1 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
APPEAL No. 3 OF 2013 (WZ)
CORAM:
Hon’ble Shri Justice V.R. Kingaonkar
(Judicial Member)
Hon’ble Dr. Ajay A. Deshpande
(Expert Member)
B E T W E E N:
SHRI. RUDRESH NAIK
Proprietor of Sudarshan Dry Docks
Having office at 2nd floor
Radha Bldg near Market
Panaji Goa. ........ Appellant
Versus
1) STATE OF GOA
Through its chief Secretary;
Having office at: Secretariat, Alto Porvorim, Goa.
2) GOA COASTAL ZONE MANAGEMENT AUTHORITY
[G.C.Z.M.A]
Through its Member Secretary;
Having office at: Department of Science Technology &
Environment,
Opp. Saligao seminary, P.O. Saligao,
Saligao Bardez Goa.
2 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
3) PRINCIPAL SECRETARY [ENVIRONMENT]
Through its Chairman for GCZMA;
Having office at: Secretariat, Alto Porvorim, Goa.
4) TOWN AND COUNTRY PLANNING DEPARTMENT
Through Chief Town Planner;
Having office at: 2nd floor, Dempo Towers,
Patto, Panaji Goa.
…..Respondents
Counsel for Applicant Mr. Yogesh Naik, Mr. V.R.Tamba Counsel for Respondent(s):
Ms.F.M. Mesquita for Respondent Nos.1 to 4.
Date: 24th February, 2014
J U D G M E N T
1. This Appeal is directed against order dated 13th
September, 2013, communicated to the Appellant by letter
bearing Ref.No.GCZMA/N/09-10/67/706, passed by the
Goa Coastal Zone Management Authority (For short
‘GCZMA’). By the impugned order, the GCZMA rejected
Application of the Applicant for the proposed slip-way/dry
dock at Survey No.41/2, of Vagurbem. The GCZMA held that
the development sought would be at the site adjoining to
coastal side of eco sensitive area, which may affect eco-
system. The GCZMA further directed the Appellant to restore
the area in question to its original position under the
technical supervision of the Town and Country Planning
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department, Forests Department and the Water Resource
Department, Government of Goa on the ground that the
development was carried out without prior
consent/permission.
FACTS
2. The Appellant above named is the proprietor of M/s
Sudarshan Dry Docks. He is also a partner of the private firm
called M/s Swastic Cruises. The partnership firm carries on
Tourism business, such as conducting boat cruises in the
rivers of Goa. The firm has engaged three vessels to carry
tourists as its normal business activity. In order to facilitate
this functioning, the Firm purchased a piece of land
measuring about 13,525 sq.m. to carry on its business
activity. The land so purchased is adjacent to the river and
this can be utilized for inspection, maintenance and repairs
of the vessels as well. To facilitate this activity and to carry
out other developmental activities, the Appellant seek to
construct a slipway. For this purpose, the Appellant had
applied in July, 2009 to the Goa Coastal Zone Management
Authority, seeking necessary permission to carry out such
activities. Since for a considerable time, no response had
been received from the said authority, the Appellant filed a
Writ Petition before the High Court of Bombay, being W.P(C)
No.165 of 2010. During pendency of the said Writ Petition a
show cause notice in July, 2010 was issued by the CGZMA
4 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
to the Appellant. This resulted in the disposal of the Writ
Petition, granting liberty to the petitioner to proceed in
accordance with the law. Subsequently, GCZMA passed an
order restraining the Appellant from going ahead with the
work in regard to the construction of the slipway. This
resulted in filing of another Writ Petition by the Appellant in
the same Court. The High Court allowed the Writ Petition and
set aside the order passed by the GCZMA primarily on the
ground that adequate opportunity was not granted to the
Appellant before passing the order. The said authority, after
providing an opportunity to the Appellant again passed an
order dated 11th April, 2012, directing the Appellant to make
good of the geological and ecological loss at the site by back
filling the cut portion in the disputed properties, restore the
area back to its original status and carry out the plantation
in the said area. The order dated 11th April, 2012 was a
detailed order and the operative part thereof reads as under:
“It was decided to issue directions for restoring the site back to its original status by appropriate back filling and carrying out plantation in the area, in addition to the directions decided upon during the GCZMA, meeting held on 02/04/2012.
44. Now, therefore, in exercise of the powers conferred by section 5 of the Environment (Protection Act, 1986 (Central Act 29 of 1986), delegated to the GCZMA; the GCZMA hereby directs Shri. Rudresh Naik to make good the geological and ecological loss at site, by back filling the cut portion and the cavity formed in the property bearing survey No.41/2 of Vagurbem Village, Ponda taluka and restore the area back to its original status, by appropriate back filling and carrying out plantation in the area, within thirty (30) days from the date of receipt of this order falling which the GCZMA will
5 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
issue directions to the appropriate Authority to carry out the directions and the cost towards the same shall be recovered from the violator.”
3. The order dated 11th April, 2012 was impugned by
the Appellant before the National Green Tribunal in Appeal
No.23/2011. The main challenge to the order impugned was
on the ground that the order suffers from non-consideration
of vital material and is based on errors of facts which are
apparent on the face of record. The Tribunal vide its order
dated 27th August, 2012 accepted the appeal and passed
certain directions. It will be appropriate to refer to the
relevant part of this order, which reads as under:
“12. Be that as it may, this Tribunal is conscious with regard to any danger caused to the environment by felling of trees and digging portions of sandy hill, thereby affecting the coastal eco-system. Felling indiscriminately trees and bushes also have great impact on the ecology. Though, the Appellant repudiates existing of any hill on the site, averments made in the paragraph 15 of the Memorandum of Appeal gives an impression that hills (sand) are existing on the spot.
13. After going through the records meticulously and hearing the counsel for the Appellant in the absence of any counter submissions, we feel that the order dated 11th April, 2012 passed by the Respondent No.2 (GCZMA) which is impugned in this appeal, cannot be sustained, more so because the respondents have failed to appear and controvert the allegations made in the memorandum of Appeal.
14. It appears that the dispute has a chequared career, inasmuch as it has travelled to the Hon’ble High Court twice and is prolonging for quite some time. Protection of environment being the paramount concern/duty of this Tribunal while setting aside the impugned order dated 11th April, 2012, we direct the petitioner to deposit a sum of Rs. 1 lakh without prejudice to his rights, and the contentions raised and submissions advanced
6 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
within a period of three weeks from the date of this order before Respondent No.2. The said amount shall be kept in Fixed Deposits by Respondent No.2 in a Nationalized Bank. On depositing the said amount, Respondent No.2 authorities shall afford an opportunity of hearing to the Appellant and decide the matter once again in accordance with law on its own merits without being influenced by any of the observations made in this judgment. It is needless be said that if the contentions of the Appellant are accepted, the amount of one lakh shall be refunded with interest. On the other hand, if the Appellant is found guilty, the amount shall be utilized for restoration of the Environment.
15. The entire exercise shall be completed within three weeks from depositing of the amount, as directed above. It is made clear that, if the amount of Rs. 1 lakh is not deposited within one month, it would be open for the respondents to implement the impugned order. With the aforesaid observations, this appeal is allowed with cost of Rs.3,000/- (Rupees Three Thousand).”
4. As is apparent from the above directions, the
authority had failed to appear before the Tribunal and
despite furnishing a copy of the said order, it did not comply
with the same completely although the appellant claimed
that he had deposited a sum of Rs. 1 lakh with the
Respondent, as directed in the said order. After waiting for a
reasonable time, the appellant again filed the Miscellaneous
Application bearing M.A.No.172/2012 praying in that
Application that appropriate action be initiated against the
Respondent-Authority in terms of Section 26 read with
Section 28 of the National Green Tribunal Act, 2010 for non-
compliance of the judgment dated 27th August, 2012. Upon
notice, the Respondent appeared and filed their reply raising
various contentions.
7 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
5. The Bench of this Tribunal vide its order dated 18th
December, 2012, after noticing that the Member-Secretary of
the Respondent did not comply with the order of the
Tribunal, observed that the authority did not act in a prudent
manner and rather exhibited their inaction to the rule of law.
However, the learned counsel appearing for the parties
agreed for disposal of the said application through a
consented order. The consented order, vide which the
application was disposed of is recorded as under:
"Learned Counsel appearing for both the parties agreed to
said proposition. Therefore, on the basis of the agreement
and consent arrived at, we direct as follows:-The Appellant
shall deposit a further sum of Rs.50,000/-with the
authorities within a period of Three(3) weeks hence. The
authorities shall close all the proceedings which have been
initiated against the Applicant in respect of the disputed
lands pending as on date. The directions issued by the
Member Secretary in his order dated 11th April, 2012 would
be deemed to have been fully complied with. The authorities
shall utilize the aforesaid sum of Rs.50,000/- to be deposited
and Rs.l lakh which has already been deposited by the
Applicant towards restoring the geological and ecological loss
caused to the area and also for afforestation purpose.
9. Learned Counsel for the Applicant submits that the
Applicant had filed an application seeking to accord
permission to carry out certain developments to his property.
If such a petition is pending, the Member Secretary or the
Authority, as the case may be, shall dispose it of on its merits,
in accordance with law within a period of Six(6) weeks from
the date of communication of this order, without being in any
way prejudiced by any of the observations made in the order
dated 11th April, 2012. With the aforesaid observations and
directions, this miscellaneous application stands disposed
of. Parties to bear their own cost."
8 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
6. The Applicant deposited the additional sum of Rs.50,000/- as
well in terms of the order of the Tribunal dated 18th December, 2012.
Subsequently, the GCZMA, through its Member Secretary, passed the
final order dated 29th January, 2013 while noticing that construction
of marine slipway for dry dock was otherwise a permissible activity, but
since the area was of hilly terrain and was likely to disturb the ecology,
rejected the proposal of the applicant. It will be useful to refer to the
entire order dated 29th January, 2013 at this stage, which reads as
follows:
"With reference to your letter No. NIL dated 10/07/2009
regarding the proposed construction of marine slipway for
Dry-dock of barge, boats, tugs, in Sy. No. 41/2 of Vagurbem
village, Ponda taluka by M/s. Sudarshan Dry Docks the
proposal was placed before the Authority in its 78th Meeting
of GCZMA held on 24/01/2013;
The GCZMA Members after perusing the documents,
and the directions of the Hon’ble National Green Tribunal
in Misc Application No. 172/2012 in Appeal No.23/2011
dated 18/12/2012; noted that the application of the Project
proponent should be disposed of on its merits. Further,
after going through the records the members observed that
grave ecological and geological damage has been caused by
the project proponent which on one hand is required to be
remediated;
The Members felt that although the present proposal
is for construction of marine slipway for dry dock which is
otherwise permissible activity; however, while going
through the proposal the Authority felt that allowing it
would cause irreparable damage to the already fragile hilly
terrain; in fact the Applicant has already caused extensive
damage by undertaking unauthorised hill cutting thereby
causing destruction to environment, granting permission
would be detrimental to the ecology. Hence, the Authority
has rejected this proposal;
You are hereby informed that the proposal for
proposed construction of marine slipway for Dry-dock of
9 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
barge, boats, tugs, in Sy. No. 41/2 of Vagurbem village,
Ponda taluka by M/s. Sudarshan Dry Docks is rejected."
7. The GCZMA through the Member Secretary passed final
order dated 29.1.2013, noticing that the construction of
marine slipway for dry docks was otherwise permissible
activity. However, the area was of hilly-terrain and hill
cutting was undertaken by the Appellant, which could
destruct ecology. The proposal for permission/consent
sought by the Appellant was therefore rejected. This order
was set aside by the Principal Bench, NGT, in Appeal No.20
of 2013, by five (5) Member Bench, Headed by Mr. Justice
Swatanter Kumar (Chairperson). The Hon’ble Principal Bench kept
open the question of area falling under the jurisdiction of Captain of
Ports, under the Indian Ports Act, 1908, as well as GCZMA, having no
jurisdiction over such area. The Hon’ble Principal Bench observed:
“ 20. As already noticed, it is neither evident from the order
nor from any records produced before the Tribunal that the finding returned in the impugned order that it was a hilly terrain was well reasoned. It appears to be a finding that has been recorded on the basis of certain conjectures and surmises. The relevant and material documents that had been produced by the appellant have been ignored. In other words, relevant considerations have been ignored while irrelevant and imaginary facts have been taken into consideration for arriving at the conclusion, which in our mind, cannot be sustained in view of the fundamental principle of Wednesbury. This clearly reflects the element of arbitrariness in the action of the respondent. The administrative action which is tainted with the element of
arbitrariness cannot be sustained in law. An administrative order must be free of arbitrariness and bias. We cannot help but take note of the legal proceedings that have repeatedly taken place in the present case. On all those occasions, the order passed by the respondent was set aside on one ground or the other. This Tribunal even directed the appellant to deposit Rs. 1.5 Lakhs in order to ensure remedying of the damage caused, if any, to the ecology or the environment around the site. This deposit of Rs. 1.5 Lakhs was made subject to the final order that may be passed by the authorities. The authorities have not even cared to touch upon that point in the impugned order. We are of the considered
10 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
view that the authorities have compelled the appellant to approach the court and the Tribunal time and again, that too, without valid and good reasons. It is expected of a public authority to act in accordance with the law, fairly and without inducing the element of arbitrariness and bias. There is a specific obligation upon such authorities to ensure that they do not generate avoidable litigation. Hence, fairness in their action is a pre-requisite to ensure an efficacious discharge of their statutory obligations. In our considered view, the authorities, in the facts and circumstances of the present case, have not acted with complete fairness and have compelled the appellant to approach the courts and the Tribunal repeatedly, without any specific fault being attributed to him. Thus, he is entitled to receive the costs of the present proceedings.”
8. The Principal Bench ultimately allowed the Appeal
No.20 of 2013 with costs of Rs.25,000/- payable by the
GCZMA to the Appellant and directed that the Appellant shall
be re-heard and thereafter the GCZMA shall pass final order
within four (4) weeks.
9. The GCZMA carried out site inspection on 6.9.2013.
The GCZMA gave report of site inspection to the Appellant
vide letter dated 11.9.2013. He was allegedly called upon to
remain before the GCZMA on 13.9.2013 and submit his
response to the Site Inspection Report. According to the
GCZMA, its meeting was convened on 13.9.2013, at the
scheduled time. The Appellant was called out but was found
absent, though a copy of Notice of Meeting was served on him
in person. The Appellant could not be contacted
telephonically inspite of attempt to do so. Some staff
members of the GCZMA, gave information to the Member
Secretary of the Authority that the Appellant had approached
the office of the GCZMA at Saligao around 1.00 p.m and had
submitted a letter dated 13.9.2013. The letter of the
11 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
Appellant was taken into account. The Members of GCZMA
also considered the fact that the GCZMA was directed to
decide the matter within stipulated period of three (3) weeks.
The GCZMA, therefore, proceeded Exparte against the
Appellant. The Captain of Ports, Govt. of Goa and the Chief
Town Planner, Govt. of Goa were notified for the meeting, in
order to obtain their assistance to reach appropriate
decision. The Captain of Ports informed the Members of
GCZMA that his office gave permission to the Appellant for
construction of slip-way in his own property, abutting the
river since barge repair activities are permissible activities.
The Chief Town Planner informed that his office was seized
of all the matters concerning hill-cutting allegedly done by
the Appellant. He also stated that FIR was filed against the
Appellant under Section 17-A of the Town and Country
Planning Act. The GCZMA came to conclusion that the
Appellant was making an attempt to construct a marine slip-
way inspite of stop work order dated 5.8.2011. Although he
had applied for setting up a Floating Pantoon J.T. to
undertake barge repairs alone. The river side adjoining
Survey No.41/2 of Vagurbem village of Ponda taluka, as per
Application dated 15.7.2010. The GCZMA came to
conclusion that the Appellant had not carried out plantation
at the ecologically damaged site, as directed to him. The
GCZMA held that conduct of the Appellant was deplorable.
According to the GCZMA, the proposed activity of the
12 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
Appellant falls within purview of CRZ Notification, 2011 and
that he has committed violations of the said Notification. The
contention of the Appellant is that the GCZMA had no
jurisdiction within the area between 200M and 100M of HTL,
because his property did not adjoin any sea-front and is
merely within zone of tidal influenced water body of river
Mondovi, was held as unacceptable. The GCZMA held that
the water front abutting the site of Notified port area falls
within the CRZ Notification and therefore activity sought to
be undertaken by the Appellant, is impermissible. The
GCZMA held that merely because activity can be permitted
under the CRZ Notification, 2011, the Appellant has no right
to claim such permission, irrespective of required
safeguarding parameters to be applied for coastal
environment and eco systems. The GCZMA held that the
Appellant has already degraded environment, caused
damage to ecology and as such, it was likely to set a wrong
precedent if his Application would be granted, inasmuch as
other Project Proponents situated in the similar situation will
seek to regularize their projects that are constructed by
degrading ecologically sensitive area. On these premises, the
Application of the Appellant was rejected by the GCZMA.
10. The GCZMA has supported its stand by filing affidavit
of Mr. Levinson J. Martins, its Member Secretary. His reply
affidavit shows that impugned order is passed after
considering all the relevant material and on equitable
13 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
principles. The Respondent No.4, also has filed reply affidavit
of Mr. S.T. Puttaraja. He denied truth into averments made
by the Appellant. He asserted that he was present at the
hearing on 13.9.2013, when the Meeting was held by the
GCZMA in the conference hall of the Chief Secretary’s office
at the Secretariat. He confirmed Minutes of the Meeting. His
reply affidavit shows that the Appellant had resorted to illegal
hill-cutting in the property bearing survey No.41/2 of village
Vagurbem. His reply affidavit further shows that the
Appellant attempted to mislead the Town and Country
Planning department by submitting incomplete plans of the
activities to be carried out. It was for such a purpose that the
NOC granted to him by the Ponda branch office for
construction of a pump house and repairs of compound wall
was revoked vide letter No.TPP/const/verm/vag/41/12/261
dated 17.4.2012. Hence, the Respondent No.4 sought
dismissal of the Application.
11. We have heard learned Counsel for the parties. We
have gone through the relevant record. We have considered
the earlier rounds of the litigation. In our opinion, the
following issues may be culled out for adjudication of the
present Appeal:
1. Whether it is duly established or can be reasonably
discerned from the available material that there was Hill in
existence flanking neighbouring site to the Plot No.41/2,
mentioned as 41 in the original Plan (TCP Department) of
14 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
Sewri Vagurbem village Panchayat, which was approved on
4.3.2011, and is situated on the side of river bank?
2. If Yes, whether the Appellant has cut the ‘ Hill’ upto 72.80
Mtrs in length above 20 M width and 3.4 M deep as alleged
by the GCZMA ?
3. Whether the Appellant sought permission for construction
of slip-way – Dry Dock with a water harvesting facility to
repair barges, wash boats and ships and remove bio-fouled
organisms from the surface of metal hulls in his
Application for the activity which falls within No
Development Zone (NDZ)?
12. Before we proceed to consider the Appeal on merits,
let it be noted that the Hon’ble Principal Bench allowed the
Appeal No.20 of 2013, on May 16, 2013, by passing following
order:
21. For the reasons afore-recorded and while setting aside
the order dated 29th January, 2013, we hereby direct the GCZMA to consider all the issues again, in accordance with
law, and expeditiously. The question of the area falling under the jurisdiction of the Captain of Ports under the Indian Ports Act, 1908 as well as GCZMA having no
jurisdiction was raised before the said Authority and has also been raised before us. We have intentionally left the said question open to be answered by the said Authority
when it deals with the matter in furtherance to this order. 22. The appellant may file additional documents, if any,
within two weeks from the date of pronouncement of this order. The GCZMA shall, upon providing a hearing to the appellant as well as informing him of any other document
that the Authority wishes to rely upon, pass the final order within four weeks thereafter. The entire proceedings must
culminate into a final order within a period of six weeks and none of the parties will be entitled to any extension of time thereafter. In the facts of the present case, we allow this
appeal with costs of Rs.25,000/-as payable by Respondent No.1, GCZMA to the appellant.
(Emphasis Supplied)
15 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
13. The above order passed by the Hon’ble
Principal Bench of the National Green Tribunal, was
challenged before the Hon’ble Supreme Court by the GCZMA,
by filing Civil Appeal No.6815 of 2013. The Civil Appeal was
dismissed. However, the Hon’ble Supreme Court deleted
directions to pay costs of Rs.25,000/-, imposed by the NGT
and granted another three (3) weeks time to comply with the
orders and directions of the NGT. Needless to say, the Hon’ble
Supreme Court extended time for compliance of the
directions of the NGT to finally decide the Application of the
Appellant as directed by the Hon’ble Principal Bench of the
NGT, while allowing the Appeal No.20 of 2013, in its order
dated May 16, 2013. The impugned order is one which
followed thereafter.
14. As can be gathered from the record, the litigation
has a checkered history. The GCZMA had rejected the
Application of the Appellant on previous occasions. It will be
useful to refer the order dated 29.1.2013, at this stage. The
said order is reproduced in the earlier paras while describing
the facts. It is pertinent to note that the Application was
rejected for following reasons:
(a) The Project Proponent (Appellant) had caused grave
ecological and geological damage, which required to be
remediated;
(b) The proposal for construction of marine slip-way for dry
dock was otherwise permissible activity; however, if it is
16 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
allowed, then the same would cause irreparable damage
to already fragile hilly-terrain,
(c) The Appellant was undertaking unathorised hill-cutting
thereby causing obstruction to environment and as such,
granting permission to the construction of marine slip-
way for dry-dock would be detrimental to the ecology.
15. These were three précise reasons given by the GCZMA,
while rejecting the Application submitted by the Appellant.
Obviously, now the GCZMA cannot be permitted to travel
beyond the area of reasons ascribed in the aforesaid order.
16. We have noticed from the impugned order that the
GCZMA has recorded elaborate order on basis of inspection
report drawn by a Committee in which the Appellant is said
to have attended such work. According to the GCZMA, the
inspection of the site was carried on 6.9.2013, in presence of
the Appellant, his brother Advocate- Yogesh Naik, Engineer
Vinson Duodus of the GSPCB and Dr. Savita Keskar, one of
the Member of GCZMA. A copy of the report (P-111) shows
the rains (Monsoon) had been going on and therefore it was
not possible to estimate the salinity of the water. It is
important to note that the site in question is facing towards
river and has got setback of 2-3M. It is stated that landward
site is highly elevated with “hard letrite”, which is exposed
where terrain has been cut. It is further stated that the site
is landward side of river i.e. river Mondovi tributary, which
is under tidal influence. In absence of ascertaining presence
of salinity in the river water adjoining the proposed site, it is
17 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
difficult to say that the same falls within CRZ-III, area. The
description given in the inspection report shows that the
Member of the GCZMA was cautious to describe the area
without giving any particular opinion as to whether it is hill
or not. It has been observed : “presently this letrite slope or
hill ” has been cut upto 70-80M in length, about 30M width
and 3-4M deep”. Aforementioned description goes to show
that no definite opinion could be given as to whether it was
simply a letrite slope or ‘hill’ that had been cut upto 70-80M
in length and about 20M wide. In other words, pre-existence
of the hill at the site in question, is not scientifically
determined on basis of any tangible material.
17. We may take note of Dictionary meaning of the
word “Hill”. The Oxford English Dictionary gives meaning of
word ‘Hill’ as a surrounding terrain, a land form that extends
above 2000 feet (610m). Ordinarily ‘Hill’ is a conspicuous
and often rounded natural elevation of the earth’s surface,
smaller than a mountain. It is small mound of earth raised
about a cultured plant or a cluster of such plants. Hills may
be created by faults like earthquakes. Volcanoes are also
another way that hills are formed. Hills may be formed by a
built up of rock debris or sand deposited by glaciers and
wind. There are certain types of Hills which are known by
distinct names viz:
(1) Drumlin – an elongated whale-shaped hill
formed by glacial action.
18 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
(2) Butte – an isolated hill with steep sides and a
small flat top, formed by weathering.
(3) Tor – a rock formation found on a hilltop; also
used to refer to the hill, especially in South West
England.
(4) Puy – used especially in the Auvergne, France,
to describe a conical volcanic hill.
(5) Pingo – a mound of earth-covered ice found in
the Arctic and Antarctica.
18. Though it has been inter-alia contended by the
GCZMA, as well as the Town and Country Planning
department (TCPD) that the Appellant indulged in hill-
cutting activity in land survey No.41, yet the pre existence of
such hill is not duly corroborated by any tangible material.
The land survey No.41/2, in village Vegurbem, is shown as
‘Orchard’ in the revenue record. The entries in the revenue
record do not show existence of any hill or even hilly-terrain
or hillock in that land. Needless to say, the Government
record itself falls short to indicate existence of any hill in land
survey No.41/2. Inspite of such difficulties and odds, we
desired to ascertain the truth and therefore we passed orders
dated December 11, 2013 and January 15,2014. It is not
necessary to re-produce both the orders entirely. Suffice it to
say that by order dated December 11, 2013, we directed the
GCZMA to produce authentic survey map of the area or
scientific report based upon examination of Google Imaginary
19 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
Map and the photographs, which were allegedly taken as
shown in the Notice dated 2.9.2013, issued to the Appellant.
We also noted in the further order dated January 15,2014,
that proper authenticate map of the area, or scientific report
based on Google Imaginary map, was not provided by the
GCZMA, although the statement in this context was made
before the Tribunal. In fact, there was no impediment in
conducting scientific study to locate whether there was a hill
at the site in question and if it was so, then what could be
side thereof. There was also no impediment in conducting
Google Imaginary mapping with advanced technology of
super imposing the present map with earlier record, which
could give fair idea of the existence of alleged hill at the site
in question. The GCZMA could have sought opinion from the
Expert Geologist, that exercise has not been done. There is
nothing on record to show that the observations of the
GCZMA are based on any opinion of geological expertise,
scientific study and proper assessment done on basis of
geological survey. What appears from the record is that,
because there was cutting of stone at the place of site or
where the J.T was proposed, an inference is drawn by the
GCZMA that the Appellant had cut the hill. The GCZMA did
not conduct oral inquiry. Nor, the scientific exercise was done
inspite of specific directions of this Tribunal. The reasons are
best known to the Authority. Under the circumstances, we
have no hesitation in holding that the GCZMA failed to
20 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
establish the allegation that the Appellant had undertaken
hill-cutting at the site and caused environmental damage.
19. This takes us to another limb of argument
advanced on behalf of the GCZMA. Learned Counsel for the
GCZMA argued that activity sought to be undertaken by the
Appellant is impermissible in view of the fact that it falls
within CRZ area or NDZ area. We have already pointed out
from the earlier order passed by the GCZMA on 14.1.2013,
which indicate that the construction of marine slip-way for
dry dock is ‘otherwise permissible activity’ , however, was not
being allowed to the Appellant, because, it would cause
irreparable loss to the already fragile hilly-terrain and already
the Appellant has caused hill-cutting. At the relevant time,
when the rejection of Application was done on 24.1.2013,
only reason ascribed was of damage caused due to hill-
cutting and probable damage or threat to the environment on
account of further hill-cutting activity of the Appellant. No
other reason was ascribed while rejecting the Application.
Obviously, the reason that the activity falls within NDZ or
prohibitory category under the CRZ Notification, is rather
after thought or additional reason given in the impugned
order.
20. We have already reproduced paragraph 22 of the
final order passed by the Hon’ble Principal Bench on May 16,
2013 in Appeal No.20 of 2013. The GCZMA was directed
under the said order as below :
21 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
“The GCZMA shall, upon providing hearing to the
Appellant as well as informing him of any other
document that the Authority wishes to rely upon, pass
final order within four (4) weeks thereafter”
The direction enumerated herein above, in clear
terms, go to show that the GCZMA was required to inform
the Appellant, if any other document was to be relied upon
prior to giving him opportunity of hearing. We are dismayed
to see that the GCZMA did not inform the Appellant that any
particular document was additional being relied upon in
support of the stand taken by it that there existed a hill at
the site in question which was cut by him. The GCZMA not
only failed to furnish any such additional document to him
inspite of clear directions of the Hon’ble Principal Bench in
the order dated May 16, 2013 but also failed to place on
record any authentic document inspite further interim orders
passed by this Tribunal in order to bring about the true facts
in this context.
21. We have also noticed that the GCZMA has not
addressed the question regarding jurisdiction of the Captain
of Ports under the Indian Ports Act 1908. The Appellant had,
infact, submitted application to the GCZMA and surrendered
to the jurisdiction of the GCZMA, and therefore, he cannot
now be allowed to turn “volte face” and say that the GCZMA
has no jurisdiction to decide the issue about permissibility or
impermissibility of the construction of slip-way-dry-dock
22 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
activity at the site in question. It does not stand to reason
that now such question is open and should be adjudicated
upon when the Appellant himself meekly surrendered to the
jurisdiction of the GCZMA. Consequently, the argument of
the learned Counsel and the Appellant that the GCZMA has
no jurisdiction in view of the exception enumerated in the
CRZ Notification is unacceptable.
22. The material on record clearly shows that the GCZMA
changed the venue of the hearing at the last moment without
giving proper intimation to the Appellant. The Appellant was
deprived of the opportunity to ventilate his grievances. In
other words, there was no “fair opportunity of hearing” given
to the Appellant inspite of 2-3 rounds of earlier litigation and
though there was clear direction to allow him opportunity of
being heard. The only reason given by the GCZMA is that
there was time bound programme because of three (3) weeks
time fixed by the final order of the National Green Tribunal
and the Apex Court. If this was the genuine reason, the
GCZMA could have taken up the hearing at an early date or
could have sought extension of time from the National Green
Tribunal. The impugned decision was taken, infact, almost
immediately after the meeting was over. We are of the
opinion that the hearing given to the Appellant was unfair
and the decision making process was rather backed up with
certain undue haste as well as official prejudice against the
Appellant. May be due to his arrogant or litigative attitude
23 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
or may be on account of his skillful screening of the evidence
of hill-cutting which the GCZMA believed to be in existence
at one point of time.
23. At this juncture, let it be noted that Mr. Levinson
Martin, of GCZMA has filed additional affidavit after the
matter was reserved for Judgment. Alongwith his affidavit,
he has placed on record a report of Town and Country
Planning Department as well as certain other documents.
We may not have ordinarily looked into such documents
when they are filed after the matter is reserved for Judgment.
The provisions of Code of Civil Procedure do not allow such
kind of addition of documents once the matter is reserved for
Orders/Judgments. Still, however, in view of flexibility
available under Section 19 of the NGT Act, 2010, we deem it
proper to consider these documents. For, the procedural law
under the Civil Procedure Code, is not applicable to the
proceedings before this Tribunal in stricto sensu. Perusal of
the additional affidavit of Mr. Levinson Martin, go to show
that Town and Country Planning Department, prepared a
report dated February 10, 2014, after conducting site
inspection. The Chief Town Planner, by his communication
dated February 11, 2014 (Annexture-I), gave copy of the said
report regarding “Slop Analysis of Property bearing Survey
No.41/2 of Vagehurme Village”to the Principal Secretary of
GCZMA (Mr. Levinson Martins). This communication reveals
24 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
that the Chief Town Planner, concluded ultimately that the
land in question is a “hilly land/sloppy land”.
24. We may categorically mention here that copy of
this communication and the report was never given to the
Appellant before the date of hearing, in accordance with the
directions of NGT, which are enumerated in the earlier order
dated May 16, 2013. It is obvious that such kind of report is
subsequent exercise undertaken by the Chief Town Planner.
Even so, it would be useful to refer third paragraph of the
report, which is as follows :
“A discussion was held by the Chief Town
Planner with the Member Secretary of the
GCZMA/GSPCB on February 10, 2014 around 12
p.m. in the office of GSPCB. During the said
discussion, the Member Secretary of the GCZMA
has given a photo copy of unsigned contour plan
of slip-way for the proposed shipyard at plot
Survey No.41, of Vegurben Village, Ponds taluka.”
25. From the above noting in the report, two things are
explicitly clear. First, an unsigned photo copy of contour
plan of slip-way of the proposed shipyard was furnished by
Mr. Levinson Martins to the Chief Town Planner. Secondly,
there was no exercise to locate existence of hill with the help
of Advance techniques like Google Imaginary Mapping. It is
most important to note that mere photo copy is not a reliable
document even for the purpose of comparison to be used as
authenticated contour plan. Moreover, in the final analysis,
the report shows the result of the exercise was that the
25 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
finding itself was couched in slippery language such as
“hence, the land in question is a hilly land/sloppy land”.
Needless to say, this report also does not conclusively show
that there existed a hill at the site of the proposed slip-way
for the shipyard at plot in survey No.41. What it shows is
that part of the land is a hilly land or sloppy land. There is
remarkable difference between the concept of existence of “a
hill” and land being “a sloppy land”. There may be a slope on
the land, but the mere slope by itself will not make a land as
“hill”. We are of the opinion, therefore, that additional
affidavit and the documents placed on record also do not
furnish any tangible material to establish the allegation that
there existed a hill at the proposed site of slip-way-dry dock-
shipyard to be constructed in survey No.41/2.
26. Be that may as it is, from surface of the record, it
is clear that the reasoning of the GCZMA is incorrect and
improper, particularly when the directions of the National
Green Tribunal in the final order dated May 16, 2013 (Appeal
No.20 of 2013) are taken into account. It need not be
reiterated that the GCZMA failed to adduce any tangible
evidence regarding pre-existence of the hill and cutting
thereof by the Appellant. The GCZMA could not have added
further ground while rejecting the Application when
additional reasons were not ascribed in the previous order
when the Application of the Appellant was rejected.
26 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
27. Though the GCZMA, rightly or wrongly did not
issue the authorization/permission for construction of the
slip way for dry-dock yard and rejected his Application. Yet,
the Appellant carried out certain work at the site. He failed
to complete the plantation work which is abundantly clear
from the site inspection report. He created a space for the
draft to allow egress and ingress of boats/barges at the site
where the repairs and other activities are supposed to be
carried out. He, infact, has done spade-work in anticipation
of the clearance by the GCZMA. This attitude of the
Appellant is reprehensible. Equally reprehensible is the
attitude of the GCZMA which, in effect, indicates intention to
frustrate and deny opportunity of hearing to the Appellant
inspite of directions given by the Hon’ble Principal Bench of
the National Green Tribunal by order dated May 16, 2013 in
Appeal No.20/2013. The only difference, however, is that the
Appellant by his conduct has caused loss to the environment
even before the Application filed by him was allowed by the
Lawful authority (GCZMA). It is imperative, therefore, that
he shall be called upon to pay compensation for
environmental damages of Rs.5 lacs which amount is
required to be utilized for afforestation and restitution of the
environment.
28. In view of the foregoing discussion, we are inclined
to allow the Appeal on following conditions :
27 (J) Appeal. No.3 of 2013 N.G.T.( W.Z.)
(i) The Appellant shall deposit additional amount of
Rs.3.5 lacs besides the amount of Rs.1.5 lacs which was
directed to be deposited earlier in the proceedings of the
previous Appeals. The amounts be credited to the
account of Environment Ministry of the Government of
Goa to meet expenses of remedial measures for
environmental purposes and for restoration of
environment.
(ii) The Appellant shall further deposit an amount of
Rs.5 lacs with the Environment Department, State of
Goa being the compensation for environmental
damages.
(iii) The above amounts shall be deposited within
period of four (4) weeks in the office of Collector, South
Goa, Marmugao and receipts of such payment shall be
forwarded to the GCZMA by registered post alongwith a
letter communication informing about the compliances
done.
(iv) In case of the compliances of the above conditions,
the GCZMA shall grant Application filed by the
Appellant and issue necessary
authorization/permission/consent in favour of the
Appellant and if so required by putting regular
conditions as may be permissible under the Law within
a period of two (2) weeks, thereafter.
The Appeal is accordingly disposed of. No costs.
……….…………….………………., JM
(Justice V. R. Kingaonkar)
..…...….…….……………………., EM (Dr. Ajay.A. Deshpande)