ALEIXO ARNOLFO PEREIRA Vs. STATE OF GOA

JUDGEMENT

(1.) APPLICANT , Aleixo Arnolfo Pereira filed this Application, mainly challenging permissions granted by Respondent No. 1 i.e. the Directorate of Tourism, State of Goa and Respondent No. 3, Goa Coastal Zone Management Authority (GCZMA), allowing raising of temporary beach shacks and temporary huts in private properties, around villages Mazorda and Utorda. For the sake of convenience, we will refer the Applicant as 'Aleixo'. Aleixo also prays for suspension of permission granted for temporary shacks and temporary huts in the private properties by the Respondent No. 1, in CRZ areas, under the shack policy of State of Goa.

(2.) BRIEFLY stated, case of Aleixo is that the "Tourism Policy for erection of temporary seasonal structures, beach shacks, huts and others 2013 -2016," in State of Goa, commonly known as 'Shack Policy', envisages granting of permission to the beach shacks and huts by the Tourism Department, which is in contravention to the CRZ Regulations, 2011. Aleixo submits that CRZ Notification 2011, empowers only GCZMA, to regulate permissible activities in CRZ areas. GCZMA needs to scrutinize and examine activities in the CRZ areas, as per Clause 4.2, of the CRZ Notification. Aleixo further alleges that under the disguise of shack policy, the Respondent No. 1, has usurped powers of regulatory authorities available only under the CRZ Notification to grant permissions to the beach shacks and huts in CRZ areas. Aleixo states that as per Notification for constitution of GCZMA, GCZMA is required to regulate permissible activities as per approved Coastal Zone Management Plan (CZMP) by following due process, as per Rule 4.2 and after examination of the proposals recommend the proposals for approval of MoEF, as shacks/huts are not covered under the EIA Notification 2006. Aleixo further alleges that GCZMA, though is responsible for enforcement of CRZ Rules and also, to ensure that the coastal environment in the State is protected, GCZMA, has not properly examined and appraised the proposals on various grounds, like location of sand dunes, sewage disposal, solid waste disposal, density of shacks in a particular area etc.

(3.) THE Respondent No. 1 filed affidavit through Sh. Nikhil Desai, the directorate of Tourism and firstly pleads that the shack policy has been evolved under the directions of Hon'ble High Court of Bombay at Goa and as per settled principle of law, formulation of policy is sole prerogative and function of executive authority of the State and the Court need not embark on adequacy or efficacy of such policy, as long as it falls within constitutional limitation and does not offend any provisions of Statute. The Respondent No. 1 submits that similar issue was dealt in PIL Writ Petition No. 330 of 2012, and Hon'ble Division Bench, has categorically held that "erection of temporary structures between months of October to May, is permissible in view of CRZ Regulation, 2011". The Respondent No. 1 submits that other Writ Petition Nos. 9 of 2011 and 167 of 2007, also deal with the issue of shacks. The Respondent No. 1 submits that shack policy has been framed only after approval from the Goa Coastal Management Authority (GCZMA) which is the concerned regulating and monitoring authority for coastal belt of the state. The Respondent No. 1 further submits that this policy has been approved by the Hon'ble High Court of Bombay at Goa, in PIL No. 9 of 2011, tagged with the Writ Petition No. 167 of 2007 and High court has even given liberty to any citizen to challenge independently any provision of the policy or infringement of any individual rights and in view of aforesaid, judicial Dictum there are several Petitions filed before the Hon'ble High Court of Bombay at Goa, challenging the provisions of shack policy 2013 -2016, which are pending for adjudication (Writ Petition No. 606 of 2013, Writ Petition No. 636 of 2013 and Writ Petition No. 683 of 2013). The Respondent No. 1 further submits that beach shacks and huts, are permissible activity under the CRZ Notification, 2011, as per Clause 8.V.3.(iii)since "purely temporary seasonal structures customarily put up between the months of September to May, is a permissible activity except in the beaches, where tortoise nesting sites are located, as listed in Clause 8.V.3(vii)". The Respondent No. 1 further submits that the Respondents are vested with the powers under section 13(a)(5) of the Goa Registration of Tourists Trade Act, 1982 and Rules made thereunder and the state level permission committee decides on every such Application submitted for issue of permission and then recommends its findings for approval of the Govt. before any such permissions are granted. The Respondent No. 1 further states that such permissions involving any erection of structures or development in CRZ areas or environmental issues, contained in CRZ Notification, are subject to approval by GCZMA and the individuals applying for such permissions need to get the approvals from GCZMA, independently, irrespective of such permissions being granted by the Respondent No. 1 under Clause (C) of the shack policy. The Respondent No. 1 therefore submits that shack policy is not violative of the CRZ notification and in any case, the Hon'ble High Court of Bombay at Goa, is seized with same issue involved in several Writ Petitions challenging the shack policy. Therefore, the Applicant is not entitled to challenge shack policy before this Tribunal. The Respondent No. 1 further submits that as the shack policy is developed in consultation with GCZMA, claim of the Applicant -Aleixo that it is violative of CRZ Notification, cannot be sustained. Therefore, the Respondent No. 1 sought dismissal of the Application.