# GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT. LTD. AND ORS

- **Citation:** [2000] Supp. 4 S.C.R. 502
- **Court:** Supreme Court of India
- **Decided:** 2000-11-10
- **Case number:** Civil Appeal No. 401 of2000
- **Bench:** G.B. Pattanaik, Umesh C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/goa-foundation-goa-v-diksha-holdings-pvt-ltd-and-ors-17650
- **Pages:** 29

## Headnote

Environment Protection Act, 1986: Ss. 3(1) and 3(2) (v)-Environment
Protection Rules 1986: Rule 5(3) (d).
Environment law-Coastal zones-Notification for regulation of
activities-Goa Coastal zone-Permission for construction of hotel-Effect
on environment and beach-Proposal for construction scrutinised by various
agencies-Clearance of project given by Expert Committee and Ministry of
Environment-Permission for construction of hotel granted after consideration
D of relevant and germane materials-Writ challenging permission-DismissalHeld hotel Plot was situated in CRZ-111 under the Coastal Zone Regulation
Notification-held there was no infraction of any of the provisions of CRZ
Notification-There was no illegality in granting permission for construction
of hotel.
E
Environmental law-Environmental protection-Need for development,
Harmonization and balancing of these two issues-Need for.
Environmental law-Beach-Sand and Sand dunes-Nature and impact
of
F
Respondent No. 1, Mis. Diksha Holdings Pvt. Ltd. applied to Town and
Country Planning Department for permission to the construction of a beach
resort in Goa. The application for grant of sanction for the proposed
construction was srcutinised by statutory agencies. The Chief Planner
submitted its report to the Ministry of Environment and Forest stating that
G construction of the proposed hotel will not affect environment equilibrium and
biodiversity of coastal area. After taking opinion of the Secretary, Department
of Science, Technology and Environment, the Ministry of Environment granted
clearance of the project. On getting clearance from the Ministry of
Environment and Forest, the Cancona Municipal Council granted licence for
construction of hotel on a plot of land situated in the area of Nagorcem,
H Palolem, Taluka-Cancona, Goa.
502
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT. LTD.
503
The appellant-foundation, an organisation committed to preserve the A
environment and ecology of the coastal zone, filed a writ petition before the
Bombay High Court seeking a direction to restrain respondent No.I from
constructing the proposed hotel. The grounds urged in support of the petition
were: (1) Under the Notification issued by the Central Government for
regulation of Coastal Zones in the Country, the land in question comes within B
CRZ-1, and as such it is not permissible to have any constructions on the
disputed plot of land; (2) the plan and sanction obtained for such construction
from the competent authority are in contravention of the p_rovisions of the
Environment Protection Act, 1986 and permission has been granted by the
concerned authority without ap~lication of mind and without considering the
relevant materials; and (3) as there exist large number of sand dunes, C
constructions of hotel will ultimately lead to irreversible ecological damage
of the coastal area.
The High Court adopted a balancing approach of maintaining and
preserving the environment and ecology of pristine beach with sand dunes
and development of hotels and holiday resorts for economical development of D
the State. It took into account (i) the approval of the Ministry of Environment
. and Forest; (ii) expert committee's recommendations recommending the hotel
project and indicating that the existing sand dunes will not be disturbed; (iii)
several inspections carried on by the different authorities and the fact that
the Chief Town Planner submitted its report to the Ministry of Environment E
and Forest, stating therein that the construction of the hotel will not affect
the sand dunes; and (iv) the report submitted by Director, Science and
Technology. It came to the conclusion that the appropriate authority has
ac.corded permission for construction of the hotel after consideration of
relevant and germane materials and that the writ petitioner has failed to
establish any illegality in the matter of grant of such permission. It recorded F
a finding that the State Authorities as well as the Central Government were
awa

## Text

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A
B
c
GOA FOUNDATION, GOA
v.
DIKSHA HOLDINGS PVT. LTD. AND ORS.
NOVEMBER 10, 2000
[G.B. PATTANAIK AND UMESH C. BANERJEE, JJ.]
Environment Protection Act, 1986: Ss. 3(1) and 3(2) (v)-Environment
Protection Rules 1986: Rule 5(3) (d).
Environment law-Coastal zones-Notification for regulation of
activities-Goa Coastal zone-Permission for construction of hotel-Effect
on environment and beach-Proposal for construction scrutinised by various
agencies-Clearance of project given by Expert Committee and Ministry of
Environment-Permission for construction of hotel granted after consideration
D of relevant and germane materials-Writ challenging permission-DismissalHeld hotel Plot was situated in CRZ-111 under the Coastal Zone Regulation
Notification-held there was no infraction of any of the provisions of CRZ
Notification-There was no illegality in granting permission for construction
of hotel.
E
Environmental law-Environmental protection-Need for development,
Harmonization and balancing of these two issues-Need for.
Environmental law-Beach-Sand and Sand dunes-Nature and impact
of
F
Respondent No. 1, Mis. Diksha Holdings Pvt. Ltd. applied to Town and
Country Planning Department for permission to the construction of a beach
resort in Goa. The application for grant of sanction for the proposed
construction was srcutinised by statutory agencies. The Chief Planner
submitted its report to the Ministry of Environment and Forest stating that
G construction of the proposed hotel will not affect environment equilibrium and
biodiversity of coastal area. After taking opinion of the Secretary, Department
of Science, Technology and Environment, the Ministry of Environment granted
clearance of the project. On getting clearance from the Ministry of
Environment and Forest, the Cancona Municipal Council granted licence for
construction of hotel on a plot of land situated in the area of Nagorcem,
H Palolem, Taluka-Cancona, Goa.
502
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT. LTD.
503
The appellant-foundation, an organisation committed to preserve the A
environment and ecology of the coastal zone, filed a writ petition before the
Bombay High Court seeking a direction to restrain respondent No.I from
constructing the proposed hotel. The grounds urged in support of the petition
were: (1) Under the Notification issued by the Central Government for
regulation of Coastal Zones in the Country, the land in question comes within B
CRZ-1, and as such it is not permissible to have any constructions on the
disputed plot of land; (2) the plan and sanction obtained for such construction
from the competent authority are in contravention of the p_rovisions of the
Environment Protection Act, 1986 and permission has been granted by the
concerned authority without ap~lication of mind and without considering the
relevant materials; and (3) as there exist large number of sand dunes, C
constructions of hotel will ultimately lead to irreversible ecological damage
of the coastal area.
The High Court adopted a balancing approach of maintaining and
preserving the environment and ecology of pristine beach with sand dunes
and development of hotels and holiday resorts for economical development of D
the State. It took into account (i) the approval of the Ministry of Environment
. and Forest; (ii) expert committee's recommendations recommending the hotel
project and indicating that the existing sand dunes will not be disturbed; (iii)
several inspections carried on by the different authorities and the fact that
the Chief Town Planner submitted its report to the Ministry of Environment E
and Forest, stating therein that the construction of the hotel will not affect
the sand dunes; and (iv) the report submitted by Director, Science and
Technology. It came to the conclusion that the appropriate authority has
ac.corded permission for construction of the hotel after consideration of
relevant and germane materials and that the writ petitioner has failed to
establish any illegality in the matter of grant of such permission. It recorded F
a finding that the State Authorities as well as the Central Government were
aware of the existance of sand dunes formation up-to 200 meters strip from
shore line where no construction is permitted and beyond the said 200 meters
strip within which hotel complex is proposed to be built up is under category
CRZ III and as such there is no prohibition for construction of the hotel within G
that area. The High Court accordingly, dismissed the writ petition filed by
the Goa Foundation.
Against the Judgment of the High Court, appeal was preferr~d before
this Court. During the pendency of appeal before this Court a report was
obtained from the National Institute of Oceanography. Two of the scientists H
504
. SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R
A who w~re authors of this report were'_members .ofthe Coa State Committee
. for Coastal Environment They had not-objected to the approval of the hotel
plan in their earlier reports. However, i~ thissubsequent report they indicated
.that the permission granted for· the hotel would have the effect of demolishing
the sand dunes. Relying on this report it was contended on behalf of the
B appellant that the matter should be remitted to Ministry of Environment and
Forest for reconsider·aticin.
c
D
The questions for consideratio~ iii this appeal are:
1.
Whether ther~ exists any infraction of any'rule, regulation or law
by granting environmenta! cl~ara
1
itce in favour of the respondent
to have the hotel complex?
2.
Whether the~e exists any.authentic data or material for coming
to a conclusion that ;aitction for hotel complex at the aisputed plot
would upset the environment and ecological balanceiofthe area nnd
would really have the effect_.ofdamagingJli.e pristine beach with
sand dunes, if any?
Dismissing the appeal, the Court
HELD: Per Pattanaik, J.
E
I.The disputed plot is situated in Category CRZ III and was available
for development by way of construction of hotel/beach resort in the
development pla~ of Goa, which was duly approved by the Central Government
and the activities in question cannot be held to be prohibited activity under
the initial notification of the Govt. oflndia. (519-E-F]
F
.
2. The appellant has utterly failed to establish by referring to any
authentic material that there has bee·n an 'infraction of any provisions of the
cl~Z-Notification or the approved management Plan of Goa nor is there imy
illegality in the order of the Government of India, granting environmental
clearance as well as the order of the State Auth~rities in sancti6ning the
G
project on the basis of such environmental clearance. [520-F]
•>-l;:·
3. Ministry of Environment and Forest, issued the Notification on 19th
of February, 1991 in exercise of powers under Section 3 (1) and Section 3(2)
(v) of the Enviro_nment Protection.Act, 1986 and rule 5 (3) (d) of the
Environment Protectio'n Rules, 1986, declaring Costa! Stretches as Coastal
Regulation Zone (CRZ) and Regulating Activities' in the CRZ. Paragraph 2
H of the aforesaid notification declares certain activities as prohibited activities
-
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT.LTD.
505
within the CRZ. Paragraph 3 provides that all other activities, except those A
prohibited in para 2 will be regulated, as indicated under the said paragraph.
Coastal stretches in the country are classified into three categories namely
CRZ-1, CRZ-11, and CRZ-111. Paragraph 6 of the Notification provides the norms
for regulation of the activities and so far as CRZ-1 is concerned, it
categorically provides that no new construction shall be permitted within 500 B
meters of the High Tide Line and no construction activity, except as listed
under 2(xii), will be permitted between the Low Tide Line and the High Tide
Line. By the proviso, certain constructions have been permitted, like
construction of dispensaries, schools, public rain shelters, community toilets,
bridges, jetties, water supply, drainage and sewerag~ etc. Under CRZ-111, an
area upto 200 meters from High Tide Line is to be earmarked as No C
Development Zone. But development of vacant plots between 200 meters and
500 meters of High Tide Line in designated areas ofCRZ-111 with the prior
approval of Ministry of Environment and Forest is permitted for construction
of hotels/beach resorts, subject to the conditions stipulated in the guidelines
at Annexure-ll. (515-F-H; 516-A-D)
D
4. Under the main notification issued by the Government of India, ti.e
Coastal States and Union Territory Administration were required to prepare
within one year from the date of the notification, Coastal Zone Management
Plan, identifying and clarifying the Regulation Zone Areas within the
respective territories, in accordance with the guidelines contained in the main E
Notification and those plans were required to be approved with or without
modifications by the Ministry of Environment and Forest, Govt. of India. The
Notification of the Union oflndia further stipulates that within the framewotk
of the approved Management Plan, all developments and activities within the
Regulation Zone, except the prohibited activities and those which required
environmental clearance from the Ministry of Environment and Forest, Govt F
of India, were to be regulated by the State Government The Goa State Coastal
Zone Management Plan stood approved by the Govt. of India Ministry of
Environment and Forest on 27th of September, 1996 with certain conditions
mentioned in the letter and this approval purports to have been accorded in
exercise of powers vested in the Central Government under Section 3 (3) (1) G
of the CRZ Notification of1991."ln the State of Goa, so far as Cancona Taluka
is concerned, in which Ta Iuka, the proposed hotel of the respondent situates,
the whole of Cancona Taluka is classified as CRZ I , except settlement area,
which is classified as CRZ III and in Nagorcem area, the entire area is
classified as CRZ I, except settlement area which is classified as CRZ Ill.
According to the various reports submitted by the State Government to the H
506
SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.
A Govt. of India as well as reports obtained by the Union of India through its
own scientists, in the area, where the permission has been accorded for
construction of hotel, lot of settlement and built up structures are available
like temples, schools etc. and that the plot of land is located beyond 200 meters
of the High Tide Line. On going through the aforesaid CRZ Notification issued
by the Government of India as well as the approved Coastal Zone Management
B Plan of State of Goa, it cannot be said that there has been an infraction of any
provisions, and by allowing construction of hotel on the land, the authorities
have allowed certain prohibited activities. [516-G-H; 517-A-E)
5. From the materials on record, it is clear that the area of the proposed
C construction is designated as settlement area and the same has been
categorised as CRZ III in the approved Coastal Zone Management Plan of Goa.
The proposal for construction of hotel was thoroughly examined by the
Ministry, including a visit to the site where the construction of hotel is
proposed and the sand dunes and only after satisfying that the construction
of the project was not on the sand dunes, the approval for the project was given
D by the Union Ministry of Environment and Forest. [517-F-H)
6~ The appellant-Goa Foundation, had flied its objectfons before the
environment authorities, requesting not to grant environmental Clearance
and it is because of such objections, the department of Environment and Forest
E had taken adequate care in obtaining reports from different sources including
their own source and then, ultimately came to the conclusion that there
possibly cannot be any objection to allow the hotel project to come up at the
place particularly, when there exist several earlier settlements and structures
over the area. On these mass of materials and those materials having been
obtained after the appellant objected to grant of environmental clearance to
F the hotel project, when the Central Government granted the environmental
clearance, there is no infirmity with the said grant of clearance nor it can be
said that the conclusion of the competent authority are based on nonconsideration of any relevant and germane materials. On the other hand, the
Central Government has taken due care in obtaining reports from the
G authorities of the Goa Government as well as deputed its own scientists to
have a spot inspection and report about the feasibility of the hotel project being
cleared up. [519-B-El
7. The subsequent report of the National Institute of Oceanography
obtained by the appellant cannot be considered for coming to a conclusion
H that the conclusion of the environmental authorities and the consequential
' ..
-
-
GOA FOUNDATION, GOA 1·. DIKSHA HOLDINGS PVT.LTD.
507
clearance of the project is either based on non-consideration of the relevant A
materials or ignoring any vital material, requiring re-consideration, more
so, when the structural constructions of the hotel project is nearing
completion. While the matter was pending in this court, the Goa Foundation
wrote a letter to the Director of National Institute of Oceanography, asking
some clarification and comments in relation to the pending appeal of the Goa B
Foundation in this court and it is in the context, the National Institute of
Oceanography has given the report. Two of the scientists, belonging to the
National Institute of Oceanography who were the authors of the report were
Members of the Goa State Committee for Coastal Environment and they were
signatories to the approved plan and they never objected to the aforesaid
approved plan, though now, they indicate that permission granted for the hotel C
would have the effect of demolishing the sand dunes. The present report of
National Institute of Oceanography, if read with the letter of the Goa
Foundation unequivocally indicates that the Goa Foundation had obtained this
report just to nullify the environmental clearance, granted by the Department
of Environment and Forest. On the basis of such report the prayer that the
matter should be remitted back to the Department of Environment and Forest D
for re-consideration of their approval granted earlier cannot be granted.
(520-D, E; 519-G-H; 520-A-D)
People United for Better Living in Calcutta-Public and Anr. v. State
of West Bengal and Ors., AIR (1993) Calcutta 215 and Indian Council for E
Enviro-Legal Action v. Union of India and Ors., 11996) 5 SCC 281, referred to.
Per Banerjee, J. (Supplementing)
1. The application for grant ofsanction for the proposed construction
was scrutinised by statutory agencies including the State Environment F
Department as also the Ministry of Environment and Natural Resources of
the Government of India. 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 as obtained by the Government of India has been on
actual specific verification of the site in question and it is on the clearance G
from the Central Government that the State Government in its bid to have a
balance for development and ecology also c.onsidered the issue and upon due
deliberation thereof granted the sanction. The area is in CRZ-llJ and not CRZ1. Government's sanction and Ministry of Environment's clearance - both
Central and State Government have proceeded on the basis thereof and there
is no contra evidence so as to depict its coastal-zone characteristics other H
508
SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R.
A than CRZ-111. 1527-D-E; 529-D-El
2. "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'. It is a product of abrasion
or break down of older parent or source rocks. Admittedly, the dunes provide
B a beauty to the area in question and nature's 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. Nonavailability of any evidence of alteration or physical, biological and geological
C 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
D elimination of existing flora and fauna of the area in question, no details are
available as regards the plants species which otherwise be threatened in the
event of these being such a project. Respondents have given an assurance or
undertaking not to disturb the existing sand dunes. It has been candidly
submitted that as a matter of fact, there has been a change in the plan and the
E new revised plan contain maintenance of the sand dunes since on an appraisal
of the entire situation it has been felt that the dunes would otherwise enhance
the beauty of the hotel or the beach resort.1524-E; 527-G-H; 528-8-C, Fl
Concise Oxford Dictionary:
F
Mcgraw-Hill Encyclopedia of Science and Technology 6th Edn. and
New Encyclopedia Britannica, Vol. 10, referred to.
3. 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,
G the Committee recommended the same upon recording of signature as a mark
of approval of all members including the two who later gave a report otherwise.
Court reserve its doubts as to the credence to be attributed to the said regrant
report of the National Institute of Oceanography. The affectation admittedly
cannot possibly be a mere fanciful idea but there ought to be cogent materials
in support therefore. Unfortunately, there is no cogent evidence or any evidence
H available in the matter so as to come to a conclusion about the disturbed
-
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT.LTD.
509
environmental equilibrium by reason of the change of bio-diversity in the area A
in question rather the records suggest otherwise. (527-F, 528-D)
4. 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 B
does not by itself mean and imply stoppage of all projects. (522-8)
5. Protection of environment is required undoubtedly provided however
the same is required. 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. The record of Rights has recorded C
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 settlement. (528-G-H; 529-A-BI
People United for Better living in Calcutta - Public and Anr. v. State of D
West Bengal, AIR (1993) Calcutta 215, referred to.
6. 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 nature's bounty but infrastructural facility is also required to
develop this recently growing tourism industry provided, of course, there is E
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 F
or two later. (529-D-F)
7. Therefore, on the issue whether there is a degradation of environment
in the event of construction, the records speak volumes in the negative.
Environmentalists opine in the negative. The court would not be justified in
thwarting the project in the contextual facts. (529-G)
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of2000
From the Judgment and order dated 8.10.99 of the Bombay High Court
in W.P. no. 4594 of 1999
In-person for Appellant:
H
510
SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.
A
P. Chidambaram, and l.M. Chhagla, Nina Gupta, Ranjit Kumar, Ms. Arpita
B
Sharma, Ms. Jaya and Vineet Kumar for the Respondents.
Mukul Rohtagi, Ms. A. Subhashini, Ashok Bhan and S.K. Dwivedi for
the State of Goa.
The Judgments of the Court were delivered by
PATT ANAIK, J. This appeal by the Goa Foundation, is directed against
the judgment of the Bombay High Court dated 8th of October, 1999, dismissing
the wdt petition filed by the appellant. Initially, the appeal had been filed
C 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-1, and as such it
D 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
E 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
F such construction. The High Court in the impugned judgment, took into
consideration the balancing task of maintaining and preserving 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
G 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-111, 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
H the Goa Foundation had submitted its representation to the Ministry of
-
..
GOA FOUNDATION,GOAv. DIKSHA HOLDINGS PVT. LTD. [PATTANAIK,J.]
511 ·.
Environment and forest, objecting to the construction of the hotel at the A
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. B
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 landscape 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 C
Goa. The Ministry of Environment and Forest also had taken the opinion of
'the Secretary, Department of Science, Technology & 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 D
Ministry granted clearance on 9th of October, 1997. On getting such clearance
from the Ministry of Environment and Forest, the Cancona Municipal Council
granted license for construction of hotel on 16th January, 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 E
appropriate authority have accorded pennission 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 pennission. 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 meters strip from shore line where no F
construction is permitted and beyond the said 200 meters strip within which
the hotel complex is proposed to be build up is under category CRZ llI 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.
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
G
the High Court, as Foundation was of the opinion that relevant materials had H
512
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A 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
B rule 5(3)(d) of the Environment (Protection) Rules, 1986 and restrictions on the
setting up and_ expansion of industries having been put within the said CRZ,
which·li-es upto 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
C 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 motivated and designedly made to assist the
D 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 re- consideration to the Department of
E Ministry of Environment and Forest for consideration of some fresh data
which the Goa Foundation has found subsequent to the filing of the writ
petition before the High Court.
F
Mr. l.M. Chhagla, the learned senior 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 to 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
G 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
H their mind to the relevant and germane materials or that the clearance and
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GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT.LTD. [PA TT ANf'\IK, J.] 513
sanction of the plan was obtained by any unfair means. According to Mr. A
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 structural construction
of hotel has almost been completed and at this length of time it would be B
wholly inequitable and inappropriate to accept the contention of the appellant
to remit the matter to the Ministry of Environment and Forest for reconsideration. 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 C
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 interest 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 D
they were mere signatories 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 its due weight.
Mr. Mukul Rohtagi, the learned Additional Solicitor General, appearing E
for the State of Goa, submitted with vehemence that the State Government
and the concerned authorities, for granting license, have acted only after the
Govt. 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 F
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 in 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 G
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 authorities
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. H
514
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A
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,
B 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 and Anr. v. State of West Bengal and ors.,
AIR (l 993) Calcutta 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
C then was) came to the conclusion:
D
E
F
"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 awareness and considering the impact of this
problem on the society in regard thereto Law Courts should also rise
upto 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 wellsettled 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
G 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 d'hors the same. In the case of Indian Council for EnviroLegal Action v. Union of India and Ors., [ 1996] 5 SCC, 281, this Court had
the occasion to deal with the question of protection of 6000 kms long coast
H line of India and the Court emphasised that it would be the duty and
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT. L TQ. [PA TT ANAIK, J.] 5 J 5
responsibility of the coastal states and Union Territories in which the stretches A
exist, to see that the notifications issued under the provisions of Environment
(Protection) Rules as well as the notifications issued, declaring the coastal
stretches 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 a view to protect the ecological balance in the coastal areas, notifications B
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 C
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.
· Bearing in mind the observations made in the aforesaid cases, let us
now examine the case in hand to find out as to whether there exists any D
infraction of any rule, regulation or law by granting environmental clearance
in favour of the respondent to have the hotel complex and whether there
exists any authentic data or material before us for coming to a conclusion that
by allowing such hotel complex at the disputed plot would upset the
environment and ecological balance of the area and would really have the E
effect of damaging the pristine beach with sand dunes, if any.
Coming to the CRZ notification, it transpires that the Ministry of
Environment and Forest, issued the Notification on 19th of February, 1991 in
exercise of powers under Section 3(1) and section 3(2)(v) of the Environment
(Protection) Act, 1986 and rule 5(3)(d) of the Environment (Protection) Rules, F
I 986, declaring Coastal Stretches as Coastal Regulation Zone (CRZ) and
Regulating Activities in the CRZ. Be it be stated, the aforesaid notification
was issued after considering duly, all the objections received by the Central
Government. Paragraph 2 of the aforesaid notification declares certain activities
as prohibited activities within the CRZ. Clause (xiii) prohibits dressing or G
altering of sand dunes, hills, natural features including landscape changes for
beautification, recreational and other such purpose, except as permissible
under the Notification. Paragraph 3 of the Regulation, provides that all other
activities, except those prohibited in para 2 will be regulated, as indicated
under the said paragraph. Annexure I to the Notification classifies the Coastal
Regulation Zone into four categories, but Category IV relates to Coastal H
516
SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.
A stretches in the Andaman & Nicobar, Lakshadweep and small islands and as
such all other coastal stretches in the country are classified into three categories
namely CRZ- I, CRZ-11, and CRZ-111. Paragraph 6 of the Notification provides
the norms for regulation of the activities and so far as CRZ I is concerned,
it categorically provides that no new construction shall be permitted withir.
B 500 meters of the High Tide Line and no construction activity, except as listed
under 2(xii), will be permitted between the Low Tide Line and the High Tide
Line. By the proviso, certain constructions have been permitted, like
construction of dispensaries, schools, public rain shelters, community toilets,
bridges, jetties, water supply, drainage and sewerage etc., but the proviso
applies to the State of West Bengal in Sunderban area. Under CRZ- III, an
C area upto 200 meters from High Tide Line is to be earmarked as No Development
Zone. But development of vacant plots between 200 meters and 500 meters
of High Tide Line in designated areas of CRZ III with the prior approval of
Ministry of Environment and Forest is permitted for construction of hotels/
beach resorts, subject to the conditions stipulated in the guidelines at
Annexure-11. Annexure-11 to the notification provides detailed guidelines for
D development of beach resorts and hotels in the areas of CRZ-111.