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2019 Supreme(Bom) 1398
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
R.D. DHANUKA, PRITHVIRAJ K. CHAVAN, JJ.
Goa Foundation — Appellant
Versus
Panchayat Of Morjim — Respondent
Writ Petition No. 4 of 2018
Decided on : 17-09-2019
Advocate Appeared:
Norma Alvares, Adv., Anamika Gode, Adv., Sivagnanam, Adv., Abhijit Gosavi, Adv., Datta Prasad Lavande, Adv., P. Dangui, Adv., H. Shirodkar, Adv., Shyam Mehta, Adv., Kunal Dwarkadas, Adv., Yuvraj Choksi, Adv., P. Vernekar, Adv., B. Fataarpekarr, Adv.
Headnote:
Environment Act,1986 – Section 114 – Illegal and arbitrary - Various proceedings from time to time in public interest – Claim of compensation - Under said Notification development of activities in coastal stretches within meters from High landward side are regulated - Under said notification no new construction was permitted in within meters from In area up to earmarked as a Development Zone - Development of vacant plots meters of for construction of hotels and beach resorts was permitted with prior approval of to certain terms and conditions – It is case of petitioners that as per Coastal Regulation nesting beaches are designated as notification also requires that management plans shall be prepared for those four designated turtle nesting beaches - South Goa also has two designated turtle nesting beaches at beach is one of two designated turtle nesting beaches in North Goa other being Mandrel beach which is adjacent – Held, In so far as the apprehension of petitioners that respondent may apply for change in plan by invoking Section Goa Town and Country Planning Act,1974 is concerned that apprehension is without any basis - If any application for any such change is made authority would decide such application on its own merit - There is no substance in submission of learned counsel for petitioners that Beach Carrying Capacity Report cannot be considered as an independent assessment on ground that said report is based on data provided to it by Forest Department - Appeal filed by Hotel owner in case of Hotel Marbella is admittedly pending - Since facts of that case are not brought to notice of this Court this Court cannot take cognizance of said order passed by authority directing authority to demolish said structure - In this case there was no ad-interim injunction granted in favor of petitioners since date of filing of petition - Gross delay and laces on the part of petitioners in filing petition and fact that in view of there being no injunction respondent has completed substantial part of construction this Court is not inclined to revoke any of permissions granted to respondent at this stage - Be that as it may no case is made out by petitioners for revocation of any such approval granted in favor of respondent as prayed – Petition dismissed
JUDGMENT :
R.D.Dhanuka, J.
By this PIL Writ Petition, the petitioners seek an order calling for the records of the approvals granted by the Town Planning Department, Collector (North), Panchayat of Morjim and Ministry of Environment, Forests & Climate Change (for short MOEF & CC) and have prayed for quashing and setting aside those orders. The petitioners have also prayed for writ of mandamus commanding the State of Goa and Goa Coastal Zone Management Authority (GCZMA) to take steps to demolish the construction of the project of the respondent no.7 and to restore the beach to its original condition. By consent of parties, this PIL Writ Petition was heard finally. Some of the relevant facts for the purpose of deciding this PIL Writ Petition are as under :-
2. The petitioner no.1 is an environmental NGO based in Goa and has filed various PIL Writ Petitions in public interest for enforcement of the provisions of environment, wildlife, forest, pollution and CRZ notifications. The petitioner no.2 has also filed various proceedings from time to time in public interest.
3. On 19th February 1991, respondent no.3 (MOEF & CC) issued notification S.O. 114(E) under the Environment (Protection) Act,1986 and the Environment (Protection) Rules,1986 inter alia declaring coastal stretches as Coastal Regulation Zone (for short "CRZ") and to regulate the activities within the CRZ areas (for short "1991 CRZ Notification").
4. Under the said 1991 CRZ Notification, development of activities in the coastal stretches within 500 meters from High Tide Line (HTL) on the landward side are regulated. Under the said notification, no new construction was permitted in CRZ-I areas within 500 meters from the HTL. In CRZ-III areas, the area up to 200 meters from HTL was earmarked as a "No Development Zone." Development of vacant plots between 200-500 meters of HTL for construction of hotels and beach resorts was permitted with prior approval of MOEF & CC, subject to certain terms and conditions.
5. It is the case of the petitioners that as per Coastal Regulation Zone Notification,2011 (for short "2011 CRZ Notification), all turtle nesting beaches are designated as CRZ-I. The notification also requires that management plans shall be prepared for those four designated turtle nesting beaches. South Goa also has two designated turtle nesting beaches at Galgibag and Agonda. Morjim beach is one of the two designated turtle nesting beaches in North Goa, the other being Mandrem beach, which is adjacent to Morjim. The two beaches together are approximately 5 km in length. It is the case of the petitioners that as per 2011 CRZ Notification, construction of hotels is not permitted in CRZ-I areas.
6. On 27th September 1996, pursuant to the aforesaid directions of the 1991 CRZ Notification, Goa Coastal Zone Management Plan (for short "CZMP") was prepared. On 27th September 1996, MOEF & CC approved the Goa CZMP, subject to certain terms and conditions set out therein.
7. It is the case of the respondent no.7 that in so far as the Pernem Taluka, where the subject property of the respondent no.7 is situated is concerned, it was specifically provided that sand dunes, mangroves and turtle nesting sites falling in Morjim village were classified as CRZ-I areas and the settlement areas were classified as CRZ-III areas. It is the case of the respondent no.7 that a portion of the subject property of respondent no.7 was classified as a "Settlement" area in the Regional Plan for Goa-2021 notified by the respondent no.5 ("The Town Planner") on 24th November 2010.
8. On 12th April 2001, MOEF & CC issued Notification No.S.O. 329 (E) wherein certain portions of 1991 CRZ Notification were amended. It is the case of the respondent no.7 that by the 2001 CRZ Notification, certain exceptions to the earlier prohibition on any new construction within 500 meters of HTL in CRZ-I areas were provided. The construction that came to be permitted in CRZ-I areas was (a) projects relating to Department of Atomic E
