development and ecology and since my learned Brother
Pattanaik, J. has already dealt with the issue, I refrain
myself from dealing with the matter in extenso in that
regard excepting however, recording my concurrence therewith
and state that harmonization of the two namely, the issue of
ecology and developmental project cannot but be termed to be
the order of the day and the need of the hour. Before
proceeding with the matter further, it be noted that the
schedule attached to the local Town & Country Planning Act
depict that the area in question was designated in the
original plan as an orchard and as early as in 1989 the
Settlement recorded a proposal to convert the plot from
orchard to Settlement (Beach Resort). This proposal was
finally accepted and approved in early April, 1990 and
accordingly the record of Rights recorded the conversion
from orchard to settlement as its land-use. India,
admittedly, has around 6000 kms long coastal line against
which Goa having 110 kms consisting largely of long sandy
beaches. The beauty coupled with infrastructural facility
has made Goa renowned the world over. Tourism as noted
above is the main contributing factor for Goas economy. We
have on record in the matter in issue the Notifications
issued by the Central Government in regard to regulation of
Coastal Zones in the country popularly known as CRZ
Notifications which has, in fact, regulate the user of the
beach area of the country. A brief reference to the norms
for regulation of activities in different categories of CRZs
would be convenient at this stage: CRZ-I : No new
construction shall be permitted within 500 metres of the
High Tide Line. No construction activity, except as listed
under 2(xii), will be permitted between the Low Tide Line
and the High Tide Line;
[provided that construction of dispensaries, schools,
public rain shelters, community toilets, bridges, roads,
jetties, water supply, d rainage, sewerage which are
required for traditional inhabitants of the Sunderbans
Bio-sphere reserve area, West Bengal, may be permitted, on a
case to case basis, by an authority designated by the State
Government].
CRZ-II :
(i) .
(ii) .
(iii) .
CRZ-III :
(i) The area upto 200 metres from the HTL is to be
earmarked as No Development Zone. [No construction shall
be permitted within this zone except for repairs of existing
authorised structures not exceeding existing FSI, existing
plinth area and existing density, and for permissible
activities under the notification including facilities
essential for such activities. An authority designated by
the State Government/Union Territory Administration may
permit construction of facilities for water supply, drainage
and sewerage for requirements of local inhabitants].
However, the following uses may be permissible in this zone
agriculture, horticulture, gardens, pastures, parks, play
fields, forestry and salt manufacture from sea water
(ii) Development of vacant plots between 200 and 50-0
metres of High Tide Line in designated areas of CRZ-III with
prior approval of Environment and Forests (MEF) permitted
for construction of hotels/visitors subject to the
conditions as stipulated in the guidelines at Annexure-II.
(iii)
(iv)
In support of the appeal, Dr. Calude Alvares, a
well-known Environmentalist of the country and
appearing-in-person contended that by reason of the
restrictions in terms of the CRZ Notification for setting up
or expansion of industries and which lies about 500 meters
from the High Tide Line, question of construction of any
building (whether a hotel or beach resort or even any other
building) cannot be considered and the act or acts of the
concerned authority in the matter of approval to the
proposed construction is the resultant effect of total non-
application of mind. CRZ Category-I does not permit any new
construction except, however, as mentioned in the
Notification itself. It is in this perspective that Dr.
Alvares however contended that the matter ought to be
remitted back to the concerned authority for reconsideration
of the same and upon examination of proper materials in the
matter in issue. An in-depth analysis of the submission of
Dr. Alvares would indicate that according to him demolition
of sand dunes may create an environmental degradation and
reliance was placed on the Report of the National Institute
of Oceanography. Before, however, dealing with the Report,
a cursory glance on to the nature of sand and sand dunes and
impact thereof may be noticed. Sand in common English
parlance cannot but mean and include minute fragments
resulting from wearing down of siliceous rocks found
covering parts of the sea-shore, river-beds, deserts (vide
Concise Oxford Dictionary). Sand is a product of abrasion
or break down of older parent or source rocks. Mcgraw- Hill
Encyclopedia of Science and Technology (6th Edn.) describes
the characteristics of sand as below: Sand can be
described in terms of both texture and composition. Textual
attributes include size, size sorting, angularity, shape and
surface texture of the grains. Grain size refers to the
mean diameter of the grains and is usually determined by
sieving. Grain size is directly related to the energy of
velocity of the agent which transports the grains and is
inversely related to the total distance of transport prior
to deposition. Size sorting is a measure of the range in
grain sizes within a given deposit of sand. Poorly sorted
sands contain grains of many different sizes within the
sand-size range; well-sorted sand have only a narrow range
of particle diameters. The best-sorted sands are those
transported by agents of low viscosity (for examine, wind)
and deposited very slowly.
Sand is found virtually anywhere where fluids with high
kinetic energy transport and deposit sediment. The largest
modern-day accumulations of sand are in the vast inland
deserts and on beaches. In both environments much of the
sand has been reorganized by wind into dunes. Other
significant concentrations of sand are found in alluvial
fans which form at the base of mountains, on bars in rivers,
and in a variety of shoreline settings including spits,
barrier islands, and tidal flats, and in parts of deltas.
Until about the 1950s sand was not thought to be present in
the oceans very far beyond the inner parts of the
continental shelves. However, it has been shown that sand
can be transported even beyond the shelves into very
deep-water settings by density currents which commonly move
down submarine canyons.
Mcgraw-Hill Encyclopedia of Science and Technology
further notes its use in the manner below: Sand is an
important economic resource. Silica (SiO²) from quartz sand
is the chief ingredient for glass. Sand is also employed as
a filler in concrete and plaster, as an abrasive (for
example, on sandpaper), and as a fertilizer (glauconite
sand).
Needless to record that sand is normally transported
away from its site of origin by wind and water before it
being deposited at a particular place.
The New Encyclopaedia Britannica (Volume 10) has this to
note for sand dune:@@
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Sand dune, hill, mound, or ridge of loose material (not
always sand) formed by wind action. The existence of dunes
is a direct function of the ability of wind to transport
unconsolidated material. They are commonly associated with
desert regions where windblown sand occupies extensive
areas. It has been estimated, for example, that sand
deposits in the Sahara Desert cover about 2,700,000 sq mi
(7,000,000 sq km). In the recent geological past desert
areas may have been even larger during dry periods in the
Pleistocene glaciation. At that time great areas of loess
(wind-blown silt) were deposited across North America,
Europe, and Asia. Dunes are also associated with coasts
where beach sands may be reworked by the wind.
The geomorphic characteristics of sand dunes can be best
appreciated upon assessment of two basic elements, namely,
sand and the wind and it is an interaction of these two
elements which bring about the sand dunes. It is
interesting to note that sand dunes are invariably built by
particles of various forms and shapes of sand, sized up by
waves and carried by the wind. Clay particles usually do
not come along with sand particles. The growth of sand,
however is totally dependent upon the direction and velocity
of the wind. By reason wherefor sand dune which cannot be
attributed to be ancient has been noticed to have another
redeeming feature of being a movable along with time, tide
and the wind. In the Coastal Zone Management Plan for Goa
as issued by the Goa State Committee on Coastal Environment
(Town & Country Planning Department: Government of Goa),
Government of Goa June 1996, Dr. Wilfred Menezes Mesquita,
the Environment Minister in no uncertain terms stated that
Goa being on the verge of a quantum jump in all round
development and thus having a tremendous pressure on its
natural resources as also environment. The Minister
however, went on to state that though Goa shall have to
achieve economic prosperity but at the same time the
Government cannot afford to damage the ecology and it will
be the endeavour of the Government to achieve both by
maintaining a proper balance. This is exactly how Brother
Pattanaik, J. in his judgment dealt with the issue as
regards the balance between development and ecology and as
such further dilation is not required in the matter
excepting however to note that the Government of Goa was
not, in fact, completely oblivious of the environment of the
area. The Minister of Environment himself makes a note that
a proper balance shall have to be maintained between the
ecology and development. Sand dunes, admittedly, if
otherwise ancient in nature as noticed above, sometimes have
cononut tree grown on the dunes by reason wherefor the
dunes, as a matter of fact, act as a second line of defence
against the fury of any cyclonic onslaught and before
delving into the merits of the matter, another significant
feature which ought to be noticed at this juncture is that
the width of the beaches in Goa is not the same all along
the coastal line and resuntaltly Coastal Management Plan
cannot also be uniform neither can it be put on a formula
each beach is singularly singular and has to be developed or
protected in a specific manner applicable to the concerned
beach only. ISSUES RAISED IN THE MATTER: The criticism
levelled against the judgment under Appeal as noticed above,
is the factum of non-consideration of relevant materials
produced during the course of hearing as also the documents
enclosed with pleadings of the parties. Strong reliance has
been placed on the Report of the National Institute of
Oceanography which admittedly focussed the irreparable loss
of environmental climate in the event of sanction for the
proposed construction. It is at this juncture however would
be significant to note two several factors detailed herein
concerning the above Report: firstly, the Report has been
obtained during the pendency of the Appeal before this Court
and secondly Report has been signed by four several experts
of the Institute of which two were the members of the
Coastal Zone Management Committee of the Government of Goa
which has granted the sanction of the proposed construction
upon due certification with respective signatures. On a
further factual reference at this juncture it appears that
the application for grant of sanction for the proposed
construction was scrutinised by statutory agencies including
the State Environment Department as also the Ministry of
Environment and Natural Resources of the Government of
India. It is worth adverting that the Government of India,
as a matter of fact, examined the issue upon obtaining a
special Report of two very eminent scientists of the
country. The Report, be it noted, as obtained by the
Government of India has been on actual specific verification
of the site in question and it is on the clearance from the
Central Government that the State Government in its bid to
have a balance for development and ecology also considered
the issue and upon due deliberation thereof granted the
sanction. The two scientists of the National Institute of
Oceanography were members of the Committee which
investigated the ecological aspect of the issue and on being
satisfied and there being no affectation of the environment,
the Committee recommended the same upon recording of
signature as a mark of approval of all members including the
two who later give a report otherwise. I do not wish to
make any further comment thereon as regards the subsequent
report excepting however, recording that it is rather
unfortunate that such a state of affairs did take place and
the happenings have involved two very noted scientists of
Western India as also of the country. The other aspect
which needs to be gone into is the factum of affectation of
sand dunes and its environmental impact. Admittedly, the
dunes provide a beauty to the area in question and natures
bounty stands very well exposed in the dunes but sand, it is
to be noted is also used for commercial purposes, but the
factum of the same being capable of a commercial item, has
not been delved into either of the parties in the course of
the submissions. Admittedly, dune sand is also used by the
foundry industry though, of course, Ford Motor Co. have now
started using non-dune sand for foundry operations for
automobile engine castings: non availability of any
evidence of alteration or physical, biological and
geological characteristics of sand dunes ought also to be
noticed and taken into consideration. The factum of
affectation of micro climate downwind of the sand dune area
and the resultant effect therefor has also not been
highlighted so as to warrant any adverse finding pertaining
to the project. There is not even existing an iota of
evidence as regards the resultant damage on the vegetation
top soil or topographic features neither any evidence
pertaining to the elimination of existing flora and fauna of
the area in question, no details are available as regards
the plants species which would otherwise be threatened in
the event of there being such a project. We unfortunately
also do not also have any local environment audit report
excepting however the Report of the National Institute of
Oceanography and we reserve our doubts as to the credence to
be attributed to the report and as detailed hereinbefore in
this judgment. The affectation admittedly cannot possibly
be a mere fanciful idea but there ought to be cogent
materials in support therefor. Unfortunately, we do not
have such cogent evidence or any evidence available in the
matter so as to come to a conclusion about the disturbed
environmental equilibrium by reason of the change of
bio-diversity in the area in question rather the records
suggest otherwise. Another factual element ought also to be
noticed since the same is rather significant to wit: An
assurance or undertaking not to disturb the existing sand
dunes. Mr. Chhagla appearing for the Respondents upon
instructions has candidly submitted that as a matter of
fact, there has been a change in the plan and the new
revised plan contain maintenance of the sand dunes since on
an appraisal of the entire situation, the Respondent feel
that the dunes would otherwise enhance the beauty of the
hotel or the beach resort. Protection of the environment is
required undoubtedly provided however the same is required
and it is in this perspective Mr. Chhagla contended that
the entire edifice of the appellants contention is based on
assumptions de hors the realities. As a matter of fact, a
faint suggestion of motive has also been introduced, we do
not however, subscribe to such a view since the intent of
this particular public interest litigation is the
preservation and maintenance of environment in a beach area
within the Goa Coastal Zone. Coastal Zone shall have to be
protected undoubtedly but development of the area cannot be
decried also in any way provided however, there is no
environmental degradation and it is on this score Mr.
Chhagla contended that, in fact, on the locale there were
temples: educational institutions and settlements as well –
thus, it is not that the beach was totally uninhabited and
there was available an unspoiled beach. The record of
Rights as noticed above has recorded the area in question to
be a beach resort and admittedly also settlement, in fact,
is existing in the area in question, even today. It is not
that a hitherto unspoiled coastal zone is being spoiled, it
is even presently being occupied by human settlements.
Another severe criticism which had come from Dr. Alvares
pertains to the issue of CRZ-I area. In the earlier part of
the judgment I had, in fact, dealt with the categorisation
of the Coastal Zone and CRZ-I, which cannot but be ascribed
to be a totally prohibited zone for any construction and
there also cannot be any dispute in regard thereto. In the
event the area is ascribed to be CRZ-I area, question of any
grant of sanction would not arise and the earlier
pronouncement of this Court of which reference has been made
by my learned Brother Pattanaik, J. has settled the same
finally and I record my respectful concurrence therewith.
The High Court also while dealing with the issue has dealt
with the same and came to a conclusion however, the area is
in CRZ-III and not CRZ-I : Needless to record here that
Governments sanction and Ministry of Environments
clearance (both Central and State Governments) have
proceeded on the basis thereof and we do not find any contra
evidence so as to depict its coastal-zone characteristics
other than CRZ-III. A recapitulation on the score of
Coastal Management would prompt us to record that since each
beach is different in its contour, there is no fixed formula
for its management either. Coastal zone of Goa attracts
tourists by reason of availability of natures bounty but
infrastructural facility is also required to develop this
recently growing tourism industry provided, of course, there
is no permanent affectation of environment in the area in
question. The records depict that the issue of affectation
of environment, be it permanent or even temporary does not
and cannot arise in the contextual facts. Environment is
beauty, environment is our sustenance, as such in the event,
the same perishes, humanity also would perish may not be
today or tomorrow but certainly a day or two later. The
issue, therefore, in the Appeal is whether there is a
degradation of environment in the event of construction, the
records speak volumes in the negative: Environmentalists
opine in the negative would the court be justified in
thwarting the project in the contextual facts – the answer
cannot possibly be in the affirmative. On the wake of the
aforesaid, I record my concurrence with the conclusion of my
learned Brother Pattanaik, J. that the judgment under
Appeal cannot be faulted in any way and as such I would also
dismiss the Appeal without, however, any order as to costs.
