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2009 DIGILAW 401 (BOM)

Atmaram Gopal Parab v. Alcon Cement Co.

2009-03-24

P.B.MAJMUDAR, U.D.SALVI

body2009
P.B. MAJMUDAR, J.:- It is agreed by both sides that the matter may be heard finally at the stage of admission. The matter is accordingly, heard at great length and is being disposed off by this Judgment. Accordingly, formal order of Rule is passed. Respective Counsel for the respondents waive service. 2. The construction of a jetty at Kothambi (Taixem). in Bicholim Taluka, in violation of CRZ-III Notification is the subject-matter of this public interest litigation. The petitioner, Atmaram Gopal Parab, addressed a letter to this Court on 23.11.2007, alleging that the Government of Goa and its various Departments have given NOCs to M/s. Alcon Cement Company Private Limited for construction of the jetty in question, without proper inquiry as to congestion in barge traffic, environmental damages and pollution aspects. amongst other points. It is alleged in the said letter that the jetty is being constructed by flouting all the rules, regulations and directions of the Captain of Ports. CRZ Authorities and Government of Goa ete. Along with the letter, some photographs were also annexed. By the said letter, the petitioner requested this Court to intervene in the matter. On the basis of the said letter, the In-charge Registrar prepared a note and ultimately, the letter was ordered to be treated as Public Interest Litigation and the author of the letter Shri. Atmaram Gopal Parab has been shown as the petitioner. By order dated 10.12.2007, notices were issued to the concerned respondents. By order dated 21.1.2008. Advocate D. Pangam was requested to appears as an amicus curiae. Thereafter, Mr. A.D. Bhobe put in his appearance on behalf of the petitioner. 3. The question which requires consideration in this PIL writ petition is as to whether the construction of jetty in question is in violation of CRZ Notification? According to tile petitioner, the said jetty has been constructed by respondent No.1 without valid permissions and that the construction of the jetty is not permissible in CRZ-III as per the Regulations in connection with CRZ-III. According to the petitioner, unless environmental clearance is obtained from the Ministry of Environment & Forests ("MOEF" for short). Government of India. New Delhi for construction of a jetty, respondent No.1 cannot be permitted to operate the jetty, in question. It is the case of the petitioner that the construction of the jetty is prohibited under the said Regulations. According to the petitioner, unless environmental clearance is obtained from the Ministry of Environment & Forests ("MOEF" for short). Government of India. New Delhi for construction of a jetty, respondent No.1 cannot be permitted to operate the jetty, in question. It is the case of the petitioner that the construction of the jetty is prohibited under the said Regulations. In order to substantiate his case, the petitioner has relied upon the Notification dated 19th February, 1991, which is issued under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act. 1986 and Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986. It is submitted on behalf of the petitioner that if the jetty is required for the purpose of water front and foreshore facilities. then under Regulation 3(2), environmental clearance from the MOEF will have to be obtained. It is also the grievance of the petitioner that an area upto 200 metres from the High Tide Line (HTL) has to be earmarked as No Development Zone and construction of a jetty is as such prohibited in CRZ-III. 4. On 26th March, 2008, a Division Bench of this Court passed the following Order. "The learned Advocate General has placed on record the Sounding Plan which has been prepared by the Office of the Captain of Ports in relation to the relevant area near the proposed jetty. The same apparently discloses that the navigability in the river is to the extent of width of more than 100 meters near the proposed jetty. The learned Advocate for the petitioner states that the petitioner wants to verify the contents of the Sounding Plan and particularly about the available navigability near the proposed jetty. 2. It is apparent that the latter petition was tiled complaining about the non-compliance of the provisions of law while granting the permission for construction of the proposed jetty. Even after issuance of the notices and filing of the affidavits by the respondents, the report which was prepared based on which the matter was sought to be argued, nowhere discloses the facts revealed from the Sounding Plan. On the contrary, the report dated 17/12/2007, supposed to have been prepared by the Surveyor did not disclose the actual navigability available in the river in question and, particularly, near the site of the proposed jetty. On the contrary, the report dated 17/12/2007, supposed to have been prepared by the Surveyor did not disclose the actual navigability available in the river in question and, particularly, near the site of the proposed jetty. It merely stated that the average width of the navigational lane is approximately 1/3rd the width of the river and since the width of the river is about 100 meters, the navigability would be 35 meters. It was known to the Surveyor that the proposed jetty will have length of about 17 meters. Apparently, the report was prepared without taking into consideration the factual aspect of the site near the proposed jetty. Apart from the said point relating to the navigability in the river, and the respondents having filed affidavits along with the Government, disclose necessary licensees stated to have been issued, the petitioner has not been able to point out any provision of law which could be said to have violated, either by granting permission or while obtaining the permission for construction of the proposed jetty. 3. At the request of learned Counsel for the petitioner, however, we are inclined to grant last opportunity to the petitioner to verify the contents of the Sounding Plan. It is however made clear that in case the petitioner fails to satisfy the Court about any violation of the provisions of law in relation to the construction of the proposed jetty, the petitioner will have to pay exemplary costs. 4. S.O. 7/04/2008." Since respondent No.1 pointed out to the Court that in the same vicinity some other jetties are also operating, this Court directed the additional parties to be joined as respondents and accordingly, respondents No.5 and 6 have been joined subsequently in the present proceedings. This Court, at that stage, also granted interim relief, directing respondent No.1 to maintain status quo as regards the construction of the jetty in question and further observed that if it is already constructed, the same shall not be put in use. 5. On 23.7.2008, this Court permitted the petitioner to implead M/s. D.B. Bandodkar and Sons Pvt. Ltd. as an additional respondent. The said respondent was ordered to be joined in view of the submission made on behalf- of respondent No.1 that three more jetties which have been constructed within the vicinity of the jetty; in question arc also put in operation. 6. The said respondent was ordered to be joined in view of the submission made on behalf- of respondent No.1 that three more jetties which have been constructed within the vicinity of the jetty; in question arc also put in operation. 6. On 9.9.2008, this Court granted leave to amend and implead the Union of India. New Delhi as Party respondent. On 24.10.2008, a grievance was made by respondent No. 1 that it~ application seeking permission for construction of the jetty is pending consideration with the MOEF and because of pendency of this petition, the Expert Committee for the infrastructure Development and Miscellaneous Projects is not considering the said application and, therefore, a clarification was sought to the effect that pendency of this petition may not come in the way of the Expert Committee in considering the application moved by respondent No.1. On behalf of the petitioner, a request was made that if respondent No.1's application was to be considered by the Expert Committee, the petitioner would be heard in the matter in that context, this Court, on the said date, passed the following order: "It is clarified that it shall be open to the Expert Committee for Infrastructure Development and Miscellaneous Projects to consider the application moved by the respondent no. I. We grant liberty to the Petitioner to approach the said Expert Committee with a request to afford an opportunity of hearing to the Petitioner while taking the decision on the application of the Respondent No.1." It is submitted that since respondent No.1 has now, obtained permission from the MOEF, the status quo granted by this Court earlier may be vacated On 20.2.2009, this Court passed an order that the matter be finally heard at the admission stage 011 25.2.2009 and. Accordingly, heard at great length. 7. Mr. Bhat, learned Senior Counsel appearing for respondent No.1 submitted that respondent No.1 has now obtained permission from the MOEF and that the jetty is permissible in CRZ III and to substantiate his say, he has relied upon the Notification in question. Mr. Ghat submitted that it is not a bonafide petition and the same is required to be dismissed. 8. The learned Advocate General, has submitted that construction, in question cannot be treated as construction of jetty, as it is offshore facilities and. therefore. it is not necessary to get permission from the MOEF. Mr. Ghat submitted that it is not a bonafide petition and the same is required to be dismissed. 8. The learned Advocate General, has submitted that construction, in question cannot be treated as construction of jetty, as it is offshore facilities and. therefore. it is not necessary to get permission from the MOEF. According to the learned Advocate General, the only permission which is required to be obtained by the concerned respondents is the permission from the Goa Coastal Zone Management Authority (for short "GCZMA") as it is a construction for the purpose of offshore facilities. The learned Advocate General submitted that so far as construction of jetty is concerned, it is only in harbour and even if it is constructed else where other than the harbour, it cannot be considered as a jetty and therefore, permissions from local authorities only arc required to be obtained. On the other issues, the learned Advocate General has supported the argument of learned Counsel Mr. Ghat and it is submitted that construction of a jetty is a permissible activity even in CRZ-III. 9. We have heard the learned Counsel at length. We have also gone through the voluminous documents forming part of the petition. 10. The principal question which is required to be considered in the present PIL Writ Petition is as to whether the construction of jetty carried out by respondent No. I can be said to be in violation of CRZ-III norms. The question which requires consideration is as to whether before constructing the jetty in question, permission from the MOEF is required to be taken? During the course of hearing, it is pointed out by respondent No.1 against whom the allegation was initially made by the petitioner that it has not obtained the requisite permission from the MOEF and that the other respondents who arc also operating jetties in the nearby vicinity have also not obtained such permission and that they have obtained permission only from the GCZMA. It is also required to be considered in view of the submission of the learned Advocate General as to whether the construction of the jetty can be said to be a jetty or other activity for offshore facilities. 11. It is also required to be considered in view of the submission of the learned Advocate General as to whether the construction of the jetty can be said to be a jetty or other activity for offshore facilities. 11. It is required to be noted that in the present petition the Court is concerned with the construction that is carried out after 19.2.1991 and the construction prior to that date is not the subject-matter of the petition. As pointed out earlier, pursuant to the letter written by the petitioner, the suo motu proceedings have been initiated by this Court and during the pendency of this petition, respondent No.1 approached the MOEF for granting permission to respondent No.1 and on 4.11.2008, the Additional Director. Ministry of Environment and Forests. Government of India, informed respondent No.1 that it should produce orders of the Court directing it to seek environmental clearance. Subsequently, the Ministry of Environment and Forests considered the proposal submitted by respondent No.1 in connection with the project of respondent no.1 pertaining to construction of twin jetty for barge loading and unloading facility and dredging the river Cotombi in survey Nos.27/15, 27/14. 27/12 and 27/9 at Tishem of Village Cotombi, Bicholim Taluka, Goa and it was communicated vide order dated 2.2.2009. It is submitted that the Expert Committee, in its meeting held on 19th and 20th December, 2008, recommended the same and. Ultimately, after considering the report of the Expet1 Committee, clearance under Coastal Regulation Zone Notification, 1991 is accorded to the said project, subject to various conditions prescribed in the said order. As per the conditions prescribed in the order, no dredging or dumping shall be carried out and no construction work other than those permitted in Coastal Regulation Zone Notification shall be carried out in the Coastal Regulation Zone area. There are general conditions which are also incorporated in the said Order. It is provided in the said order that any appeal against the environmental clearance, shall lie with the National Environment Appellate Authority, if preferred within a period of 30 days as prescribed under Section 11 of the National Environment Appellate Act. 1997. So far as the aforesaid order is concerned, the same has been passed by the MOEF during the pendency of this petition. The said order is placed on record at page 402 of the compilation. Relying on the said order of the MOEF. Mr. Bhat. 1997. So far as the aforesaid order is concerned, the same has been passed by the MOEF during the pendency of this petition. The said order is placed on record at page 402 of the compilation. Relying on the said order of the MOEF. Mr. Bhat. learned Counsel appearing for respondent No.1 vehemently submitted that nothing survives in this so called PIL Writ Petition, inasmuch as respondent No.1 has already taken permission from the MOEF. He, therefore, submitted that the status quo order granted earlier is required to be vacated. Mr. Bhat submitted that there are so many other jetties operating in the area, without getting permissions. As against that, respondent No.1 has already got permission as required by law and in view of that, respondent No.1 cannot be prevented from operating the jetty, especially when other jetties are being operated in the vicinity and that too without seeking permission from the MOEF. 12. On behalf of the petitioner, learned Senior Counsel Mr. Subramanian has submitted that even though this Court had permitted the petitioner to apply to the concerned authority, the Expert Committee did not afford any hearing to the petitioner at the time of deciding the application of respondent No.1. It is contended by Mr. Subramanian that even though the petitioner made an application on 1.12.2008 before the VIOEF, New Delhi, the petitioner was never afforded an opportunity of being heard in the matter. Mr. Subramanian further submitted that the petitioner is deprived of an opportunity of placing the correct facts before the Expert Committee. It is also submitted by Mr. Subramanian that the said clearance is not in accordance with the CRZ Notification of 1991 and, therefore, the same is illegal. It is submitted that respondent No.1 has not obtained any permission from the Ministry of Surface Transport and, accordingly, it is not in accordance with the CRZ Notification. 13. On behalf of the petitioner, an affidavit has also been filed which is at page 406 of the compilation. In para (7) of the said affidavit, it is stated that he intends to prefer an appeal before the National Environment Appellate Authority under Section 11 of the National Environment Appellate Act, 1997. According to the petitioner, the decision taken by the MOEF dated 2.2.2009 is not in consonance with the CRZ Notification. So far as the argument of Mr. In para (7) of the said affidavit, it is stated that he intends to prefer an appeal before the National Environment Appellate Authority under Section 11 of the National Environment Appellate Act, 1997. According to the petitioner, the decision taken by the MOEF dated 2.2.2009 is not in consonance with the CRZ Notification. So far as the argument of Mr. Subramanian that the Order dated 2.2.209 of the MOEF is bad in law, as the petitioner was not given opportunity of hearing is concerned, it is required to be noted that this Court by its order dated 26th March, 2008 has merely permitted the petitioner to apply to the Authority. There is no specific direction as such given to the Authority that the petitioner should be given hearing. 14. Mr. Fereira, learned Asst. Solicitor General also submitted that there is no procedure prescribed for affording opportunity to the objector, as ultimately, the decision is required to be taken on the basis of material produced on record. It is submitted by Mr. Fereira that at the time of processing the application, if the Authority is required to hear all objectors, then it may result into deciding the application as if it is a full fledged trial and that the Authority may not be in a position to dispose off the applications within a reasonable time. In our view, when the Expert Committee is required to take decisions on the basis of report of the Expert Committee and other documents on record, such proceedings are not required to be converted into full fledged suit wherein objections of anyone is required to be adjudicated, as it may delay and linger the proceedings. It is true that this Court had permitted the petitioner to apply before the Authority. However, it is clear from the order that this Court had not given any directions that the present petitioner should be heard by the Authority. Accordingly, it cannot be said that the Expert Committee or the MOEF has, in any way, violated the orders passed by this Court, as there is no any directions as such from this Court that the petitioner should be given hearing by the Authority, Considering this aspect, it is not possible to accept the submission of Mr. Subramanian that the order dated 2,2,09 is bad-in-law as no opportunity is given to the petitioner to represent his case before the Authority. Subramanian that the order dated 2,2,09 is bad-in-law as no opportunity is given to the petitioner to represent his case before the Authority. If the petitioner has any grievance against the ultimate decision of the Authority, it is for the petitioner to challenge the said order by way of an appeal if any such right is available in him, in law, 15. Before dealing with the aspect as to whether the construction in question can be termed as "jetty" for which permission from the MOEF is required or can it be said to be a construction for loading and unloading facility or for other offshore facilities, it is required to be noted that respondent No, l/applicant has also applied for permission considering it to be a jetty, Apart from that, in our view, no restrictive meaning can be given so far as construction of the jetty is concerned. Collins Cobuild Colline Birmingham University International Language Database English Language Dictionary defines the word "jetty" as : "A mole, pier, breakwater, etc" constructed at a barbour entrance or running out into the sea, a lake, a river, etc" esp, for protective or defensive purposes. Also, an outwork protecting a pier. A projecting part of a wharf; a landing pier. A protecting part of a building; esp. an overhanging upper storey, A bulwark, a bastion." In fact the concerned applicant has considered it as a construction in the nature of a jetty and even the application made in this behalf refers to it as a jetty, It is, therefore, not possible to accept the submission of the learned Advocate General that the construction. in question. cannot be construed as jetty, Learned Counsel Mr. Subramanian, in his argument also submitted that even the permission was also asked by respondent No, 1 considering it to be a jetty and, therefore, it cannot be said that the construction in question is nothing but offshore facilities for loading and unloading of barges. We are not in a position to accept the submission of the learned Advocate General that the construction, in question, are the facilities for loading and unloading of barges and, therefore, the only permission that is required to be taken is from the local authorities and no permission from the MOEF is required to be obtained. We are not in a position to accept the submission of the learned Advocate General that the construction, in question, are the facilities for loading and unloading of barges and, therefore, the only permission that is required to be taken is from the local authorities and no permission from the MOEF is required to be obtained. In our view, for the construction in question which can be said to be a jetty, permission of the MOEF is required to be obtained as per law. 16. The next point which is required to be considered is as to whether the construction of the jetty carried out by respondent No.1 can be said to be in violation CRZ Notification 1991 and whether the decision given by the MOEF dated 2.2.2009 stands vitiated? As pointed out earlier, so far as respondents No.5 to 7 are concerned, their jetties are operational and functioning, but they have taken permissions from the local authorities only. No permission is obtained from the MOEF. 17. At this stage, a reference is required to be made to CRZ Notification, 1991, issued by the Ministry of Environment and Forests, issued under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986 and Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986. As per the said Notification, the Central Government has declared the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and imposed certain restrictions on the setting up and expansion of industries. operations or processes. etc., in the said Coastal Regulation Zone. 18. As per Regulation 2 of the said Notification, certain activities are declared as prohibited activities, within the Coastal Regulation Zone. Regulation 2(viii) reads as under; "2. Prohibited Activities; (viii) (Deleted) [Land reclamation, building or disturbing the natural course of sea water except those required for construction or modernization or expansion of ports. etc., in the said Coastal Regulation Zone. 18. As per Regulation 2 of the said Notification, certain activities are declared as prohibited activities, within the Coastal Regulation Zone. Regulation 2(viii) reads as under; "2. Prohibited Activities; (viii) (Deleted) [Land reclamation, building or disturbing the natural course of sea water except those required for construction or modernization or expansion of ports. Harbours, jetties, wharves, quays, slipways, bridges and sea-links and for other facilities that are essential for activities permissible under the notification or for control of coastal erosion and maintenance or (cleaning of water ways), channels and ports or for prevention of sand bars or for tidal regulators, storm water drains and structures for prevention of salinity ingress and sweet water recharge; Provided that reclamation for commercial purposes such as shopping and housing complexes, Hotels and entertainment activities shall not be permissible]." The activity as mentioned above is, therefore, a permissible activity under the said Notification. 19. Regulation 3 provides for Regulation of Permissible Activities. which reads as under: "3. Regulation of permissible Activities: All other activities, except those prohibited in para 2 above, with be regulated as under: 1) Clearance shall be given for any activity within the Coastal Regulation Zone only if it requires waterfront and foreshore facilities. [The assessment shall be completed within a period of ninety days from receipt of requisite documents and data from the project authorities and the decision shall be conveyed within 30 days thereafter]. 2) The following activities will require environmental clearance from the Ministry of Environment and Forests. Government of India, namely: (i) [Construction activities related to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential e.g., slipways, jetties, wharves, quays; except for classified operational component of Defence projects for which a separate procedure shall be followed. (Residential buildings, office buildings hospital complexes, workshops shall not come within the definition of operational requirements except in very special cases and hence shall not normally be permitted in the CRZI [(ia) the clearance granted shall be valid for a period of five years for the commencement of the construction or operation]. (ii) [(substituted) Operational constructions for ports, harbours and light houses and constructions for activities of jetties. wharves. (ii) [(substituted) Operational constructions for ports, harbours and light houses and constructions for activities of jetties. wharves. quays and slipways, pipelines, conveying system including transmission lines provided that environmental clearance in case of constructions or modernization or expansion of Jetties and wharves in the Union Territory of Lakshadweep for providing embarkation and disembarkation facilities shall be on the basis of a report of scientific study conducted by the Central Government or any agency authorized or recognized by it suggesting environmental safeguard measures required to be taken for minimizing damage to corals and associated bio-diversity]…….. (3)(ii) Within the framework of such approved plans, all development and activities within the CRZ other than those covered in para 2 and para 3(2) above shall be regulated by the State Government. Union Territory Administration or the local authority as the case may be in accordance with the guidelines given in Annexures-I and II of the Notification: and (iii) In tile interim period till the Coastal Zone Management Plans mentioned in Para 3(3)(i) above are prepared and approved, all developments and activities within the CRZ shall not violate the provisions of this Notification, State Government and Union Territory Administrations shall ensure adherence to these regulations and violations, if any shall be subject to the provisions of the Environment (Protection) Act, 1986." So far construction of a jetty is concerned, such an activity is a permissible activity as per subsection (2) of Regulation 3 of the Notification. 20. Accordingly, as per the said Regulations, permission of the MOEF is required to be taken and the Ministry is required to consider such applications on the basis of a report from the Expert Committee. The learned Asst. Solicitor General has also submitted that so far as construction of a jetty is concerned, it is one of the important and necessary facilities which is required to be provided at certain places and that it has been treated as a permissible activity, subject to certain conditions and restrictions provided under the Notification. However, Mr. Subramanian submitted that in CRZ-III even construction of a jetty is not permissible as the same falls within the No Development Zone as per Annexure J to the Notification, i.e Coastal Area Classification and Development Regulations which prescribes CRZ-I, CRZ-II, CRZ-III and CRZ-IV. However, Mr. Subramanian submitted that in CRZ-III even construction of a jetty is not permissible as the same falls within the No Development Zone as per Annexure J to the Notification, i.e Coastal Area Classification and Development Regulations which prescribes CRZ-I, CRZ-II, CRZ-III and CRZ-IV. So far as CRZ-I is concerned, the same is classified as under: "CRZ I (No new construction shall be permitted in CRZI except (a) Projects relating to Department of Atomic Energy and (b) Pipelines, conveying systems including transmission lines (deleted) (c) Facilities that are essential for activities permissible under CRZ-I. (d) [(deleted) Operational constructions of jetties, wharves, or construction, development or modernization of Jetties and wharves in the Union Territory of Lakshadweep for providing embarkation and disembarkation facilities shall he on the basis of a report of scientific study conducted by the Central Government or any agency authorized or recognized by it suggesting environmental safeguard measures required to be taken for minimizing damage to corals and associated bio diversity; and (e) i installation of weather radar for monitoring of cyclone movement and prediction by Indian Metrological Department: (f) construction or trans-harbour sea-links. Between the LTL & HTL in areas which arc not ecologically sensitive and important. the following may be permitted; (a) Exploration and extraction of Natural Gas (b) Activities as specified under proviso of [Sub-paragraphs (i) & (ii)] of paragraph 2. (deleted)] (c) Construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads. Jetties, water supply, drainage, sewerage, which arc required for traditional inhabitants of the Sundarbans. Bio-sphere reserve areas, West Bengal on a case to case basis, by the West Bengal Slate Coastal Zone Management Authority (Deleted). (d) Salt harvesting by solar evaporation of sea water;) (e) Desalination plants; (f) (deleted this part) (Storage of non-hazardous cargo such as edible oil. fertilizers. and food grain within notified ports. (g) Construction of trans-harbour sea links (deleted)." Norms for regulation of activities have been provided under Regulation 6(2). As per Regulation 6(2), no new construction shall be permitted in the CRZ-I except projects relating to Department of Atomic Energy, pipelines, conveying systems including transmission lines, facilities that are essential for activities permissible under CRZ-l, operational construction of Jetties, wharves, or construction. As per Regulation 6(2), no new construction shall be permitted in the CRZ-I except projects relating to Department of Atomic Energy, pipelines, conveying systems including transmission lines, facilities that are essential for activities permissible under CRZ-l, operational construction of Jetties, wharves, or construction. development or modernization of Jetties and wharves in the Union Territory of Lakshadweep for providing embarkation and disembark3tion facilities agency, authorized or recognized by it suggesting environmental safeguard measures required to be taken for minimizing damage to corals and associated bio diversity. There are other activities which are permitted in CRI-I with which we arc not concerned in this petition. So far as CRZ-III is concerned, sub-clause (i) provides as under: "(i) The area up to 200 meters from the HTL is to be earmarked as 'No Development Zone' (provided that such area does not fall within any notified pmt limits or any notified Special Economic Zone). [No construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing PSI, existing plinth area and existing density. and for permissible activities under the notification including facilitate essential for such activities, (omitted)] However, the following (uses/activities) may be permissible in this zone-agriculture, horticulture. Gardens, pastures, parks, play fields, forestry, projects relating to the Department of Atomic Energy) (mining of rare minerals) and salt manufacture from sea water. [facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-III appended 10 this notification and facilities for regasification of liquefied natural gas subject to the conditions as mentioned in para (2)(ii), facilities for generating power by non conventional energy sources. desalination plants, weather radars construction of airstrips and associated facilities in the islands of Lakshadweep and Andaman & Nicobar]. [(ia) Construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads and provision for facilities for water supply, drainage, sewerage which are required for the local inhabitants may be permitted, on a case to case basis by the Central Government or Coastal Zone Management Authority constituted for the State/Union Territory. Provided that construction of units or ancillary thereto for domestic sewerage treatment and disposal shall be permissible notwithstanding anything contained in sub-para (iv) of para 2 of this Notification]. Provided that construction of units or ancillary thereto for domestic sewerage treatment and disposal shall be permissible notwithstanding anything contained in sub-para (iv) of para 2 of this Notification]. [(ib) the No Development Zone may be reduced to a minimum of 50 mts" in the identified stretches of the Islands in all the Union Territory of Andaman and Nicobar Islands selected and declared by the Central Government for promotion of tourism, based on an integrated coastal zone management study conducted or commissioned by the Ministry of Environment & Forests;].” Relying on the said sub-clause, learned Counsel Mr. Subramanian submitted that the area upto 200 metres from the HTL is to be earmarked as No Development Zone, It is submitted by him that since the construction in question is carried out in the No Development Zone, as per the said Regulation the said construction could not have been carried out and no construction in the No Development Zone is permissible. However, it is required to be noted that as per sub-clause (i), no construction is permissible, except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density and for permissible activities under the notification including facilities essential for such activities. However, it is required to be noted that as per sub-clause (i), no construction is permissible, except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density and for permissible activities under the notification including facilities essential for such activities. Even under the Notification certain other actives are still permissible, Even the construction of dispensaries, schools, public rain shelters, community toilets bridges, roads, jetties, water supply, drainage, sewerages which are required for traditional inhabitants is permissible, So it is not that there is a total prohibition on any type of construction in the No Development Zone, Sub-clause (iii) of CRZ- III, IV, page 12 reads as under: "(iii) Construction/reconstruction of dwelling units between 200 and 500 metres of the High Tide Line permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans, 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 percent of the plot size; the overall height of construction shall not exceed 9 metres and construction shall not be more than 2 floors (ground floor plus one floor), (Construction is allowed 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 public rain shelters, community toilets, water supply, drainage, sewerage, roads and bridges, The said authority may also permit construction of schools and dispensaries for local inhabitants of the area, for those Panchayats the major part of which falls within CRZ if no other area is available for construction of such facilities)," 21. Clause (iii) ofCRZ-II1 deals with construction/reconstruction of dwelling units between 200 metres to 500 metres, Considering the aforesaid provision of the Regulations, in our view, the construction of jetty falls within the "permissible activities" and such a permissible activity is permitted in CRZ-llI, however, subject to other requirements i,e, taking permission from the MOEF. In the instant case, respondent No, I has now already taken such a permission and considering the said aspect, it is not possible to accept the submission of Mr. In the instant case, respondent No, I has now already taken such a permission and considering the said aspect, it is not possible to accept the submission of Mr. Subramanian that there is a total prohibition on construction of jetty in CRZIII as the area upto 200 metres is to be considered as No Development Zone. As pointed out earlier, even under the No Development Zone, there are certain activities which are permissible. Even construction of schools, community toilets are also permissible and as argued by Mr. Fereira, learned Assist. Solicitor General construction of a jetty is definitely a permissible activity, as in different parts of the Country such constructions are permissible in CRZ-III even within the No Development Zone. It is true, as argued by Mr. Subramanian that even if two views are possible, the one in favour of environment has to be accepted. In our view, it cannot be said that two views are possible on reading of the Notification. As per the notification, the construction of the jetty, as pointed out earlier, is a permissible activity and on reading of the entire notification and the clarification thereof, it cannot be said that even construction of permissible activity cannot be carried out in CRZ-III, in an area upto 200 metres from the HTL which is earmarked as No Development Zone. When an expert committee has already given its opinion on merits, such a decision cannot be substituted by this Court in the absence of any other cogent material on record. 22. The learned Counsel for the petitioner has also submitted written submissions wherein he has made reference to the provisions of CRZ Regulations. It has been mentioned in the written submissions that only an industry directly related to water front and directly is in need of foreshore activities can be allowed construction activities within the Coastal Regulation Zone. In the written submissions, it is also averred that though this Court has granted permission to approach the Expert Committee, with a request to intervene in the matter, the petitioner was not granted any opportunity of hearing. It is also submitted on behalf of the petitioner that respondent No.1 has carried out the construction first and thereafter, applied for permission by submitting its application to the MOEF. Reference is made to various Judgments. It is also submitted on behalf of the petitioner that respondent No.1 has carried out the construction first and thereafter, applied for permission by submitting its application to the MOEF. Reference is made to various Judgments. So far as the aforesaid aspect is concerned, of course, there are other jetties which are in operation, without having obtained permission from the MOEF. As against that respondent No.1 has already taken permission. 23. On behalf of the petitioner, it is submitted that even though permission is taken regarding survey Nos.27/15, 27/14, 27/12 and 27/9, respondent No.1 has carried out construction outside the aforesaid survey numbers. Respondent No.1 has denied the said allegation. It is required to be noted that there is no any material before us to come to the conclusion that the construction is carried out in violation of the permission granted by the MOEF and that the construction has been carried out beyond the permission granted by the MOEF. These are highly disputed questions, which cannot be adjudicated in this PIL writ petition. Mr. Bhat, learned Senior Counsel for respondent No.1 submitted that respondent No.1 is carrying out the construction as per the permission granted by the Authorities. If it is found that the construction is carried out in violation of the permission granted, it is for the Authorities to take out appropriate proceedings in this behalf. 24. In the written submissions, the petitioner has tried to raise certain points, which, in our view, cannot be considered to be connected with the PIL writ petition. If one goes through the written submissions, particularly para 6.2, it creates doubt as to whether it is really a genuine public interest litigation. In para 8 of the written submissions, grievance is made regarding access/road. According to the petitioner, the Captain of Ports could not have permitted the jetty when there was no road/access. It is pointed out by the learned Senior Counsel Mr. Bhat that lands of certain owners have been acquired by the Government under the Land Acquisition Act and the said land acquisition proceedings are pending in a Writ Petition filed before this Court. According to Mr. Bhat, the said land acquisition proceedings have been tiled by the petitioner at the behest of some of the land owners whose land is sought to be acquired. However, it is not necessary to consider this aspect. According to Mr. Bhat, the said land acquisition proceedings have been tiled by the petitioner at the behest of some of the land owners whose land is sought to be acquired. However, it is not necessary to consider this aspect. especially when the challenge to land acquisition proceedings is the subject-matter of the other writ petition. 25. Mr. Bhat has relied upon certain averments made by the petitioner at the time of submitting representation before the Authority. A perusal of the copy of the said representation of the petitioner would reveal that some of the averments cannot be treated as averments regarding public interest and that the same arc neither in connection with any public issue nor in connection with any environment issue. It is also required to be noted that the petitioner submitted the application before the Expert Committee which is annexed at Annexure P-l and same is at page 412 of the compilation. In para 6 of the said application, it is stated: "It is the case of the Applicant that the, construction of Twin Jetties for barge loading and unloading facility and dredging the river at Cotombi in survey nos.25/15, 27/14, 27/12 and 27/9 at Tishem of Village Cotombi would cause/create navigational hazard to the existing Jetties in the said vicinity and is likely to cause constant accidents keeping in view the size of the present day barges: that M/s. Alcon Cement Company Pvt. Ltd. have been misleading the authorities by inter alia contending that they have permissions from the Captain of Ports. State of Goa and permissions from the Coastal Zone Management Authority, State of Goa." However, since the issue ultimately which is brought before us is in connection with the environmental aspect, which was initially brought to the notice of this Court by the petitioner by writing a letter and was converted into suo motu proceedings, we have accordingly examined the said issue on its own merits. 26. On behalf of the petitioner, reference is made to the decision of this Court in the case of Mrs. Ameeta Shah, Colaba Vs. State of Maharashtra (PIL Writ Petition No.2163 of 2002) decided on 10.4.2003, wherein this Court had directed the concerned respondent to approach the MOEF for approval of altered plan. 26. On behalf of the petitioner, reference is made to the decision of this Court in the case of Mrs. Ameeta Shah, Colaba Vs. State of Maharashtra (PIL Writ Petition No.2163 of 2002) decided on 10.4.2003, wherein this Court had directed the concerned respondent to approach the MOEF for approval of altered plan. In the aforesaid case, the Division Bench of this Court, in para 30, observed that the proposed construction was being carried out by using FSI was of a ground floor and four upper floors and the same was not carried out on the permitted location. In the said case, the location of the building was altered to an adjoining plot and there was also increase in the height of the structure and number of storeys. Under such circumstances. this Court in para 44 of the Judgment observed that it would be appropriate and proper if the issue was directed to be referred to the MOEF in view of the facts of the said case. In the aforesaid case, as pointed out earlier, the construction was modified on the basis of the plan which was earlier submitted and on the basis of which approval was granted. Relying on the same, it is submitted by Mr. Subramanian that the mailer may be sent back to the MOEF However, we do not find any justification for sending the matter back to the MOEF and we arc not impressed by the argument of Mr. Subramanian that unless hearing was given to the petitioner, the Department could not have passed the order dated 2.2.2009. Reference is also made by the learned Counsel for the petitioner to the decision of this Court in the case of Gulf Goans Hotels Co. Ltd. and anr. Vs. Union of India, reported in 2000(2) Goa L.T. 187. In the aforesaid mailer, the petitioners (in W.P. No.212/92) had challenged the directions of the MOEF dated 21.5.1991, to demolish the construction which had been undertaken in contravention of the Environment (protection) Act and guidelines laid down for development of Beach Resorts: to stop withdrawal of ground water within 500 metres or HTL and to stop extraction of sand within 5 metres of HTL even within their plot area. The concern hotel owner approached this Court challenging the decision of the MOEF, Government of India by which the MOEF issued certain directions to the Chief Engineer, Go" State Electricity Board, including disconnection of electric supply to the concerned hotel till the directions given by the Union of India were complied with by the concerned hotel management. It was not in dispute that the construction was carried out contrary to the rules and regulations and certain directions were issued by the Union of India so far as the aforesaid case is concerned. 27. The petitioner has also relied upon the decision of this Court in the case of The Goa Foundation Vs. The Panehayat of Candolim and others, (Writ Petitions No.422/98 & 99/1999). Placing reliance upon this Judgment, the learned Counsel submitted that the directions given in the said decision have been ignored by the Authorities and have thus committed contempt of the Court. In this connection. It is required to be noted that this Court had directed to conduct survey and inquiry as regards the number of dwelling units and all other structures and constructions which are existing in the CRZ-III Zone in Goa, Village or townwise as on 19.2.1991 and to identify on the basis of permission granted for construction of the dwelling units which are in excess of double the units with regard to those which were existing on 19.2.1991 and to identify all types of structures and constructions made in CRZ-III zone. except the dwelling units, after 19.2.1991 in the locality comprised of the dwelling units and to take action against the same for their demolition in accordance with the provisions of law; to identify the open plots in CRZ-I11 Zone which are available for construction of hotels and to frame appropriate policy/regulation for utilization thereof before they are being allowed to be utilized for such construction activities. This Court also directed that till and until the survey and inquiry is completed. no new licence for any type of construction in CRZ-III Zone shall be issued or granted and no new structure of \\'hatsocycr nature shall be allowed to be constructed in CRZ-III zone, except repairs and renovation of the existing houses which shall be subject to the appropriate order on completion and result of the survey and inquiry to be held as directed. It is submitted that in any case, the issue which is raised in this petition was not even subject matter regarding permissible activities in CRZ-III. In our view, by going through the said Judgment it cannot be said that this Court has held stated that even permissible activity in CRZ-III cannot be permitted. However, so far as the aforesaid case is concerned. it was a case wherein the authorities had permitted construction of dwelling units in the CRZ-III Zone and it was found that the construction was in violation of the Rules and Regulations and certain directions were given in the said matter. So far as the construction in question is concerned, it is a permissible activity and, so far as the Judgment of the Division Bench of this Court in the aforesaid case is concerned. the directions are given by the Division Bench in respect of dwelling units as there is a specific provision under the CRZ Notifications and it was not in dispute that the constructions where carried out in violation of the said Notification and in that view of the matter. certain directions were given by the Division Bench. 28. Mr. Subramanian has also relied upon a decision of the Supreme Court in the case of S. Jagannath vs. Union of India and ors. reported in (1997)2 see 87. In the said case, the industry was found to be creating pollution in the coastal areas. The Supreme Court in the said case considered the reports of experts. viz., NEERI. Central Board for Prevention and Control of Water Pollution and found that the industry was creating pollution. The Supreme Court in that close directed the Central Government to constitute an authority under Section 8(3) of the Environment (Protection) Act. 1986 and confer on the said Authority all powers necessary to protect the ecologically fragile coastal areas, seashore, waterfront and other coastal areas and specially to deal with the situation created by the shrimp culture industry. In the instant case, as pointed out earlier, the matter was already referred to the MOEF and the Expert Committee ultimately granted permission, subject to various conditions prescribed in the order dated 2.2.09 which respondent No.1 is required to comply with strictly. 29. On behalf of respondent No.1 Company, an affidavit dated 4.2.2008 has been filed by its Managing Director. In the instant case, as pointed out earlier, the matter was already referred to the MOEF and the Expert Committee ultimately granted permission, subject to various conditions prescribed in the order dated 2.2.09 which respondent No.1 is required to comply with strictly. 29. On behalf of respondent No.1 Company, an affidavit dated 4.2.2008 has been filed by its Managing Director. In para 2 of the affidavit, it is averred that M/s. Bandekar Brothers Pvt. Ltd., have constructed a jetty at a distance of 200 to 250 metres from the jetty constructed by respondent No.1, by carrying out identical operations, as carried out by respondent No.1 and that the same is being operated without obtaining permission from the GCZMA. In para 15 thereof, it is averred that on 14.10.2004, the respondent No.1 company submitted revised plan for approval to the GCZMA and a NOC was granted by the GCZMA to respondent No.1 company for construction of the jetties on 16.12.2004. The Captain of Ports, Government of Goa by his Order dated 21.7.2004 granted NOC in connection with the twin jetty for barge loading and unloading facility in the property of respondent No.1 company at Tishem under survey No.27/12 of Village Kottambi, subject to various conditions. By letter dated 13.12.2006, the Captain of Ports informed respondent No.1 that on the basis of inspection carried out by Hydrographic Surveyor of his Department, the NOC was granted to respondent No.1 to construct a jetty for barge loading and unloading facility as proposed, adjacent to survey Nos.25/15, 27/14, 27/12 and 27/9 of Village Cotombi and use of government riverine land, subject to various terms and conditions incorporated in the said letter Prior to that the Member Secretary of the GCZMA by his letter dated 16.12.2004 had informed respondent No.1 that the said authority has granted its approval for the proposed construction of an existing barge ‘Loading/unloading’ facility in survey Nos.25/15, 27/14, 27/12 and 27/9 of Village Cotombi, Bicholim Taluka, subject to various conditions also incorporated in the said letter. Respondent No.1 has also placed on record a copy of permission dated 6th May, 2005 granted by the Village Panchayat of Pale-Cotombi as also the consent of Goa State Pollution Control Board dated 21.9.06. 30. The Captain of Ports, Government of Goa, has filed an affidavit dated 17th March, 2008 and which is at page 191-A of the compilation. Respondent No.1 has also placed on record a copy of permission dated 6th May, 2005 granted by the Village Panchayat of Pale-Cotombi as also the consent of Goa State Pollution Control Board dated 21.9.06. 30. The Captain of Ports, Government of Goa, has filed an affidavit dated 17th March, 2008 and which is at page 191-A of the compilation. In para 10 of the said affidavit, it is averred that after the complaint was received from United Bargeman Association as regards construction of jetty by M/s. Vasantram Mehta & Co., (respondent No.6), a report was obtained from Hydrographic Surveyor and thereafter from a committee of experts. Subsequently, a further site inspection was conducted for examining the navigational aspects upon construction of both the jetties i.e. of respondent No.6 and respondent No. 1. It was decided to direct respondent No.6 to educe the length of the jetty from 18 metres to 11 metres. The length of the jetty of M/s. Alcons protruding was of lesser length than that of respondent No.6 after reducing it to 11 metres and it was found that with those directions, there would be no navigational hazards about construction of both the jetties. 31. A joint affidavit has been filed on behalf of respondents No.5 and 6. In para 2 of the affidavit, the said respondents have pointed out that there are 16 jetties, out of which respondent No.1 vindictively chosen three jetties belonging to respondents No.5, 6 and 7. It is averred that respondents No.5 and 6 have filed a writ petition being Writ Petition No.511/2007 against the State Government and respondent No.1 and its sister concern M/s. Counto Metals and Minerals Pvt. Ltd., challenging Notification issued under Section 4 of the Land Acquisition Act, 1894 declaring the acquisition of land for providing access to the proposed jellies of respondent No.1 and its said sister concern at Tixem and close to the existing jetties of respondents No.5 and 6 as bad in law. The said writ petition has been admitted and the State Government has been restrained from making the award. It is averred that the acquisition is malafide and with ulterior motives and towards fostering private purpose of respondent No.1 and its said sister concern. The said writ petition has been admitted and the State Government has been restrained from making the award. It is averred that the acquisition is malafide and with ulterior motives and towards fostering private purpose of respondent No.1 and its said sister concern. It is averred that single jetty of respondent No.5 in survey No.16/1 of Cottombi Village was built with the approval of Pale-Cottombi Village Panchayat in 1978 and the said jetty is also approved by the Captain of Port, Government of Goa and that the Notification of 1991 is not applicable to the said jetty as it was built before enactment or enforcement of the 1986 Act or 1986 Rules or 1991 Notification. In para 6 of the reply, it is averred that respondent No.6 has constructed another jetty in survey No.27/16 and vide application dated 1.6.2004, respondent No.6 applied to the Captain of Port for no objection to construct the jetty and the NOC was issued by the Captain of Ports on 2.8.2004. 32. An affidavit-in-reply is also filed on behalf of respondent No.7 wherein the stand taken by respondent No.1 and respondent No.7 is denied. 33. On behalf of the respondent No.9. MOEF, an affidavit reply has been filed by the Deputy Director. MOEF, Government of India, New Delhi. In para 5 it is averred as under: "5. I say that in respect of construction of jetties, which is the subject matter of the present Petition Clause 3(2)(ii) is relevant which is transcribed here in below: 3. (I) (2)The following activities will require Environmental Clearance from the Ministry of Environment and Forests, Government of India, namely: (i) ... (ii) Operational constructions for ports and harbours and light houses and constructions for activities such as jetties, wharves, quays and slipways, pipelines, conveying systems including transmission lines." In para 7 it is averred "I say that it is apparent from the above that for construction, expansion or modernization of jetties. Ministry of Environment and Forests clearance is imperative". 34. Learned Senior Counsel Mr. Dessai, appearing for respondents no.5 to 7 vehemently submitted that some of the jetties are being operated since prior to 19.2.1991 for which no clearance is required from the MOEE He submitted that issuance of CRZ Notification is contrary to the provisions of Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act. 34. Learned Senior Counsel Mr. Dessai, appearing for respondents no.5 to 7 vehemently submitted that some of the jetties are being operated since prior to 19.2.1991 for which no clearance is required from the MOEE He submitted that issuance of CRZ Notification is contrary to the provisions of Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act. It is, therefore, submitted that the CRZ Notification is ultra vires the provisions of the Act. We do not find any substance in the said argument. In the present petition, which is in the nature of public interest litigation, no declaration can be given in favour of the said respondents. If the said respondents have any grievance in this behalf, and if any remedy is available to them, they may pursue their remedy, by filing a substantive petition, challenging the said notification. 35. Mr. Dessai has submitted that so far as jetties of respondents No.5 to 7 are concerned, the same are being operated since many years and it would not be just and proper to direct them to stop the operations with immediate effect till permission from the MOEF is obtained. So far as this aspect is concerned, since we do not have any material in this regard and since long the said jetties are in operation, we would not like to give any direction to stop their activities at this stage and therefore, it would be just and proper to direct the concerned Authority to make necessary survey in this behalf and find out as to whether the jetties which are in operation have permission, from the MOEF after the CRZ Notification came into force and thereafter, such directions can be given asking them to take appropriate permission from the MOEF, so as to regularize the operational activities in connection with such jetties. 36. Considering the aforesaid aspect of the matter, we are of the opinion that it cannot be said that the construction of the jetty by respondent No.1 is in violation of CRZ Notification as the same falls within the permissible activities. Respondent No.1, however, is required to carry out its activities in compliance of the conditions which are incorporated in the Order dated 2.2.09 by the MOEF and it is for the local authorities to monitor whether such conditions are violated or not. Respondent No.1, however, is required to carry out its activities in compliance of the conditions which are incorporated in the Order dated 2.2.09 by the MOEF and it is for the local authorities to monitor whether such conditions are violated or not. The concerned Authority i.e. GCZMA may, after completion of such survey, give necessary directions asking such jetty owners to take appropriate permission within reasonable time from the MOEF and if, ultimately, no permission is taken, it is for the GCZMA to take out appropriate proceedings, in accordance with law against such jetty owners. Appropriate survey in this behalf, as indicated above, may be completed within a period of three months from today and, thereafter, further directions, if required, may be given in connection with obtaining permission from the MOEF, in connection with a particular jetty. 37. In view of what is stated above, we do not find any substance in this petition and petition is disposed off accordingly, subject to the directions given hereinabove. The petitioner is directed to pay costs of Rs. 10,000/ - to respondent No. L Rule discharged. Status quo order stands vacated. At this stage, learned Counsel Mr. Bhobe submitted that the petitioner wants to approach the .supreme Court and, therefore, prayed that the status quo, as regards respondent No.1, granted earlier may be extended, Since we have already expressed our doubt in our Judgment about the genuineness of the public interest litigation, it would not be just and proper to grant extension at the instance of the petitioner, especially when respondent No.1 has already obtained the permission from the MOEF and as against that the other jetties are already in operation without even Obtaining the requisite permission from the MOEF. In that view of the matter, we decline to grant the request for extension of order of status quo granted earlier. The prayer is accordingly, rejected. Petition dismissed.