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PETITIONER: GOA FOUNDATION, GOA

       Vs.

RESPONDENT: DIKSHA HOLDINGS PVT.LTD & ORS.

DATE OF JUDGMENT:       10/11/2000

BENCH: U.C.Banerjee

JUDGMENT:

BANERJEE, J. L.....I.........T.......T.......T.......T.......T.......T..J

     I  have  had the privilege of going through the  lucid judgment  of  my  learned Brother Pattanaik, J.   and  while recording my concurrence therewith, however, I wish to add a few  pages as my own reasonings.  Environmental  degradation said  to by reason of disturbance of existing sand dunes  on the sea front of Goa is the focal point for consideration in this  Appeal  - the High Court answered it in the  negative. Goa,  a  popular tourist resort has recently been  facing  a tremendous  influx  of  people  as  any  other  urban  area. Tourism  has turned out to be the basic economic  benefactor to  the State and correspondingly attracts the  multifarious attributes  of  the same.  Tourism is an industry  and  this growth  of  tourism  has attracted all the  other  ancillary agencies  including Hoteliers to start commercial operations and business activities.  Panaji being the capital city has, as a matter of fact, hundreds of such hotels  big and small and  it  is in pursuit of this trade and commercial  venture that  thenceforth  uninhabited  Beaches of the  State  being converted  into  commercial  arena  by  way  of  hotels  and beach-resorts    of  course  to the benefit  of  the  State exchequer  but obviously commencement of a business activity on  a  Virgin Beach could lead to environmental  degradation and resultantly various non- governmental organisations have come up to protest against such exploitation of the natures bounty.   The present Petition before this Court is one such instance.   To put the record straight however, be it  noted that  though  originally the writ petition was moved  before the  Goa  Bench  of the Bombay High Court  but  subsequently matter  was  transferred  to  Bombay and was  heard  by  the Division  Bench  which  negated the  plea  of  environmental degradation  as noticed above and hence the Appeal.  In  the present  Public  Interest  Litigation, the  main  thrust  of challenge   pertains   to   maintenance   of   environmental equilibrium  and  bio-diversity in Nagorcem Beach,  Palolem, Taluka   Cancona, Goa being a coastal area in the State  of Goa.   The  factual  backdrop   depicts  that  M/s.   Diksha Holdings Pvt.  Ltd., (the Respondent No.1 herein) applied to Town  &  Country Planning Department for permission  to  the construction of a Beach resort in January, 1996 along with a contour  and site plan of the area.  The records depict that Cancona  Municipal  Council  upon due consideration  of  the clearance  report  from  the  Ministry  of  Environment  and

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Forests  granted sanction for construction of Hotel on  16th January,  1998  which however, prompted the foundation  (the Appellant   herein)  to  approach   the  Court  inter   alia contending that the Ministry of Environment and Forests, did not,  as  a matter of fact, consider all  relevant  material particulars   before   issuance  of    the   clearance   and consequently the grant of sanction also stands vitiated.  On the  second count the Appellant contended that in any  event the  area being in the Coastal Regulation Zone (CRZ) and the construction  of the Hotel does not come within the ambit of permissible  activities  in terms of the Notification  under Section  3(1) and 3(2)(v) of the Environment Protection Act, 1986,  there appears to be a serious irregularity  resulting in  the  grant  of an illegal sanction for  setting  up  the project,  more  so by reason of the existence of sand  dunes and categorisation of the area as CRZ-I, which prohibits any construction within 500 metres of the High Tide Line.  While it  is  true that nature will not tolerate after  a  certain degree  of  its  destruction  and  it  will  have  its  toll definitely  though  may  not  be felt in  presenti  and  the present  day  society  has  a  responsibility  towards   the posterity  so  as  to allow normal breathing and  living  in cleaner  environment  but that does not by itself  mean  and imply stoppage of all projects.  In my Judgment in regard to East  Calcutta Wetlands (People United for Better Living  in Calcutta  -  Public and another v.  State of West  Bengal  : AIR  1993  Calcutta  215) I did speak of a  balance  between development  and  ecology  and   since  my  learned  Brother Pattanaik,  J.  has already dealt with the issue, I  refrain myself  from  dealing  with the matter in  extenso  in  that regard excepting however, recording my concurrence therewith and state that harmonization of the two namely, the issue of ecology and developmental project cannot but be termed to be the  order  of  the day and the need of  the  hour.   Before proceeding  with  the matter further, it be noted  that  the schedule  attached to the local Town & Country Planning  Act depict  that  the  area in question was  designated  in  the original  plan  as  an orchard and as early as in  1989  the Settlement  recorded  a  proposal to convert the  plot  from orchard  to  Settlement (Beach Resort).  This  proposal  was finally  accepted  and  approved in early  April,  1990  and accordingly  the  record of Rights recorded  the  conversion from   orchard  to  settlement  as  its  land-use.    India, admittedly,  has  around 6000 kms long coastal line  against which  Goa  having 110 kms consisting largely of long  sandy beaches.   The beauty coupled with infrastructural  facility has  made  Goa  renowned the world over.  Tourism  as  noted above is the main contributing factor for Goas economy.  We have  on  record  in the matter in issue  the  Notifications issued  by the Central Government in regard to regulation of Coastal  Zones  in  the  country   popularly  known  as  CRZ Notifications  which has, in fact, regulate the user of  the beach  area of the country.  A brief reference to the  norms for regulation of activities in different categories of CRZs would  be  convenient  at  this stage:   CRZ-I  :   No  new construction  shall  be permitted within 500 metres  of  the High  Tide Line.  No construction activity, except as listed under  2(xii),  will be permitted between the Low Tide  Line and the High Tide Line;

     [provided  that construction of dispensaries, schools, public  rain  shelters, community toilets,  bridges,  roads, jetties, water supply, drainage, sewerage which are required for  traditional  inhabitants of the  Sunderbans  Bio-sphere reserve  area,  West Bengal, may be permitted, on a case  to

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case  basis,  by  an  authority   designated  by  the  State Government].

     CRZ-II    :      (i)      .      (ii) .  (iii) .  CRZ-III :  (i) The  area upto 200 metres from the HTL is to be earmarked as No  Development Zone.  [No construction shall be permitted within  this zone except for repairs of existing  authorised structures  not exceeding existing FSI, existing plinth area and  existing density, and for permissible activities  under the  notification  including facilities essential  for  such activities.    An   authority  designated   by   the   State Government/Union   Territory  Administration    may   permit construction  of  facilities for water supply, drainage  and sewerage  for requirements of local inhabitants].   However, the  following  uses  may  be permissible  in  this  zone agriculture,  horticulture,  gardens, pastures, parks,  play fields, forestry and salt manufacture from sea water

     (ii)  Development of vacant plots between 200 and 50-0 metres of High Tide Line in designated areas of CRZ-III with prior  approval  of Environment and Forests (MEF)  permitted for   construction  of  hotels/visitors   subject   to   the conditions as stipulated in the guidelines at Annexure-II.

     (iii)

     (iv)

     In  support  of  the appeal, Dr.   Calude  Alvares,  a well-known    Environmentalist   of     the   country    and appearing-in-person   contended  that  by   reason  of   the restrictions in terms of the CRZ Notification for setting up or  expansion of industries and which lies about 500  meters from  the  High Tide Line, question of construction  of  any building  (whether a hotel or beach resort or even any other building)  cannot  be considered and the act or acts of  the concerned  authority  in  the  matter  of  approval  to  the proposed  construction is the resultant effect of total non- application of mind.  CRZ Category-I does not permit any new construction   except,   however,  as   mentioned   in   the Notification  itself.   It is in this perspective  that  Dr. Alvares  however  contended  that  the matter  ought  to  be remitted back to the concerned authority for reconsideration of  the same and upon examination of proper materials in the matter  in issue.  An in-depth analysis of the submission of Dr.  Alvares would indicate that according to him demolition of  sand  dunes may create an environmental degradation  and reliance  was placed on the Report of the National Institute of  Oceanography.  Before, however, dealing with the Report, a cursory glance on to the nature of sand and sand dunes and impact  thereof  may be noticed.  Sand in  common  English parlance  cannot  but  mean and  include  minute  fragments resulting  from  wearing  down  of  siliceous  rocks   found covering  parts of the sea-shore, river-beds, deserts (vide Concise  Oxford Dictionary).  Sand is a product of  abrasion or break down of older parent or source rocks.  Mcgraw- Hill Encyclopedia  of Science and Technology (6th Edn.) describes the  characteristics  of  sand  as   below:   Sand  can  be described in terms of both texture and composition.  Textual attributes include size, size sorting, angularity, shape and surface  texture  of the grains.  Grain size refers  to  the mean  diameter  of the grains and is usually  determined  by sieving.   Grain  size is directly related to the energy  of velocity  of  the agent which transports the grains  and  is

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inversely  related to the total distance of transport  prior to  deposition.   Size sorting is a measure of the range  in grain  sizes within a given deposit of sand.  Poorly  sorted sands  contain  grains  of many different sizes  within  the sand-size  range;  well-sorted sand have only a narrow range of  particle  diameters.   The best-sorted sands  are  those transported  by agents of low viscosity (for examine,  wind) and deposited very slowly.

     Sand  is  found virtually anywhere where  fluids  with high  kinetic  energy transport and deposit  sediment.   The largest  modern-day  accumulations of sand are in  the  vast inland deserts and on beaches.  In both environments much of the  sand  has been reorganized by wind into  dunes.   Other significant  concentrations  of sand are found  in  alluvial fans which form at the base of mountains, on bars in rivers, and  in  a  variety of shoreline settings  including  spits, barrier  islands,  and tidal flats, and in parts of  deltas. Until  about the 1950s sand was not thought to be present in the   oceans  very  far  beyond   the  inner  parts  of  the continental  shelves.  However, it has been shown that  sand can  be  transported  even  beyond  the  shelves  into  very deep-water  settings by density currents which commonly move down submarine canyons.

     Mcgraw-Hill  Encyclopedia  of Science  and  Technology further  notes  its  use in the manner below:  Sand  is  an important economic resource.  Silica (SiO²) from quartz sand is the chief ingredient for glass.  Sand is also employed as a  filler  in  concrete  and plaster, as  an  abrasive  (for example,  on  sandpaper),  and as a  fertilizer  (glauconite sand).

     Needless  to record that sand is normally  transported away  from  its site of origin by wind and water  before  it being deposited at a particular place.

     The  New Encyclopaedia Britannica (Volume 10) has this to note for sand dune:  Sand dune, hill, mound, or ridge of loose material (not always sand) formed by wind action.  The existence  of  dunes is a direct function of the ability  of wind  to  transport  unconsolidated   material.   They   are commonly associated with desert regions where windblown sand occupies  extensive  areas.   It  has  been  estimated,  for example, that sand deposits in the Sahara Desert cover about 2,700,000 sq mi (7,000,000 sq km).  In the recent geological past  desert  areas  may have been even  larger  during  dry periods  in the Pleistocene glaciation.  At that time  great areas of loess (wind-blown silt) were deposited across North America,  Europe, and Asia.  Dunes are also associated  with coasts where beach sands may be reworked by the wind.

     The  geomorphic  characteristics of sand dunes can  be best  appreciated  upon  assessment of two  basic  elements, namely,  sand and the wind and it is an interaction of these two  elements  which  bring  about the sand  dunes.   It  is interesting  to note that sand dunes are invariably built by particles  of various forms and shapes of sand, sized up  by waves  and  carried by the wind.  Clay particles usually  do not  come  along with sand particles.  The growth  of  sand, however is totally dependent upon the direction and velocity of  the wind.  By reason wherefor sand dune which cannot  be

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attributed  to  be ancient has been noticed to have  another redeeming  feature of being a movable along with time,  tide and  the wind.  In the Coastal Zone Management Plan for  Goa as  issued by the Goa State Committee on Coastal Environment (Town  &  Country Planning Department:  Government of  Goa), Government of Goa June 1996, Dr.  Wilfred Menezes Mesquita, the  Environment Minister in no uncertain terms stated  that Goa  being  on  the  verge of a quantum jump  in  all  round development  and  thus having a tremendous pressure  on  its natural  resources  as  also   environment.   The   Minister however,  went  on  to state that though Goa shall  have  to achieve  economic  prosperity  but  at  the  same  time  the Government  cannot afford to damage the ecology and it  will be  the  endeavour  of  the Government to  achieve  both  by maintaining  a proper balance.  This is exactly how  Brother Pattanaik,  J.   in  his judgment dealt with  the  issue  as regards  the balance between development and ecology and  as such  further  dilation  is  not   required  in  the  matter excepting  however  to note that the Government of  Goa  was not, in fact, completely oblivious of the environment of the area.  The Minister of Environment himself makes a note that a  proper  balance shall have to be maintained  between  the ecology  and  development.   Sand   dunes,  admittedly,   if otherwise ancient in nature as noticed above, sometimes have cononut  tree  grown  on the dunes by  reason  wherefor  the dunes, as a matter of fact, act as a second line of defence against  the  fury  of any cyclonic  onslaught  and  before delving  into the merits of the matter, another  significant feature  which ought to be noticed at this juncture is  that the  width  of the beaches in Goa is not the same all  along the  coastal  line and resuntaltly Coastal  Management  Plan cannot  also be uniform neither can it be put on a formula each beach is singularly singular and has to be developed or protected  in a specific manner applicable to the  concerned beach  only.   ISSUES RAISED IN THE MATTER:   The  criticism levelled against the judgment under Appeal as noticed above, is  the  factum of non-consideration of  relevant  materials produced  during the course of hearing as also the documents enclosed with pleadings of the parties.  Strong reliance has been  placed  on  the Report of the  National  Institute  of Oceanography  which admittedly focussed the irreparable loss of  environmental  climate in the event of sanction for  the proposed construction.  It is at this juncture however would be  significant to note two several factors detailed  herein concerning  the above Report:  firstly, the Report has  been obtained during the pendency of the Appeal before this Court and  secondly Report has been signed by four several experts of  the  Institute  of  which two were the  members  of  the Coastal  Zone Management Committee of the Government of  Goa which  has granted the sanction of the proposed construction upon  due  certification with respective signatures.   On  a further  factual reference at this juncture it appears  that the  application  for  grant of sanction  for  the  proposed construction was scrutinised by statutory agencies including the  State  Environment Department as also the  Ministry  of Environment  and  Natural  Resources of  the  Government  of India.   It is worth adverting that the Government of India, as  a  matter of fact, examined the issue upon  obtaining  a special  Report  of  two  very  eminent  scientists  of  the country.   The  Report,  be  it noted, as  obtained  by  the Government of India has been on actual specific verification of  the site in question and it is on the clearance from the Central  Government that the State Government in its bid  to have  a balance for development and ecology also  considered the  issue  and  upon due deliberation thereof  granted  the

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sanction.   The two scientists of the National Institute  of Oceanography   were   members  of    the   Committee   which investigated the ecological aspect of the issue and on being satisfied and there being no affectation of the environment, the  Committee  recommended  the   same  upon  recording  of signature as a mark of approval of all members including the two  who  later give a report otherwise.  I do not  wish  to make  any further comment thereon as regards the  subsequent report  excepting  however,  recording  that  it  is  rather unfortunate  that such a state of affairs did take place and the  happenings  have involved two very noted scientists  of Western  India  as  also of the country.  The  other  aspect which  needs to be gone into is the factum of affectation of sand  dunes  and its environmental impact.  Admittedly,  the dunes  provide a beauty to the area in question and natures bounty stands very well exposed in the dunes but sand, it is to  be  noted is also used for commercial purposes, but  the factum  of the same being capable of a commercial item,  has not  been delved into either of the parties in the course of the  submissions.  Admittedly, dune sand is also used by the foundry industry though, of course, Ford Motor Co.  have now started  using  non-dune  sand for  foundry  operations  for automobile  engine  castings:   non   availability  of   any evidence   of  alteration  or   physical,   biological   and geological  characteristics  of sand dunes ought also to  be noticed  and  taken  into   consideration.   The  factum  of affectation  of micro climate downwind of the sand dune area and  the  resultant  effect  therefor   has  also  not  been highlighted  so as to warrant any adverse finding pertaining to  the  project.   There is not even existing  an  iota  of evidence  as regards the resultant damage on the  vegetation top  soil  or  topographic  features  neither  any  evidence pertaining to the elimination of existing flora and fauna of the  area  in question, no details are available as  regards the  plants  species which would otherwise be threatened  in the  event of there being such a project.  We  unfortunately also  do  not also have any local environment  audit  report excepting  however  the Report of the National Institute  of Oceanography and we reserve our doubts as to the credence to be  attributed to the report and as detailed hereinbefore in this  judgment.  The affectation admittedly cannot  possibly be  a  mere  fanciful  idea but there  ought  to  be  cogent materials  in  support therefor.  Unfortunately, we  do  not have  such cogent evidence or any evidence available in  the matter  so  as to come to a conclusion about  the  disturbed environmental  equilibrium  by  reason  of  the  change   of bio-diversity  in  the area in question rather  the  records suggest otherwise.  Another factual element ought also to be noticed  since  the same is rather significant to  wit:   An assurance  or  undertaking not to disturb the existing  sand dunes.   Mr.   Chhagla  appearing for the  Respondents  upon instructions  has  candidly  submitted that as a  matter  of fact,  there  has  been  a change in the plan  and  the  new revised  plan contain maintenance of the sand dunes since on an  appraisal  of the entire situation, the Respondent  feel that  the  dunes would otherwise enhance the beauty  of  the hotel or the beach resort.  Protection of the environment is required  undoubtedly provided however the same is  required and  it  is in this perspective Mr.  Chhagla contended  that the entire edifice of the appellants contention is based on assumptions  de hors the realities.  As a matter of fact,  a faint  suggestion of motive has also been introduced, we  do not  however,  subscribe to such a view since the intent  of this   particular   public  interest   litigation   is   the preservation  and maintenance of environment in a beach area

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within  the Goa Coastal Zone.  Coastal Zone shall have to be protected  undoubtedly but development of the area cannot be decried  also  in  any  way provided however,  there  is  no environmental  degradation  and  it  is on  this  score  Mr. Chhagla  contended  that, in fact, on the locale there  were temples:  educational institutions and settlements as well - thus,  it is not that the beach was totally uninhabited  and there  was  available  an unspoiled beach.   The  record  of Rights as noticed above has recorded the area in question to be  a beach resort and admittedly also settlement, in  fact, is  existing in the area in question, even today.  It is not that  a hitherto unspoiled coastal zone is being spoiled, it is  even  presently  being occupied  by  human  settlements. Another  severe  criticism which had come from Dr.   Alvares pertains to the issue of CRZ-I area.  In the earlier part of the  judgment I had, in fact, dealt with the  categorisation of  the Coastal Zone and CRZ-I, which cannot but be ascribed to  be  a totally prohibited zone for any  construction  and there  also cannot be any dispute in regard thereto.  In the event the area is ascribed to be CRZ-I area, question of any grant   of  sanction  would  not   arise  and  the   earlier pronouncement of this Court of which reference has been made by  my  learned Brother Pattanaik, J.  has settled the  same finally  and  I record my respectful concurrence  therewith. The  High Court also while dealing with the issue has  dealt with  the same and came to a conclusion however, the area is in  CRZ-III  and not CRZ-I :  Needless to record  here  that Governments   sanction   and   Ministry  of   Environments clearance   (both  Central  and   State  Governments)   have proceeded on the basis thereof and we do not find any contra evidence  so  as to depict its coastal-zone  characteristics other  than  CRZ-III.   A  recapitulation on  the  score  of Coastal Management would prompt us to record that since each beach is different in its contour, there is no fixed formula for  its  management either.  Coastal zone of  Goa  attracts tourists  by  reason of availability of natures bounty  but infrastructural  facility  is also required to develop  this recently growing tourism industry provided, of course, there is  no  permanent affectation of environment in the area  in question.   The records depict that the issue of affectation of  environment, be it permanent or even temporary does  not and  cannot  arise in the contextual facts.  Environment  is beauty, environment is our sustenance, as such in the event, the  same  perishes, humanity also would perish may  not  be today  or  tomorrow but certainly a day or two  later.   The issue,  therefore,  in  the  Appeal is whether  there  is  a degradation of environment in the event of construction, the records  speak  volumes in the negative:   Environmentalists opine  in  the  negative  would the court be  justified  in thwarting  the project in the contextual facts - the  answer cannot  possibly be in the affirmative.  On the wake of  the aforesaid, I record my concurrence with the conclusion of my learned  Brother  Pattanaik,  J.  that  the  judgment  under Appeal cannot be faulted in any way and as such I would also dismiss the Appeal without, however, any order as to costs.