PATTANAIK - (1.) THIS appeal by the Goa Foundation, is directed against the judgment of the Bombay High Court dated 8th of October, 1999, dismissing the writ petition filed by the appellant Initially, the appeal had been filed through counsel, but later on, the appearing counsel having withdrawn, the appeal was argued by the Secretary of the Goa Foundation, Dr. Claude Alvares. The appellant filed the writ petition before the High Court as a Public Interest Litigation, objecting to the construction of a hotel on a plot of land situated in the area of Nagorcem, Palolem, Taluka-Cancona, Goa, inter alia, on the ground that the land in question comes within CRZ-I, and as such it is not permissible to have any construction on the same plot of land. It was also contended that the plan and sanction obtained for such construction from the competent authority, are in contravention of the provisions of the Environment (Protection) Act and such permission has been granted by the concerned authority without application of mind and without considering the relevant materials, and, therefore, the Court should issue mandamus, injuncting the hotelier-Diksha Holdings Pvt. Ltd., from constructing the proposed hotel on the disputed plot of land. It was also contended before the High Court that there exist large number of sand dunes and by permitting the respondent to have the hotel complex on the plot of land will ultimately lead to irreversible ecological damage of the coastal area, and, therefore, the Court should prevent such construction. The High Court in the impugned judgment, took into consideration the balancing task of maintaining and perversing the environment and ecology of the pristine beach with sand dunes and the development of hotels and holiday resorts for economical development of the State. It also took into account several Acts and Regulations like Town and Country Planning Act, the CRZ, Notification, the Coastal Zone Management Plan. It also took into account the approval of the Ministry of Environment and Forest, under which the disputed hotel complex comes as CRZ-III, the Court also took into account the Expert Committee's recommendations, recommending the hotel project for environmental clearance, indicating therein that the existing sand dunes will not be disturbed in any manner and also the fact that the Goa Foundation had submitted its representation to the Ministry of Environment and forest, objecting to the construction of the hotel at the disputed location. The High Court also took into account several inspections carried on by the different authorities and the fact that the Chief Town Planner submitted its report to the Ministry of Environment and forest, stating therein that the construction of the hotel will not affect the sand dunes. The High Court also had privilege of going through the report submitted by Dr. N.P.S. Varde, the Director of Science, Technology and Environment, Goa, who had categorically indicated that the hotel project is located on undistributed beach eco-system which has mostly gradually undulating land cape covered with stable dune vegetation which in a strict technical sense can be classified as sand dunes, and he was also of the opinion that if such technical view is taken, no development can ever be taken place along with the sea coast of Goa. The Ministry of Environment and Forest also had taken the opinion of the Secretary, Department of Science, Technology and Environment on the question whether sand dunes exist at the site of proposed hotel. The Ministry of Environment and Forest also sent one of its Scientists Dr. R. Warrier to the place where the hotel complex was to come up and said Dr. Warrier submitted his inspection report on 16th of September, 1997 and it is only after that the Ministry granted clearance on 9th of October, 1977. On getting such clearance from the Ministry of Environment and Forest, the Cancona Municipal Council granted licence for construction of hotel on 16/01/1998. On these set of materials and applying the law relating to the approach of a Court in a Public Interest Litigation, the High Court came to the conclusion that the appropriate authority have accorded permission for construction of the hotel on the disputed site, after consideration of relevant and germane materials and the writ petitioner has failed to establish any illegality in the matter of grant of such permission. The High Court recorded a finding that the State Authorities as well the Central Government were aware of the existence of sand dunes formation up-to 200 metres strip from shore line where no construction is permitted and beyond the said 200 meters strip within the hotel complex is proposed to be build up is under category CRZ III and as such there is no prohibition for construction of the hotel within that area. The High Court accordingly, dismissed the writ petition filed by the Goa Foundation.
(2.) ASSAILING the impugned judgment of the High Court Dr. Claude Alvares, Secretary of the Goa Foundation, contended with vehemence that the foundation is committed to preserve the environment and ecology of the coastal zone and it is with that objective the writ petition had been filed in the High Court, as Foundation was of the opinion that relevant materials had not been placed before the appropriate authority before the environmental clearance was obtained from the Ministry of Forest and Environment and before the Municipal Council sanctioned the plan for construction of the hotel. According to the appellant, coastal stretches having been declared as Coastal Regulation Zone (for short CRZ) in exercise of powers conferred under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 and rule 5(3)(d) of the Environment (Protection) Rules, 1986 and restrictions on the settting up and expansion of industries having been put within the said CRZ, which lies up to 500 meters of the High Tide Line, the concerned authorities committed gross error in granting environmental clearance as well as in granting permission to the respondent for setting up the hotel complex. The appellant also submitted that the existance of sand dunes having been admitted in several reports, the disputed area in question should have been categorised as Category I (CRZ I) which does not permit any new construction except those listed under 2(xii) between Low Tide Line and the High Tide Line and the so-called reports classifying the land over which the hotel complex is coming up as CRZ-III are motived and designedly made to assist the respondent in having the hotel complex and, therefore, this is a fit case where this Court should prohibit the construction of hotel, annulling the permission granted by the Municipal Council and annulling the environmental clearance of the Ministry of Environment and Forest, Govt. of India or at least, this Court should remit the matter for reconsideration to the Department of Ministry of Environment and Forest for consideration of some fresh data shall the Goa Foundation has found subsequent to the filing of the writ petition before the High Court. Mr. I. M. Chhagla, the learned counsel appearing for the respondent, on the other hand contended that it has been held by this Court in several cases that in the matter of developmental activities and protection of environment and ecology, the Court's approach should be achieve an appropriate balance between the development and the environment, so that both can co-exist without affecting the other. The High Court in the impugned judgment, has approached the problem from the aforesaid stand point. It took into account all the relevant materials which had been considered by the Ministry of Environment and Forest before granting environmental clearance and on the basis of such clearance, ultimately the Municipal Council sanctioned the plan for putting up the hotel and no contrary materials could be produced before the High Court to take any adverse view or to enable the High Court to come to the conclusion that either the concerned authorities did not apply their mind to the relevant and germane materials or that the clearance and sanction of the plan as obtained by any unfair means. According to Mr. Chhagla, it took long 22 months for the respondent to obtain the necessary sanction of the plan and such delay in obtaining the sanction of the plan has already caused enormous escalation of cost in bringing the hotel project. Mr. Chhagla, also further submitted on instructions that the structual construction of hotel has almost been completed and at this length of time it would be wholly inequitable and inappropriate to accept the contention of the appellant to remit the matter to the Ministry of Environment and Forest for re-consideration. Mr. Chhagla also placed before us the different reports of different authorities at different point of time and, so far as the subsequent report of the National Institute of Oceanography, obtained by the Goa Foundation during the pendency of this appeal in this Court, Mr. Chhagla submits that two of the members were also Members of the Committee which cleared the environmental clearance and as such no credence can be given to such self-serving report. Dr. Claude Alvares, in his reply however submitted that the Foundation has no self-serving interst in the matter except its effort to protect the environment and ecology. He also submitted that two Members who were party to the environmental clearance had themselves indicated that they were mere signataries to the decision taken without any application of mind, and, therefore the report of the National Institute of Oceanography which was submitted in this Court should be given is due weight. Mr. Mukul Rohtagi, the learned Additional Solicitor General, appearing for the State of Goa, submitted with vehemence that the State Government and the concerned authorities, for granting license, have acted only after the Government of India in the Ministry of Environment and Forest gave environmental clearance to the proposal of setting up of a hotel. Mr. Rohtagi also contended that in a State like Goa, where economy of the State, depends fully on tourism, if hotels are not allowed to come up on the sea shore, then the development of the State will come to a grinding halt. At the same time, the learned counsel submitted that the ecology and environment, must be protected and in the case and hand, the Government has proceeded from the aforesaid stand point. According to Mr. Rohtagi, several inspections having made to examine whether permission can be granted at the proposed place for construction of hotel and on being fully satisfied that such permission, does not contravene any of the prohibitions and restrictions, contained in the CRZ, notification as well as provisions contained in the Environment (Protection) Act, the State authorites have accorded permission to the respondent for building up the hotel, and, therefore, the High Court was fully justified in dismissing the writ petition filed by the appellant and this Court should not interfere with the said order.
(3.) THE learned counsel, appearing for the Union of India, more or less, reiterated the stand taken by the learned Additional Solicitor General, appearing for the State of Goa. Before we examine the materials on record to test the correctness of the rival submissions, we think it appropriate to notice one or two decisions, indicating the approach of a Court in such matters concerning environment and development. The Calcutta High Court in the case of People United for Better Living in Calcutta Public v. State of West Bengal, AIR 1993 Cal 215, had the occasion to deal with a similar problem in relation to the wetland and the learned single Judge (U.C. Banerjee, J., as he then was) came to the conclusion : "There is no manner of doubt that the issue of environmental degradation cannot but be termed to be a social problem and considering the growing awarness and considering the impact of this problem on the society in regard thereto Law Courts should also rise up to the occasion to deal with the situation as it demands in the present day context. Law Courts have a social duty since it is a part of the society and as such, must always function having due regard to the present day problems which the society faces. It is now a well-settled principle of law that socio-economic condition of the country cannot be ignored by a Court of law. It is now a well-settled principle of law that while dealing with the matter, the social problems shall have to be dealt with in the way and in the manner it calls for, since benefit to the society ought to be the prime consideration of the Law Courts and ecological imbalance being a social problem ought to be decided by a Court of law so that the society may thrive and prosper without any affection." The learned Judge had indicated in the said judgment that there should be a proper balance between the protection of environment and the development process : The society shall have to prosper, but not at the cost of the environment and in the similar vein, the environment shall have to be protected but not at the cost of the development of the society - there shall have to be both development and proper environment and as such, a balance has to be found out and administrative actions ought to proceed in accordance therewith and not dehors the same. In the case of Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281, this Court had the occasion to deal with the question of protection of 6000 kms long coast line of India and the Court emphasised that it would be the duty and responsibility of the coastal States and Union Territories in which the stretches exist, to see that the notifications issued under the provisions of Environment (Protection) Rules as well as the notifications issued, declaring the coastal streches should be properly and duly implemented and the various restrictions on the setting up and expansion of industries, operation or process etc. in the Regulation Zone should be strictly enforced. The Court had indicated that with view to protect the ecological balance in the coastal areas, notifications having been issued by the Central Government, there ought not to be any violation and the prohibited activities should not be allowed to come up within the area declared as CRZ notification. The Court also emphasised that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction should at all be allowed and the Courts must scrupulously try to protect the ecology and environment and should shoulder greater responsibility of which the Court can have closer awareness and easy monitoring. ;