Goa Foundation Vs. Goa State Coastal Zone Management Authority and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/365148
SubjectEnvironment;Constitution
CourtMumbai High Court
Decided OnDec-20-2000
Case NumberWrit Petition No. 319 of 1996
JudgePratibha Upasani and ;R.G. Deshpande, JJ.
Reported in2001(2)ALLMR224; 2001(4)BomCR226
ActsConstitution of India - Articles 21, 48A and 51A; Environment (Protection) Act, 1986 - Sections 6
AppellantGoa Foundation
RespondentGoa State Coastal Zone Management Authority and ors.
Appellant AdvocateN. Alvares, Adv.
Respondent AdvocateA.N.S. Nadkarni, Adv. Gen. and ;S.R. Rivonkar, Addl. Govt. Adv. for Respondents Nos. 1, 2 and 5, ;Joseph Vaz, Addl. C.G.S.C. for Respondent No. 3, ;A.N.S. Nadkarni and ;P.A. Kamat, Advs. for Responden
DispositionWrit petition dismissed
Excerpt:
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environment - limitation of court - articles 21, 48a and 51a of constitution of india and section 6 of environment (protection) act, 1986 - petitioner society incorporated to halt ecological imbalance - respondent obtained permission from respective authorities for construction of resort in area declared as crz zone - writ petition challenging such grant of permission - no malafides in granting permission - balance of interest between preservation of ecology and development of tourism has to be harmoniously maintained - in view of such observation writ petition liable to be dismissed. - article 14: [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] retiral benefit - classification between part time lecturers and full time teachers held, the part-time lecturers form a class by themselves.....
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pratibha upasani, j.1. this writ petition under articles 226 and 227 read with articles 21, 48-a and 51a(g) of the constitution of india, is a public interest litigation filed by the petitioner, the goa foundation, which is non-governmental organization. it is a society registered under the societies registration act. the objects of the petitioner society amongst others, include appropriate action to halt the ecological degradation of the environment and to formulate and implement programmes for the rehabilitation and development of the goan environment and to restore ecological balance. the petitioner society has been pursuing the matter of protection of costal environment in goa and in the rest of india, since it was set up in the year 1986. the petitioner has been monitoring the costal.....
Judgment:

Pratibha Upasani, J.

1. This writ petition under Articles 226 and 227 read with Articles 21, 48-A and 51A(g) of the Constitution of India, is a public interest litigation filed by the petitioner, the Goa Foundation, which is non-Governmental organization. It is a society registered under the Societies Registration Act. The objects of the petitioner society amongst others, include appropriate action to halt the ecological degradation of the environment and to formulate and implement programmes for the rehabilitation and development of the Goan environment and to restore ecological balance. The petitioner Society has been pursuing the matter of protection of costal environment in Goa and in the rest of India, since it was set up in the year 1986. The petitioner has been monitoring the costal areas for several years and has approached the Court on numerous occasions for bringing to the notice of the Court violations of the Environment Protection Act, 1986, (hereinafter for brevity's sake referred to as the 'E.P. A.') in coastal areas and particularly by the Five-star Tourism Beach Resorts.

2. The respondent No. 1, the Goa State Coastal Zone Management Authority, (hereinafter for brevity's sake referred to as the 'G.S.C.Z.M.A.') is a body set up by the respondent No. 2 State of Goa, to clear projects within the Coastal Regulation Zone (hereinafter for brevity's sake referred to as 'CRZ') areas of Goa under the E.P.A. The respondent No. 2 is the State of Goa. The respondent No. 3, the Secretary, Ministry of Environment and Forests, is the Central authority for implementing the CRZ Notification dated 19th February 1991, issued under the E.P.A. throughout the country's coastal areas. The respondent No. 4 the Panchayat of Calangute, is the statutory body set up under the Goa Panchayat Raj Act, 1993, which is responsible for construction activity within its jurisdiction. The respondent No. 5 Dy. Collector (North) is the authority which issues sanad for land conversion in accordance with law. Respondents No. 6, 7 and 8 are parties who were granted permissions to construct the vacation resort in CRZ of Baga, Calangute.

3. The petitioner is challenging, via this writ petition, the construction of a vacation ownership resort called 'Sunset Dunes', at Baga beach by the respondent No. 6 Piva Resorts Pvt. Ltd. The contention of the petitioner is that the said construction is in violation of the CRZ Notification dated 19th February, 1991, issued under E.P.A. The petitioner is challenging permissions dated 27th November, 1995, granted by the respondent No. 1, G.S.C.Z.M.A. and the permission dated 11th April, 1996, issued by the respondent No. 4, Panchayat to the respondent No. 7, who has been granted the permissions on the basis of which respondent No. 6 is constructing the vacation resort. Initially, it appears that the application was made for construction of residential units, but subsequently, application was made for construction of vacation resort, which was granted by the relevant authorities. The contention of the petitioner is that the area falls within the CRZ and therefore, is covered by the CRZ Notification dated 19th February, 1991, issued under the E.P.A. The owners of the plot/respondent No. 8 are residing at Byculla, Bombay and respondent No. 7 is the lawfully constituted attorney of respondent No. 6, for the purpose of procuring the permissions and the permissions have all been granted in the name of respondent No. 7. Proposal was placed before the G.S.C.Z.M.A. and at its 10th meeting the project was approved and the same was communicated to the project promoters via letter dated 27th November, 1995. The application for Sanad was made on 9th November, 1996 and the Sanad was issued by the Dy. Collector on 26th February, 1996. Subsequently, by its order dated 11th April, 1996, the Village Panchayat of Calangute (respondent No. 4) granted approval and licence for the project.

4. It is the contention of the petitioner that the coastal areas of Calangute fall into three CRZ categories : CRZ I, II and III and since the plot in question falls on a sand dune, the areas should be demarcated as CRZ I. The petitioner submits that in CRZ I area no construction or development whatsoever is permitted and since existence of a sand dune is admitted on the said plot of land, no construction is permissible in that area, therefore, all the concerned authorities should not have granted permissions to respondent Nos. 6, 7 and 8 for construction of the beach resort. The petitioner's contention is that in the instant case, permissions, however, have been granted on the assumption that the area falls within the CRZ III. Assuming, the petitioner contends, that the area is classified as CRZ III, development in this area is still severally restricted and as per CRZ Notification only two types of construction are permitted in the 200-500 mts. area zoned as CRZ III :

'a) construction of beach resorts or dwellings for the temporary occupation of tourists for which prior permission has to be obtained from the Ministry of Environment and Forests under CRZ Notification;

b) The second category of permissions can be granted solely in terms of Clause 6(2) CRZ III(iii) of the CRZ Notification which reads as under :---

'Construction/reconstruction of dwelling units between 200 to 500 metres of the High Tide Line permitted so long as it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 per cent of the plot size; the overall height of construction shall not extend 9 metres and construction shall not be more than 2 floors (ground floor plus one floor)'.

5. In other words, permission can only be granted to those who are part of village gaothans or village community and so long as it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans. Permissions to construct, therefore, cannot be granted to any person or entity which is not part of the village community and, therefore, is not part of the natural expansion of the village gaothan.

6. The petitioner contends that CRZ Notification was specifically issued to protect coastal areas upto 500 mts. of the High Tide Line (hereinafter for brevity's sake, referred to as 'HTL'). Construction activity and development work of any type was, therefore, severely restricted in CRZ areas. For the purpose of encouraging tourism an exception was made for construction of resorts and these were permitted in stipulated areas of CRZ III after obtaining approval from respondent No. 3 (Ministry of Environment and Forests) and subject to certain conditions. Realizing that a total ban on construction for non-tourism purposes would cause hardship to local residents, who might be residing within 500 mts. of the HTL and who would need to construct/reconstruct dwellings, to allow for natural expansion of their families, CRZ Notification permitted residential construction in CRZ III 'so long as it was within the ambit of traditional rights and customary uses, such as existing fishing villages and gaothans'. The petitioner contends that since the construction is a tourism project, prior permission for the same must be obtained from respondent No. 3 prior to construction and that no such prior permission has been sought or obtained by respondents No. 6 and 7 for this project. The petitioner further submits that respondent No. 3 being bound by the CRZ Notification, it would not be able to grant permission for a resort on the said plot because the area is covered by sand dunes. The petitioner, therefore, submits that the approvals granted to the project of respondents No. 6 and 7, are illegal, void and ultra vires the CRZ Notification. It is submitted by the petitioner that no site inspection was carried out and the permissions were granted without there being any query from any quarter and that permission from the respondent No. 1 has been obtained through the intervention of an influential person in the Cabinet. It is also submitted that part of the dune has already been damaged.

7. From the proceedings, it appears that by its order dated 8th November, 1996, this Court granted interim injunction to the petitioner and the construction of the project 'Sunset Dunes' of respondents 6 to 8 was stayed and status quo was ordered to be maintained. Thereafter it appears that respondents No. 6, 7 and 8 submitted revised proposal with some modification in the plan and for the revised proposal also, all the necessary permissions were granted by the relevant authorities. The petitioner then amended its petition challenging these permissions granted to the revised plan also on similar grounds. It is, therefore, prayed by the petitioner that permissions dated 27th November, 1995, 26th February, 1996 and 11th April, 1996, and subsequent clearance including the environmental clearance dated 28th April, 1999, be quashed and set aside and respondents Nos. 1 to 4 be directed to demolish and remove the construction erected on the said plot of land and restore the sand dunes thereon.

8. On behalf of the respondent No. 1, G.S.C.Z.M.A., affidavit dated 25th September, 1996, has been filed which states as follows :

9. The stretch of Baga-Calangute-Candolim, has been classified as CRZ II, except the Fort area of Aguada in Candolim, which is classified as CRZ I in the Coastal Zone Management Plan for Goa prepared and submitted to the Ministry of Environment and Forests, Government of India, New Delhi, in accordance with the directions of the Supreme Court. The basis for classification of this area as CRZ II in the approved State Coastal Zone Management Plans for Goa is as per the guidelines laid down in the CRZ Notification in as much as the area is a Census Town and substantially developed and built up to and close to the shoreline with all infrastructural facilities. The portion of the property which is the subject matter of this petition is within 200 mts. from the HTL and the remaining portion is within 200 - 500 mts. from the HTL. In respect of the area within 200 mts. from the HTL, no permission has been granted by respondent No. 1 in respect of the portion of the property beyond 200 mts. and upto 500 mts. from the HTL the proposals for construction of residential units submitted has been approved by adopting the criteria laid down for CRZ III, in order to ensure better protection of environment notwithstanding the fact that this area is classified as above as CRZ II. The proposal/plans in respect of the subject matter of this petition has been approved by excluding the sand dune area. While approving the above proposal a specific condition was inter alia imposed, namely that existing sand dunes should not be disturbed in any case. The above plot which is the subject matter of this petition is otherwise not a vacant plot in as much as there were and continue to be residential house in the said property.

10. The Joint Director of respondent No. 3 has also filed two affidavits, one to the original petition and another to the amended petition, wherein it is submitted that the environment clearance dated 28th April, 1999 to the project (revised) was issued by the Ministry after the same was duly examined by the Expert Committee from all the relevant environmental aspects and also after site visit carried out by the Ministry during January 13th/14th 1999. It is also submitted that the project area falls under CRZ III category as per the information furnished by the State Government while forwarding the proposal to the Ministry for environmental clearance. It is further submitted that as per the Approved Coastal Zone Management Plans for Goa, the Calangute areas has been categorized as CRZ III, except sand dunes, which are classified as CRZ I. CRZ area on the project site falls under CRZ III category, except the sand dunes existing in the project area which are categorized as CRZ I and are required to be protected. Necessary safeguards to protect the existing sand dunes have already been imposed by the Ministry of Environment and Forests in their clearance letter. It is submitted that even if the plot is partly vacant, construction of a beach resort in CRZ III area required prior permission from the Ministry of Environment and Forests. It is further submitted that initially the proposal was cleared as a residential building by the State Government, based on the categorisation of this area as CRZ II and the construction had started. However, it was subsequently categorized as CRZ III and the building was proposed to be used as time share resort. Accordingly, the State Government had forwarded the proposal to the Central Government for environmental clearance. The Committee, after examining the necessary environmental issues and suggesting the necessary protection measures, recommended the proposals for environmental clearance. The Ministry after making the necessary site visit issued the environmental clearance to the project.

11. The Sarpanch of the Village Panchayat of Calangute, in his affidavit dated 23rd September, 1996, has submitted that the Panchayat has been strictly enforcing the CRZ Notifications issued from time-to-time. It is further submitted that Baga Calangute falling under the Panchayat of Calangute is a substantially developed area, developed close to the shore line and has been legally designated as an 'urban area' as per the Census of India 1991. It is submitted that Baga Calangute area has been substantially developed, built up with houses, hotels, restaurants and is provided with infrastructural facilities such as approach roads, water supply, electricity, shops and drainage, culverts, etc. It is further submitted that the project of the respondents No. 6 to 8 has been approved after being satisfied that all the criteria of CRZ III area were adhered to. It is submitted that the Goa State Coastal Committee on Environment cleared the proposal of respondent No. 6 by its order dated 27th November, 1995 and the Panchayat after serving the sanad issued by the Dy. Collector and the clearance given by the Goa State Coastal Committee on Environment, so also after getting the requisite, N.O.C. from the local health authorities of the Primary Health Centre, Candolim, communicated under letter dated 1st April, 1996, granted permission on 11th April, 1996.

12. It is further submitted by respondent No. 4, Sarpanch of Panchayat that site permission was granted. It is submitted that site inspection was conducted twice before granting permission and it was observed that in accordance with the survey plan there were five existing houses on the said plot bearing House Nos. C-128/115, C-128/116, C-128/117, C-128/118 and C-128/119 and that people were residing in the said house. It is also submitted that when he visited the site on 5th September, 1996, he found that the sand dunes had not been destroyed, nor the construction was coming up on the sand dunes. It is further submitted that respondents No. 6 to 8 were constructing on the part of the plot of land which did not affect the dune and the sand dune had been protected and not destroyed by respondents No. 6 to 8. All the vague allegations made against the respondent No. 4 of having approved the project of the respondents No. 6 to 8 and about granting permission without considering the provisions of the CRZ Notification are denied. It is submitted that no case was made out by the petitioner and the writ petition should be dismissed.

13. On behalf of the respondent No. 6, the Executive Director of respondent No. 6 company, namely Piva Resorts Pvt. Ltd., has also filed two affidavits, one to the original petition and the second one to the amended petition. It is specifically averred that the sand dune which is presently existing is on the corner of the plot and has already been protected and is not disturbed by the present construction. It is also pointed out that all the concerned authorities have granted permission for the said construction after scrutinizing the proposal carefully. In the additional reply which is filed to the amended petition, it is stated that the revised proposal was cleared by all the concerned authorities including the Ministry of Environment and Forests, after satisfying themselves. It is pointed out that site inspection was carried out on 13th/14th January, 1999, prior to issuance of environment clearances. Besides, existence of sand formation or sand dunes have been shown by respondent No. 6 in its revised plan and that Clause (XVI) of the annexure to the environment clearance requires that sand dunes on the site should not be disturbed in any way. It is also submitted that the HTL is marked on the plans by the authorities concerned on the basis of the maps prepared by the Naval Hydrographer. It is submitted that it was only by way of abundant caution that it was decided by the G.S.C.C.E. upon discussion that 30 mts. line from the plot boundary on the seaward side may be safely taken as HTL and for this reason the HTL marked in the earlier plan is about 20 mts. in- land. It is further submitted that at the time of grant of approval of the revised plans the HTL had been marked by the authorities relying upon the marks prepared by the Naval Hydrographer and consequently, the same appears about 20-22 mts. towards the seashore. Without prejudice it is submitted that in case there is even an iota of doubt in the matter of demarcation of the HTL, respondent No. 6 is ready and willing to shift the construction of the swimming pool from the said area. It is further submitted that the construction of the building is clearly beyond 200 mts. of the HTL as demarcated in the earlier plan as also in the revised plans. It is also submitted that the said plot is not a vacant plot in view of the existence of five structures thereon. It is submitted that the revised plan was submitted with the leave of the Court, which was approved by all the authorities concerned, including the Ministry of Environment and Forests, which granted environmental clearance dated 28th April, 1999 and, therefore, it was not proper for the petitioner to challenge the decisions taken by all the concerned authorities, including the expert bodies.

14. The affidavit of respondent No. 8, who is one of the co-owners of the property on which the beach resort was coming up, is also on similar lines. Thus, all these respondents have prayed that the petition be dismissed.

15. Mrs. Norma Alvares, learned Advocate appearing for the petitioner, drew our attention to some relevant dates, so also the CRZ Notification dated 19th February, 1991, including its Annexures, as amended on 18th August, 1994, 18th April, 1996, 31st January, 1997 and 9th July, 1997, so also the Approved Goa State Coastal Zone Management Plan dated 27th September, 1996. She submitted that CRZ Notification dated 19th February, 1991, lays down prohibited activities and with respect to these activities, Clauses (xi), (xii) and (xiii) are relevant for the purpose of this petition. They are reproduced below :---

'....... (xi) construction activities in ecologically sensitive areas as specified in Annexure I of this Notification ;

(xii) any construction activity between the LTL and HTL except facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipeline and facilities essential for activities permitted under this Notification; and

(xiii) dressing or altering of sand dues, hills, natural features including landscape changes for beautification, recreational and other such purpose, except as permissible under the Notification.'

16. Mrs. Alvares drew our attention to Annexure I and the classification of CRZ I. Category I (CRZ-I) lays down as follows :---

'(i) Areas that are ecologically sensitive and important, such as national parks, marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historically/heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.

(ii) Area between the Low Tide Line and the High Tide Line.'

17. Mrs. Alvares also drew our attention to the following clause under the heading 'Norms for Regulation of Activities :---

'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 ;...........................................................................................'

She submitted that what is listed under 2(xii) is the prohibited activity which is mentioned above, i.e. dressing or altering of sand dunes, etc.

18. Mrs. Alvares thereafter drew our attention to Category - II (CRZ-II) which reads as follows :---

'The areas that have already been developed upto or close to the shore line. For this purpose, 'developed area' is referred to as that area within the Municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains.'

19. In the norms of regulation of activities, as far as CRZ-II is concerned, the Notification lays down as follows :---

'CRZ-II :

(i) Buildings shall be permitted only on the landward side of the existing road (or roads approved in the Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio :

provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads proposed in the approved Coastal Zone Management Plan) which are constructed on the seaward side of an existing road).

(ii) Reconstruction of the authorised buildings to be permitted subject to the existing FSI/FAR norms and without change in the existing use.

(iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style'.

20. Mrs. Alvares also drew our attention to Category III (CRZ-III) and the norms for regulation of activities, which reads as follows :

'Areas that are relatively undisturbed and those which do not belong to either Category I or II. These will include coastal zones in the rural areas (developed and undeveloped) and also areas within Municipal limits or in other legally designated urban areas which are not substantially built up.'

21. In the norms of regulation of activities what is laid down with respect to CRZ-III is as follows :---

'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 exceedings 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 500 metres of High Tide Line in designated areas of CRZ-III with prior approval of Ministry of Environment and Forests (MEF) permitted for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines to Annexure II.

(iii) Construction/reconstruction of dwelling units between 200 and 500 metres of the HTL, permitted so long as it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 per cent of the plot size; the overall height of construction shall not exceed 9 metres and constructions shall not be more than 2 floors (ground floor plus one floor).'

22. Mrs. Alvares also brought to our notice the Approved State Coastal Zone Management Plans dated 27th September, 1996, the General Conditions mentioned therein, the Special Conditions with respect to all the talukas of Goa, etc. Clause (xv) of the General Conditions says that 'sand dunes will be classified as CRZ I'. The Special Conditions with respect to Bardez Taluka, in which Calangute area with which we are concerned in the present writ petition falls, is classified as CRZ III, except sand dunes, which are classified as CRZ I.

23. Highlighting these features of the Approved State Coastal Zone Management Plans, Mrs. Alvares submitted that the plot of land on which the proposed beach resort is coming up, though classified as CRZ III, because of the admitted existence of sand dunes on the said plot of land, the said area is classified as CRZ I in view of Clause (xv) of the General Conditions of The Approved State Coastal Zone Management Plans with respect to Goa State. She argued that in view of this clear legal position, the permissions granted by the relevant authorities, including the Ministry of Environment and Forests, were contrary to law and, therefore, the partly constructed beach resort is in total violation of the CRZ Notification and the Approved State Costal Zone Management Plans and hence it should be demolished. She also highlighted that prior approval of the Ministry of Environment and Forests was not taken by respondents No. 6 to 8 and the clearance to the project was given ex post facto, which was illegal. She also submitted that in the revised plan the HTL is not marked and that actually the revised plan is only redrawn and the sand dune which admittedly exists there is in fact encircled on all three sides, which amounts to destruction of the sand dune. She argued that hence, there is violation of the Approved State Costal Zone Management Plans and hence, all the permissions given by the relevant authorities are illegal. In short, it is the argument of Mr. Alvares that as per the CRZ Notification, Annexure II, Clause (ib) says that 'no flattening of sand dunes shall be carried out'; that even as per the Approved State Coastal Zone Management Plans, Calangute areas is classified as CRZ III, except sand dunes, which are classified as CRZ I and that the construction of the beach resort belonging to respondents No. 6 to 8 on which, admittedly, there is a sand dune, is illegal and in total violation of the E.P.A., CRZ Notification and the Approved State Coastal Zone Management Plans for Goa. It is, therefore, her contention that the said construction which was stayed by the impugned order of this Court on 8th November, 1996 and all the permissions granted by the relevant authorities be quashed and set aside and the construction should be demolished.

24. On the other hand, Mr. Chagla, the Senior Counsel appearing for the respondents No. 6 to 8, countered the argument of Mrs. Alvares by submitting that all the concerned authorities had granted the required permissions, to the original plan as submitted by the respondents No. 6 to 8, so also to the revised plan subsequently submitted with the leave of the Court, after considering the relevant material on record, after site inspection and after taking into consideration the relevant provisions of law with respect to environment, the CRZ Notification so also the Approved State Coastal Zone Management Plans for Goa. Mr. Chagla submitted that the authority and power of this Court under Article 226 of the Constitution of India for judicial review of the decisions arrived at by the competent authorities and expert bodies is very limited. He submitted that in the absence of allegations of mala fides which is absent here and without challenging the decisions making process, the petitioner is not entitled to challenge the decisions simpliciter, when, in fact, they have been taken by the competent authorities in due discharge of their functions.

25. To buttress his argument Mr. Chagla relied upon the decision of the Supreme Court in Tata Cellular v. Union of India, reported in : AIR1996SC11 . Mr. Chagla submitted that judicial review by the Court is permissible only in respect of the decision making process and the merits of the decision itself is not reviewable as the Court does not sit in appeal over those decisions while exercising power of judicial review. Highlighting the principle laid down by the Supreme Court in Tata Cellular (supra), Mr. Chagla submitted that the duty of the Court is to confine itself to the question of legality and its concern should be restricted only to the following, namely :-

1. Whether a decision making authority exceeded its powers ?

2. Committed an error of law,

3. Committed a breach of the rules of natural justice,

4. Reached a decision which no reasonable Tribunal would have reached or,

5. Abused its powers.

26. He submitted, pointing out para 77 of the decision of the Apex Court in Tata Cellular (supra), that it is not for the Court to determine whether a particular policy or particular decision taken in fulfilment of that policy is fair and that the Court is only concerned with the manner in which those decisions have been taken. Mr. Chagla also drew our attention to the quotation from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation 1948(1) K.B. 223 : 1947(2) All.E.R. 680, which reads as follows :

'The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matter which they ought not to have taken into account, or conversely, have refused to take into account or neglected to take into account matter which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere. The power of the Court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which Parliament has confided in them.'

27. Highlighting this 'Wednesbury principle', Mr. Chagla submitted that it is not the function of a Judge to act as a super board or a pedantic school master substituting its judgment for that of the administrator. He also drew our attention to the following paragraph reproduced by the Supreme Court in Tata Cellular's case (supra) at page 681 :---

'The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non expert Judge. The alternative is for the Court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a Court were to review fully the decision of a body such as 'State board of medical examiners' it would' find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeial'. Such a situation as a State Court expressed it many years ago is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question.'

28. Mr. Chagla submitted that the Courts will, if called upon, act in a supervisory capacity and they would see that the decision making body has acted fairly. The Courts would ensure that the body acts in accordance with the law. If the decision making body comes to its decision on no evidence, or comes to an unreasonable finding --- so unreasonable that a reasonable person would not have come to it --- then again the Courts will interfere. If the decision making body goes outside its powers or misconstrues the extent of its powers, then too the Courts can interfere. And, of course, if the body acts in bad faith or for an ulterior object, which is not authorised by law, its decision will be set aside.

29. Coming to the facts of the case in hand, Mr. Chagla submitted that all the relevant competent authorities i.e. respondent No. 1, namely the Goa State Coastal Committee on Environment, which is a body of experts on the subject of environment, respondent No. 4, namely, the Village Panchayat of Calangute, respondent No. 5 i.e. the Dy. Collector, (North Goa), so also the State of Goa and the Ministry of Environment and Forests, have all granted the required permission and there is no reason to come to the conclusion that all of them acted unreasonably, unfairly or without there being any material before them. The proposal of respondents No. 6 to 8 was sanctioned after considering all the relevant material on record, after due application of mind, after considering all the relevant provisions of the concerned enactment, namely E.P.A. CRZ Notification, Approved State Coastal Zone Management Plans with respect to the State of Goa and the guidelines given by the Supreme Court from time-to-time. Mr. Chagla pointed out that it is significant that no mala fides are attributed by the petitioner to these authorities. What is alleged is that simpliciter the permission granted by these authorities were in contravention of the law and, therefore, the construction is illegal and hence, it be demolished. Mr. Chagla submitted that it is too much to make such a statement unless there is a specific allegation (which is not made), that all these authorities had conspired together with a definitely pre decided intention to give advantage to respondents No. 6, 7 and 8 to the detriment of the interest of the citizens at large.

30. Mr. Chagla also submitted that initially when the proposal was submitted the plot in question was in CRZ II for which no permission of the Ministry of Environment and Forests was required and that it was only after the interim order was passed by this Court on 8th November, 1996 and by way of abundant caution, and after obtaining the necessary leave from the Court that respondent No. 6 submitted revised proposals and sought for and obtained clearance of the concerned authorities including the Ministry of Environment and Forests. He submitted that as per the records and the factual position, the plot is not a vacant plot of land. He also submitted that in the plot in question, there is only one sand formation which can be called as sand dune and that all of the authorities have granted the required permission, incorporating a specific clause enjoining duty upon respondents No. 6 to 8 to protect the said sand dune and not to disturb it. He submitted that the construction of the building was clearly beyond 200 mts. of the HTL as demarcated in the earlier plans and also in the revised plans. He submitted that site inspection was carried out by the Ministry of Environment and Forests on 13th/14th January, 1999, prior to the issuance of the environment clearance; that there was a mention of the sand dune area on the said plot of land and that no disturbance was being caused, or would be caused to the said sand dune area by respondents No. 6 to 8.

31. Mr. Chagla further argued that in fact, all the averments which are made by the petitioner in this petition are now adjudicated upon by the Apex Court in another petition filed by the very same Goa Foundation v. Diksha Holdings Pvt. Ltd. & ors. 2001(1) Bom.C.R. 639. He submitted that in this judgment delivered by the Supreme Court on 10th November, 2000, in Civil Appeal No. 401 of 2000, the Supreme Court has discussed and has finally decided on the very same submissions with respect of CRZ I, sand dunes, etc. which are also the main contentions of the petitioner in the present petition. He submitted that in the said Diksha Holding case the Supreme Court upheld the judgment of this Court dated 8th October, 1999, and the writ petition filed by the present petitioner, namely Goa Foundation, came to be dismissed. He submitted that in that petition also it was the contention of the petitioner that the plot of land situated in the area of Nagordem of Taluka Canacona, Goa, was coming within CRZ I and, as such, it was not permissible to have any construction on the said plot of land. It was contended in that petition also that the plan and sanction obtained for such construction from the competent authority were in contravention of the provisions of the E.P.A. and such permission had 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 Holding Pvt. Ltd. from constructing the proposed hotel on the disputed plot of land. It was also contended in that writ petition that there existed a large number of sand dunes and by permitting the respondent hotelier to have a hotel complex on the plot of land it would ultimately lead to irreversible ecological damage of the coastal area and therefore, the Court should prevent such construction.

32. Mr. Chagla further argued that this 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 of Goa. It also took into account several Acts and Regulations like the Town and Country Planning Act, CRZ Notification and the Coastal Zone Management Plans. It also took into account the approval of the Ministry of Environment and Forests under which the disputed hotel complex was coming up. The Court also took into account the expert committee recommendations, recommending the hotel project for environmental clearance indicating therein that the existing sand dunes would not be disturbed in any manner. This Court came to the conclusion, after hearing both the sides, that the appropriate authority had accorded permission for construction of the hotel on the disputed site, after consideration of the relevant and germane materials and that the writ petitioner, namely Goa Foundation had failed to establish any illegality in the matter of grant of such permission. The Court recorded a finding that the said authorities as well as the Central Government were aware of the existence of sand dune formations upto 200 mts. stretch from the shoreline where no construction was permitted and beyond the said 200 mts. stretch within which the hotel complex was proposed to be built up was under CRZ III and, as such, there was no prohibition for construction of the hotel within that area. This Court accordingly dismissed the writ petition filed by the Goa Foundation. Mr. Chagla then submitted that the Supreme Court upheld the judgment of this Court. It was observed by the Supreme Court that it saw no infirmity in the said grant of clearance, nor was it in a position to hold that the conclusions of the competent authority were based on non-consideration of any relevant and germane materials. Mr. Chagla pointed out that the Supreme Court, in Diksha Holdings case stressed upon the balancing interest of the State in encouraging tourism, which is a source of revenue for the State and the protection of the environment.

33. Mr. Chagla submitted that the facts of Diksha Holdings case, the averments made therein and the prayers sought therein are same as in the present writ petition. He totally relied upon the Supreme Court judgment in Diksha Holdings case (supra) and submitted that the Diksha Holdings case is a complete answer to all the averments made by the petitioner in the present petition also. He therefore submitted that the petition be rejected.

34. We also heard Mr. J. Vaz, learned Additional Central Government Standing Counsel, for the respondent No. 3, so also Mr. P. A. Kamat, Advocate for the respondent No. 4, who have practically adopted the arguments of Mr. Chagla. No new point was canvassed.

35. We have heard all the Advocates at length. We also perused the relevant provisions of the E.P.A., the CRZ Notification dated 19th February, 1999, alongwith its Annexures, so also the Approved State Coastal Zone Management Plans with respect to the State of Goa. We have also gone through the entire judgment dated 10th November, 2000 of the Supreme Court in Civil Appeal No. 401 of 2000, i.e. Goa Foundation v. Diksha Holdings Pvt. Ltd. others 2001(1) Bom.C.R. 639. We find that indeed the said Diksha Holdings case covers the averments as made in the present petition also. The factual situation and the prayers are identical. The decision and the observations made therein by the Supreme Court with respect to CRZ I and the sand dunes are binding on this Court.

36. Incidentally, Mr. Chagla also brought to our attention the distinction between the words 'sand dune' and 'sand dune area' and submitted that 'sand dune' is clearly marked as CRZ I, but the entire area on which the sand dune is found to be in existence is not to be treated as CRZ I. We find that there is some force in what he has submitted.

37. We are in complete agreement with the learned Counsel appearing for the respondents No. 6 to 8 as far as his submissions on the point of power of this Court on the scope of judicial review is concerned. In Sadanand S. Varde & others v. State of Maharashtra & others, reported in : [2001]247ITR609(Bom) (to which one of us, Dr. Upasani, J. was a party), this Court has dealt with the scope of judicial review. It has been observed in the said case (supra) as follows :---

'......... Doubtless, judicial review has been held to be a basic feature of the Indian Constitution and the power of the constitutional Courts, whether they be High Courts exercising jurisdiction under Article 226, or the Supreme Court under Article 32, is, virtually limitless except for self imposed limitations in the interest of administration of justice and the dictates of prudence. A Public Interest Litigations is not adversary in nature, but is intended to focus the public interest aspect before the Court. If the Court is apprised of substantial injury to public interest, the Court is empowered and duty bound to interfere to do justice to the inarticulate public whose interest is projected as affected. Despite the awesome powers available in writ jurisdiction, the Court have constructively bridled this power and deferred to experts in matters of public interest where, in view of the amplitude of complexity and technical nature involved, a judicial proceedings in the nature of a writ petition would be wholly inappropriate for determination of the issues thrown up. Policy matters have also been rightly left for the public authorities to decide and the final say in such matters should normally not come within the purview of judicial review.'

38. In view of the above discussion, we are unable to come to the conclusion that all the authorities concerned who granted permission to the respondents No. 6 to 8 for construction of the beach resort have acted in unison and in total violation of law. Admittedly, no mala fides as such are attributed to these authorities. Only the merit of the decisions given by these authorities is challenged and not the decision making process. Therefore, in view of the salutary principle laid down by the Supreme Court in the case of Tata Cellular (supra), we are unable to enter into the arena of the merits of the decision, keeping in mind the limitations and keeping in mind that the petitioner has not been able to bring its case within the exception to those limitations.

39. As such, there cannot be any doubt that there should be a sustainable development and there should be a (sic) and harmonious co-existence of nature's bounty and mankind's development. One should not suffer or be sacrificed at the cost of the other. It should never be forgotten that man only holds leasehold rights on this Earth and posterity should not be deprived of the pristine glory of the Earth. As far as the State of Goa is concerned, the entire coastline is filled with sand dunes. Sand dunes do play a key role in protection of the hinterland, in as much as the sand dunes as sentinel against any destructive cyclones, rising water level of the sea due to global increase in temperature. Sand dunes also play an important role in protecting the agricultural and the potable water supply of the hinterland coming from springs and wells. Sand dunes are thus purely nature's gift to the coastal regions Their protection is, therefore, absolutely necessary and they are rightly placed in CRZ I category. At the same time, it cannot be forgotten that we have come a long way since the Stockholm Conference of 1972. Tourism all over is a flourishing industry and a major source of revenue for the State. The balancing interest, therefore, between the preservation of ecology and environment and development of tourism has to be harmoniously maintained.

40. In view of the above discussion, we are unable to uphold the contentions of the petitioner, though we do admire the petitioner's sincere effort to preserve the ecology and scenic beauty of this beautiful coastal State. The petition, however, for the aforesaid reasons fails. Hence the following order:-

Writ Petition No. 319/96 is dismissed. Rule discharged. Interim order dated 8th November, 1996, stands vacated.

41. On the request of Mrs. Alvares, the order is stayed for ten weeks. Certified copy expedited.