BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) …awsassets.wwfindia.org/downloads/rudresh_naik_vs_state_of_goa.pdf · Rudresh Naik to make good the geological and ecological loss

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.


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


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


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


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


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.


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."


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


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


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


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


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


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


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)


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


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


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.


(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


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


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 :


“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


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


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


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


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.


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 :


(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)

Documents

BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) …awsassets.wwfindia.org/downloads/rudresh_naik_vs_state_of_goa.pdf · Rudresh Naik to make good the geological and ecological loss