Whether legality of action taken by public authority would depend on elaborate pleadings made in plaint?

  Though Mrs. N. Alvares, learned counsel appearing for the
petitioners had attributed malafides and malice on the part of officers of 
the respondents but however the particulars of such allegations against
such officials have not been disclosed in the petition nor are they parties
to the above petition. But however, it is well settled that the pleadings
are not statute and to examine the legalism of an action taken by the
statutory authorities would not rest on elaborate pleadings averred in
the petition. 
IN THE HIGH COURT OF BOMBAY AT GOA
 WRIT PETITION NO. 333 OF 1993
 The Goa Foundation,

V e r s u s
 The North Goa Planning and Development
Authority,
 Coram:- F. M. REIS &
 K. L. WADANE, JJ

 Judgment pronounced on : 29.06.2015 
Citation; 2016 (2)MHLJ 566

 The above Writ Petition filed by the petitioners inter-alia
prays for an appropriate writ to call for the records relating to the
sanctions granted vide order dated 29.11.1991 and subsequent
revisions/ extensions dated 27.3.1995, 1.10.1996 and 16.07.1997 to the
construction of the respondent no.7 and after going through the legality
of such permissions to build, if any, quash and set aside the same. The
petitioners have also sought for a relief to quash the approval of the
respondent no.3 dated 14.06.1991 and also for a direction to the
respondent nos. 1, 2 and 5 to demolish any construction raised on the
said plot as a consequence of such permissions.
2. Briefly, the facts of the case based on the record in the
above Petition are that the respondent no.2 - Government of Goa
issued an advertisement inviting offers for the construction of a hotel in
Panaji at Gaspar Dias beach on 07.03.1977. On 28.03.1977, M/s. V. M.
Salgaonkar Private Limited submitted a proposal for the construction of
a luxury hotel at Gaspar Dias beach at Panaji and sought for additional
land for that purpose. The lease deed was executed on 30.04.1979 by
the respondent no.2 with M/s Palm Hotels (India) Ltd., for 99 years for
an annual rent of Rs.43,277.30 paise for an area of 15,666 square
metres at Gaspar Dias beach. The Government thereafter acquired
additional plots for the construction of the hotel on 25.06.1981. 
Thereafter, on 30.01.1984, the then Lt. Governor of Goa raised an
objection to the construction of a hotel at the site as the land was
required for a public recreation and that the hotel building would be
close to the water of Mandovi river. Subsequently, an agreement was
signed between the respondent no.2 and Palm Hotels (India) Ltd.,-
respondent on.7 regarding the construction of a luxury hotel which
inter-alia stipulated that the company shall undertake the construction of
a hotel within one year from the date on which the possession of the
land was given. It is also contemplated therein that the respondent no.7
shall conform to all the rules and guidelines made by the Government
from time to time for the preservation of the ecology and the
environment and fulfill other statutory requirements existing in law.
Thereafter, somewhere on 09.02.1987, the Captain of Ports wrote to the
Chief Town Planner that he expects that the hotel building will be beyond
the highest high tide water marks and further that he is concerned that
the hotel building should not cause hindrance to navigation and an
undertaking should be taken from the hotel promoter to make
appropriate changes. The Panjim Draft Outline Development Plan (ODP)
was notified for the public objections and the hotel area was zoned as
recreational somewhere on 27.02.1987. The respondent no.7 raised an
objection for the zoning and requested that the zone be earmarked as
commercial. The Ecological Development Council on 04.03.1987
approved the hotel project in principle provided the zone is changed
under the draft ODP. The said committee was a high powered council 
constituted in 1982 to scrutinize the proposals for development from
environment point of view. The Town and Country Planning Board on
17.08.1987 appointed a sub-committee to scrutinize the objections to
the draft ODP and the Panjim final ODP was notified on 11.01.1990
whereby the hotel site is zoned as commercial. The respondent no.2
constituted the Goa State Committee on Environment (GSCE ) which
replaced the EDC and ECC on 26.07.1990 and their decisions were
placed for review before the GSCE. It is further the contention of the
petitioners that on 19.02.1991, CRZ Notification was issued under the
Environment Protection Act, 1986 whereby the areas within 500 metres
of the High Tide Line on the sea coast and within 100 metres from the
banks of the tidal rivers were declared as CRZ and are subject to the
norms of the CRZ Notification. It is further the contention of the
petitioners that the hotel of the respondent no.7 is within 100 metres of
the High Tide Line on the bank of the river Mandovi. On 14.06.1991 the
application of the respondent no.7 is approved in principle by GSCE and
listed under any other item in the agenda of the 4th meeting of GSCE.
The Town and Country Planning Board approves a 10 metres wide road
along river Mandovi from Youth Hostel to Yatri Niwas on 20.06.1991.
The Ministry of Environment objects to GSCE's decision to approve the
hotel project of the respondent no.7 on 26.08.1991 and requested that
the case be deferred and the details of the project be made available to
the Ministry of Environment and Forests to look into the violations and
overall environmental management. But however, GSCE rejects the 
request of the Ministry of Environment and Forests for details of the
hotel project and the approval has been conveyed to the party and the
plans were approved as the site falls in CRZ II of Panaji. The Panjim
Planning and Development Authority ( PPDA ) grants development
permission to the respondent no.7 for the construction of a hotel on
Chalta Nos.14(p), 16(p), 17, 18, 1(p) of P.T. Sheet Nos. 98 and 116 of
Miramar on 29.11.1991. The Panjim Municipal Council issued a
construction licence on 20.12.1991 and the Tree Officer granted
permission for felling of trees on the plot on 29.06.1992. The
conversion sanad was thereafter issued on 24.07.1992 wherein
according to the petitioners the land is described as sandy and part of
Campal beach. The construction was thereafter started in September,
1992 and there were protests on 15.04.1993 by the Miramar residents
with the Captain of Ports. Thereafter on 23.06.1993 the above Writ
Petition came to be filed along with Writ Petition Nos. 331 and 332 of
1993. It is further the contention of the petitioners that the Chief Town
Planner filed his affidavit on 03.08.1993 to which two maps were filed as
annexures, both of which are highly misleading. It is further their
contention that the Chief Town Planner deliberately showed the Palm
Hotel to be outside CRZ although the joint site inspection report has
shown the distance of the building as 23 metres from the High Tide Line.
It is further also brought to our notice that the Writ Petition was
admitted by this Court on 30.08.1993 and the Court directed that a
separate application be filed for interim relief and accordingly, Civil 
Application No. 180/1993 came to be filed for stay of the construction
which was rejected on 16.09.1993. It is also their case that the interim
order has observed that the plan produced by the Chief Town Planner
shows the site of the hotel as away from the High Tide Line of the
Arabian Sea though the order also records that the construction is at a
primary stage. A SLP was filed before the Apex Court by the petitioners
which came to be dismissed by order dated 10.01.1994 and the order
records that any observation made by the learned Judges or this Court
for not interfering with the matter may not be construed to have any
prejudice to the stand taken by the petitioners at the time of the final
disposal of the petition. The CRZ amendment came on 18.08.1994
reducing CRZ along tidal rivers to 50 metres from the High Tide Line.
In view of the complaints from the residents of Miramar, the Captain of
Ports inspected the Palm hotel's plot and it is the contention of the
petitioners that it was noticed that the excavated sand was dumped
between the high water level and low water level and due to dumping of
the sand the access from the Youth Hostel to Miramar was blocked.
Thereafter, the Ministry of Environment and Forests constituted a
committee comprising of the officers from the Ministry of Goa
Government and two NGOs to inspect the violations of CRZ Notification
in Goa and submitted a report and the interim site visit report was
submitted to the Ministry of Environment and Forests on 30.10.1994
which according to the petitioners records the spot observations and
discussions with the concerned State Authorities. It is further their case 
that the report discloses that the construction of the respondent no.7 is
abutting the waterfront and the site is categorized as a beach and
affected by tidal action and that the construction is coming up on the
seaward side of an existing block of the residential buildings and that
there is no road between sea and the construction site. The report
discloses that the construction extended right up to and within the High
Tide Line and as such the wave impact was impeded by the building
walls of one part of the construction. Thereafter, the petitioners filed
M.C.A. No. 403/94 for stay of the construction in the above Writ Petition
and this Court dismissed the said application on 20.02.1995 once again
noting the stand of the Goa Government that the High Tide Line is
about 1.5 km from the site of the project of the respondent no.7 and
hence the hotel does not lie within the CRZ. The Goa Planning
Development Authority thereafter renewed the permission on
27.03.1995 for the project and the Apex Court declared the clause in the
Notification reducing CRZ along the rivers to 50 metres as illegal on
18.04.1996. The Coastal Zone Management Plans for Goa is approved on
27.09.1996 and the area of the hotel site is zoned as CRZ- II. The
revised plans were thereafter approved on 01.10.1996. On 16.07.1997,
NGPDA approved the revised plans of the project subject to a condition
that no construction on the western side of the existing building line
towards the Mandovi river and thereafter on 16.09.1997, referred the
application to construct the retaining wall filed by the respondent no.7
along Mandovi river bank to the Goa State Committee of Coastal 
Environment. Another application was filed on 29.01.1997 for stay of
the construction and this Court observed in the order dated 25.07.1997
that it is necessary to have a location map on record which would
correctly show the location of the disputed project vis-a-vis the existing
structure on the bank of the river Mandovi including Yatri Niwas, Youth
hostel, Indoor Stadium and Kala Academy so as to examine the disputed
construction coming towards the seaward side or landward side.
Accordingly, a Commissioner was appointed to make a report with that
regard. As the previous Commissioner expressed some difficulty, a new
Commissioner was appointed on 24.11.1997. The report was submitted
on 12.12.1997 along with location plan and the Writ Petition was posted
for hearing on 23.06.1998. Thereafter, the learned counsel of the
petitioners prayed that all CRZ matters be taken up together and this
Court delivered a judgment on 13.07.2000 in Gulf Goans Hotel V/s
Union of India. The said judgment was challenged before the Apex Court
in Special Leave Petition and thereafter on 04.02.2002 at the request of
the learned counsel, the above Writ Petition was adjourned sine die. The
request of the petitioners to fix the matter for hearing was also rejected
on 05.10.2012 and ultimately, the Apex Court delivered a judgment on
22.09.2014 in the matter of Gulf Goans case thereby setting aside the
judgment of this Court.
3. Mrs. N. Alvares, the learned counsel for the petitioners has
raised the following contentions.  :10: W P NO. 333 OF 1993
The learned counsel has pointed out that the construction
put up by the respondent no.7 violates the CRZ Notification of 1991 as
according to her admittedly the application for such development was
filed by the respondent no.7 after the coming into force of the CRZ
Notification of 1991 in February, 1991 and as such, as the hotel
construction project comes within a distance of 100 metres from river
bank, the requirements of CRZ- II have not been complied with by the
hotel project of the respondent no.7. The learned counsel has also taken
us through the affidavit filed by the Government Officials as well as the
submissions at the time of the disposal of the interim application to point
out that the authorities have committed a fraud in the interpretation of
the relevant provisions of the Notification of 1991 which clearly discloses
the illegal malice of the Government Authorities to manipulate the
consideration applicable to the project within CRZ areas in order to grant
permissions to the respondent no.7. The learned counsel further
pointed out that there was collusion between the
Government/respondent no.2 and the respondent no.7 in misleading the
correct facts in issue by filing documents and affidavits. The learned
counsel further pointed out that the Government Officers have
deliberately feigned the correct position by claiming that the hotel
project comes within a distance of 1.5 km from the High Tide Line
overlooking the provisions of the Regulations as well as the intention in
constituting CRZ areas to allow the hotel project of the respondent
no.7. The learned counsel further pointed out that by the development :11: W P NO. 333 OF 1993
carried out by the respondent no.7, the access of the public to the
Miramar beach has been obstructed. The learned counsel further
pointed out that for the construction of a hotel project the sand dunes
have been removed thereby affecting and degrading the area which is
ecologically fragile for erosion. The learned counsel further pointed out
that even the vegetation at the site discloses that the said dunes have
been malafidely removed by the respondent no.7 so that the evidence
with that regard would vanish. The learned counsel has minutely and
elaborately taken us through the relevant provisions of the CRZ
Notification as well as different judgments of the Apex Court and this
Court to advance her contention that the Government Authorities have
fraudulently granted permission for the hotel project in violation of the
relevant provisions of law. The learned counsel further pointed out that
while disposing of the application for interim relief, this Court was
mislead to accept the contention of the respondents that CRZ
restrictions were only applicable to 500 metres from the High Tide Line
of the Arabian sea. The learned counsel further pointed out that this
Court appointed a Commissioner to find out the situation at loco. The
learned counsel has taken us through the Commissioner's report to point
out that the swimming pool constructed by the respondent no.7 is hardly
at a distance of less than 20 metres from the High Tide Line from the
bank of the river. The learned counsel has also pointed out that even
the construction of a hotel is at a distance of 30 metres from the bank of
the river which clearly shows that the construction put up by the :12: W P NO. 333 OF 1993
respondent no.7 is illegal and cannot be allowed to stand. The learned
counsel has thereafter pointed out that the Town Planning Authorities
have approved the plans of the respondent no.7 on the basis that the
areas were coming within CRZ -II but however, the learned counsel has
thereafter taken us through the plans produced on record to point out
that in between the hotel project and the river a proposed road is being
shown which is not existing nor was approved by the concerned
authorities. The learned counsel further pointed out that this itself is a
fraud committed by the respondent no.7 to mislead the authorities to
obtain the permissions for the hotel project at the site. The learned
counsel thereafter pointed out that as there was no approved road
towards the seaward side of the hotel, the question of contending that
the construction is within the norms of CRZ II is totally farfetched. The
learned counsel further pointed out that there is no existing authorised
structure towards the seaward side of the hotel project of the
respondent no.7 and as such the permissions granted in favour of the
respondent no.7 totally violate the CRZ Notification and consequently,
the respondent no.7 deserves to be ordered to demolish the
construction. The learned counsel has relied upon different judgments of
this Court as well as taken us through the material on record to contend
that the reliefs sought by the petitioners deserve to be granted.
4. On the other hand, Mr. R. Dada, learned Senior Counsel
appearing for respondent nos. 7 and 9 has disputed all the contentions :13: W P NO. 333 OF 1993
advanced by the learned counsel appearing for the petitioners. The
learned Senior Counsel has pointed out that the project of the
respondent no.7 was sanctioned prior to the coming into force of the
Notification of 1991. It is the contention of the learned Senior Counsel
that the process was conceived on 30.04.1979 when the lease in favour
of the respondent no.7 was registered at the instance of the respondent
no.2. It is further his case that the project of the respondent no.7 was
approved and cleared prior to 19.02.1991 and that all the projects
approved prior to the said date from the environmental point of view are
not affected by the CRZ Notification of 1991. It is further his contention
that once the project has started then 1991 Notification would have no
application. The learned Senior Counsel further pointed out that the
interpretation of the Notification of 1991 by the Government of Goa
inter-alia was that the restrictions in the Notification would not apply to
any project which was beyond 500 metres from the High Tide Line i.e.
from the point where the sea enters the mouth of the river. The learned
Senior Counsel has taken us through the affidavit of the Town Planner N.
Pandalai as well as of R. N. Ray to point out that the State Government
had always taken a stand that the hotel project of the respondent no.7
was not affected by the CRZ Notification. The learned Senior Counsel
further pointed out that the State Government was the appropriate
authority in the matter of granting development permission under the
Notification 1991 and as such the approvals are valid till CZMP was
approved. The learned Senior Counsel further pointed out that the :14: W P NO. 333 OF 1993
exposition of law by the authorities who are required to implement the
Notification is given high degree of weightage by the Court and in
support of his submission, the learned Senior Counsel has relied upon
the judgment of the Apex Court. The learned Senior Counsel further
pointed out that the State would require to prepare Coastal Zone
Management Plans (CZMP) to implement the CRZ Notification of 1991
and during the interim period the State Government was the appropriate
authority to grant such permission. The learned Senior Counsel further
pointed out that the approval of the CZMP does not come in the way of
the State Government for re-validating a plan or granting a deviation.
The learned Senior Counsel thereafter has taken us through the
amendment of the CRZ Notification on 16.08.1994 and the salient
features of the amendment was that the High Tide Line was required to
be demarcated uniformly in all parts of the country. The learned Senior
Counsel further pointed out that the distance up to which the
development along the rivers, creeks and backwaters is to be regulated
would be governed by the distance up to which the tidal effect of sea is
experienced in the rivers, creeks or backwaters, as the case may be
which should be clearly identified in the Coastal Zone Management
Plans. It is further his contention that the permission to the respondent
no.7 was granted prior to the amendment of 16.04.1994. The learned
Senior Counsel further pointed out that the interpretation of law by the
Government found favour with this Court while disposing of the interim
application. The learned Senior Counsel thereafter pointed out that the :15: W P NO. 333 OF 1993
petitioners themselves have filed a Writ Petition No. 115 of 1992 wherein
the petitioners have challenged the decision in the meeting of
20.11.1991 and that at the time of issuing Rule this Court gave the
petitioners leave to add parties which the petitioners for reasons best
known to them failed to add any parties to the said petition. The
learned Senior Counsel further pointed out that this Court by judgment
dated 15.07.1998 decided the said Writ Petition and the petitioners did
not raise any contention with regard to the validity of the decision taken
on 20.11.1991 and as such, it has to be assumed that the petitioners
had given up their challenge to the decision of the Government of Goa in
the meeting of 20.11.1991 to the project of the respondent no.7. The
learned Senior Counsel further pointed out that the conduct of the
petitioners is not bonafide and has taken us through the affidavit of Mr.
Mukerjie on behalf of respondent no.7 to point out the averments
therein that the petitioners have been selective in choosing to file
petitions challenging the development projects. The learned Senior
Counsel has also pointed out that there is no reference in the above
petition with regard to the filing of the earlier petition in the year 1992
which would show that the petitioners have accepted that the projects
on the Mandovi river were approved by the decision of the Government
on 20.11.1991 by relying upon its own interpretation of the CRZ
Notification of 1991 which was valid till CZMP was approved. The
learned Senior Counsel has thereafter taken us through the petition to
point out that there are no particulars of the alleged fraud brought by :16: W P NO. 333 OF 1993
the petitioners. The learned Senior Counsel also submits that the interim
report of the Ministry of Environment and Forests cannot be relied upon
as it is contrary to the principles of natural justice. The learned Senior
Counsel further pointed out that the contention of the petitioners that
there is a violation of the norms prescribed for CRZ II is totally
erroneous as according to him there is an authorised structure between
the hotel project of the respondent no.7 and Mandovi river which clearly
suggests that the whole construction activity carried out by the
respondent no.7 is in accordance with law and the sanctioned plans. The
learned Senior Counsel has thereafter minutely taken us through the
relevant provisions of law as well as the situation at loco which we shall
deal with while examining the contentions of the learned counsel of the
parties, to point out that all the requirements of CRZ II are duly
complied with by the hotel project of the respondent no.7. The learned
Senior Counsel further justifies the re-validation or revision of the plans
dated 27.03.1995, 01.10.1996 and 16.07.1997 on the basis of Indian
Council for Enviro-Legal Action case. The learned Senior Counsel
has also pointed out that even the swimming pool and compound wall
constructed by the respondent no.7 which have been duly approved by
the statutory authorities do not create any breach of the provisions of
the CRZ Notification. The learned Senior Counsel further pointed out that
in any event the construction activity carried out by the respondent no.7
is with a colour of a legal permissions and as such the question of
directing the demolition of such construction activity is totally absurd :17: W P NO. 333 OF 1993
and cannot be accepted. The learned Senior Counsel has also pointed
out that the respondent nos. 7 and 9 have incurred heavy expenditure in
putting up such project and even the interim relief was refused and as
such grave injustice would occasion to the said respondents in case any
relief is granted to the petitioners. The learned Senior Counsel as such
submits that the petition be rejected.
5. Mr. D. Lawande, learned Government Advocate appearing for
respondent no.2 has pointed out that the area comes within the CRZ II
area and according to him the permissions have been duly granted by
the authorities. The learned counsel further pointed out that the
interpretation of the provisions at the stage of granting of permission is
in consonance with the stand taken by the State Government with
regard to CRZ areas along river having tidal effect. The learned counsel
further pointed out that the permissions have been duly granted and the
construction has already been completed and as such according to him
the question of directing the demolition of the construction would not
arise at all. The learned Government Advocate however did not dispute
that the permissions were granted to the respondent no.7 based on the
norms of CRZ II in terms of CRZ Notification of 1991.
6. Mr. H. D. Naik, learned counsel appearing for respondent
no.1 has also supported the contention of Mr. D. Lawande, learned
Government Advocate appearing for the respondent no.2. The learned :18: W P NO. 333 OF 1993
counsel has also produced the plan of the concerned construction at the
time of revision in the year 1996. The learned counsel as such submits
that no case is made out by the petitioners for any relief.
7. Mrs. N. Alvares, learned counsel appearing for the petitioners
has disputed the contention of the learned Senior Counsel appearing for
the respondent nos. 7 and 9 by pointing out that even during the
pendency of the earlier petition in 1992 when the petitioners learnt
about the development activities intended by the respondent no.7 the
petitioners immediately in the year 1993 filed the present petition. The
learned counsel further pointed out that this itself suggest that the
petitioners have not delayed as no development had in fact started when
the petition was filed. The learned counsel further pointed out that the
contention that the petitioners are selective is totally erroneous as
according to her the petitioners have filed petitions after the disposal of
the Writ Petition of the year 1992 against most of the hotels which were
contrary and in breach of the CRZ Notification. The learned counsel
further pointed out that as far as the respondent no.7 is concerned, as
the petition was already filed and pending adjudication there was no
need of filing another petition. Without prejudice to the above
submission, the learned counsel has pointed out that even assuming
that for the purpose of finding out an authorised legal structure one can
see on both sides of the plot of the respondent no.7, evidently,
according to her the swimming pool and compound wall comes within :19: W P NO. 333 OF 1993
the no development zone of the CRZ area. The learned counsel further
pointed out that even the hotel structure itself comes within the no
development zone area but however considering that the hotel has
already been constructed, the question of allowing the swimming pool
and compound wall in the no development zone in the CRZ area would
be totally contrary to the environment laws. The learned counsel further
pointed out that as such this Court should ensure that the access of the
public along the Miramar beach abutting the Mandovi river is not at all
jeopardize and further that all the constructions put up in the no
development zone in CRZ area along the river bank are ordered to be
removed.
8. Before we proceed to examine the main rival contention with
regard to the claim of the petitioners that there was an infringement of
the CRZ Regulations of 1991, we shall deal with the preliminary
contentions raised by Mr. R. Dada, learned Senior Counsel appearing for
the respondent nos. 7 and 9.
9. The first contention of the learned Senior Counsel is that in
view of the earlier Writ Petition No. 115 of 1992 filed by the petitioners,
the above petition is barred by principle of res judicata. The learned
Senior Counsel has pointed out that there was a challenge to the
decision in the meeting of 28.11.1991 of the respondent no.3 wherein
the project of the respondent no.7 was also approved. The learned :20: W P NO. 333 OF 1993
Senior Counsel has further submitted that there were averments in the
said Writ Petition to suggest that the petitioners were also raising a
grievance with regard to 10 metres set back being fixed by the
concerned authorities. The learned Senior Counsel as such submits that
the issue with regard to the licence for the project of the respondent
no.7 could very well be raised by the petitioners in the earlier petition
and as such according to him the present petition is barred by principle
of constructive res judicata in terms of Section 11 of the Civil Procedure
Code.
10. It is not disputed that the present petition was filed
immediately after the petitioners obtained an information about the
plans which were sanctioned by the concerned authorities in respect of
the hotel project of the respondent no.7. The respondent nos. 7 and 9
admittedly were not parties to the earlier petition. The petitioner no.2
also was not a party to the said petition. Even before the above Writ
Petition No. 115 of 1992 was finally disposed of on 15.07.1998, the
petitioners filed the present Writ Petition on 23.06.1993. Apart from
that, on perusal of the earlier judgment passed by this Court dated
15.07.1998, it is clearly stated therein that the grievance of the
petitioners was the approval of the projects along the coastal line
without preparing the coastal zone management plan. As in the
meanwhile, the Central Government had approved the management plan
on 27.09.1996, this Court disposed of the said Writ Petition. In such :21: W P NO. 333 OF 1993
circumstances, the contention of Mr. Dada, learned Senior Counsel
appearing for the respondent nos. 7 and 9 that the contentions sought
to be raised by the petitioners in the present Writ Petition were directly
and substantially in issue in the said Writ Petition cannot be accepted.
Apart from that, as already pointed out herein above, the respondent
nos. 7 and 9 nor the petitioner no.2 were parties to the said Writ
Petition. Besides, the petitioners filed the above Writ Petition by raising
the claims during the pendency of the earlier Writ Petition. In such
circumstances, the judgment of the Apex Court relied upon by the
learned Senior Counsel appearing for respondent nos. 7 and 9 reported
in 1985(2) SCC 670 in the case of Daman Singh and others Vs
State of Punjab is not applicable to the facts in the present case. The
Apex Court in the judgment reported in AIR 2001 SC 2134 in the case
of M/s International Woollen Mills V/s M/s. Standard Wool
(U.K.) Ltd., has observed at para 10 thus :
“10. …..........................Mr. Hingorani
however submitted that this case would
be covered by Explanation IV to Section
11 of the Code of Civil Procedure. He
submitted that in the earlier Application
the defence regarding non -compliance of
Section 13(b) could have been taken but
had not been taken. He submitted that it
was not open to the Appellants to take
such a defence in a subsequent
Application. In our view there is no
substance in this submission. Explanation :22: W P NO. 333 OF 1993
IV to Section 11 of the Code of Civil
procedure would have come into play only
if some decision had been finally given
before the second Application was filed. In
that event it could have been urged that
all available points should have been
urged before that decision was given. In
this case the second Application was filed
before any decision on the first Application
was given. The Appellants could have,
instead of filing a second Application,
amended their first Application and taken
these pleas in that Application itself. Had
they amended the first Application there
would be no bar of res-judicata or
constructive res judicata. If that be so one
fails to understand how the second
Application was barred by principles of
res-judicata or constructive res- judicata.
To be remembered that the Orders were
passed after hearing arguments on both
the Applications. Under such
circumstances no question arises of their
being any res-judicata or constructive resjudicata.”
Admittedly, the present Writ Petition was filed disputing the
permissions granted to the respondent no.7 much prior to the disposal
of the earlier Writ Petition when there was no final decision therein and
as such the question of contending that the present Writ Petition is :23: W P NO. 333 OF 1993
barred by principle of constructive res judicata cannot be accepted. It is
also to be noted that the respondent no.7 did not take any steps, if at all
they were so interested to take up the above Writ Petition along with the
said Writ Petition No. 115 of 1992 though from the records in the
present petition they had knowledge about the pendency of such
petition. The judgment of the Apex Court relied upon by Mr. Dada,
learned Senior Counsel appearing for respondent nos. 7 and 9 reported
in (1986) 1 SCC 100 in the case of Forward Construction Co. and
others Vs Prabhat Mandal (Regd.) Andheri and others is not at all
applicable to the facts of the present case. The facts therein are that
after an earlier petition was finally disposed of, another petition came to
be filed by some parties under Article 226 of the Constitution of India
seeking almost the same relief. As pointed out herein above, in the
present case, the reliefs are different. Besides, the respondent nos. 7
and 9 nor petitioner no.2 were parties to the earlier petition. The
infringements pointed out by the petitioners in the present Writ Petition
were not directly and substantially in issue nor adjudicated in the said
Writ Petition No. 115 of 1992. The principles of res judicata are not
otherwise ordinarily applicable to Public Interest Litigation and in such
circumstances, we find that the contention of Mr. Dada, learned Senior
Counsel appearing for the respondent nos. 7 and 9 that the above Writ
Petition is barred by principle of res judicata cannot be accepted.
11. Before we proceed further, we would like to deal with the
contention of Mr. R. Dada, learned Senior Counsel appearing for
respondent nos. 7 and 9 with regard to his submission that the petition
filed by the petitioners is hopelessly barred by laches. In the present
case, the permissions were obtained in November, 1991. The
Municipality licence was obtained subsequently. The petition was filed in
the year 1993 and the records reveal that when the petition was filed,
the construction activities were at a primary stage. Apart from that, it is
also the contention of Mr. R. Dada, learned Senior Counsel appearing for
the respondent nos. 7 and 9 that the petitioners themselves had already
initiated proceedings in the year 1992 with regard to the permissions
which were granted despite of the fact that the Coastal Zone
Management Plan was not prepared. The licences which were granted
on the said date were for different projects along the sea front. It
appears that the project of the respondent no.7 was also added to the
agenda during the course of the meeting on the said date. Mrs. N.
Alvares, learned counsel appearing for the petitioners has pointed out
that there was an order of status quo operating in the said earlier
petition but however, the fact remains that essentially the grievance of
the petitioners in the said petition was to the projects which were
approved along the Arabian sea by the authorities. It is also pointed out
by Mrs. N. Alvares, learned counsel appearing for the petitioners that
immediately after the Coastal Management Zone Plan was prepared and
the earlier petition was disposed of, the petitioners had also filed a
petition challenging the permissions granted to the hotel project put up :25: W P NO. 333 OF 1993
along the sea. But however, in the present case, the petitioners chose to
file the above petition as early as in the year 1993 and at the time of the
disposal of the interim relief, the Apex Court had clearly noted that the
refusal of such interim relief would not affect the contention of the
petitioners at the time of the final hearing of the above Writ Petition. As
such, it cannot be said that the above Writ Petition is barred by laches.
12. We shall now proceed to examine the contentions of Mrs. N.
Alvares, learned counsel appearing for the petitioners that the hotel
construction is in violation of the provisions of the CRZ Notification of
1991. In this connection, the first contention of Mr. Dada, learned
Senior Counsel appearing for the respondent nos. 7 and 9 is that the
CRZ Notification of 1991 is not applicable to the present case as
according to him the project was sanctioned prior to the coming into
force of the CRZ Notification of 1991 on 19.02.1991. Admittedly, prior
to the said date there were no sanctions obtained by the respondent no.
7 from the Town and Country Planning Authorities and the Panaji
Municipality for any construction activity. In the judgment of the
Division Bench of this Court reported in 1989 (1) Goa Law Times 189
in the case of Jimmy Jal Gazdar V/s Panjim Planning and
Development Authority and two others, it has been inter-alia
observed that construction of a building comes within the ambit of the
expression “ development” and that Sections 43 and 44 of the Goa,
Daman and Diu Town and Country Planning Act, 1974 makes it :26: W P NO. 333 OF 1993
abundantly clear that in case of all constructions/developments carried
out after the Act becomes applicable to the area, permission under
Section 44 of the said Act must be obtained. The permission or approval
obtained for such development under any other law would not be
sufficient and a permission under Section 44 of the said Act would be
required for such construction activity. In the present case, it is not
disputed that the permission under Section 44 of the Town and Country
Planning Act, 1974 was obtained on 29.11.1991 and the application was
made on 10.05.1991. In such circumstances, the development was
permitted after the coming into force of the CRZ notification of 1991 and
as such the contention of Mr. R. Dada, learned Senior Counsel that the
permissions were obtained much before the coming into force of the CRZ
Notification cannot be accepted. The Apex Court in the judgment
reported in Judgments Today 1992(4) S.C. 538 in the case of
Usman Gani J. Khatri of Bombay V/s Cantonment Board and
others, the Apex Court has observed at para 24 thus :
“24. It appears from the record
that the Union Ministry of
Environment, State of
Maharashtra, National Commission
on Urbanization and expert
working group on Cantonment
areas took notice of this problem in
the city of Pune and suggested
schemes which took the shape of
orders issued by the G.O.C.-in- :27: W P NO. 333 OF 1993
Chief, Southern Command and
amendments in the bye-laws by
the Cantonment Board. The
petitioners did not acquire any
legal right in respect of building
plans until the same were
sanctioned in their favour after
having paid the total amount of
conversion charges in lump sum or
in terms of sanctioned installments
and getting conversion of their land
in free-hold tenure. The first
scheme of restrictions was brought
into force long back on 24th
December, 1982 and the second on
26th March, 1984. The petitioners
did not submit any fresh building
plans in accordance with the first
or the second scheme of
restrictions. Many of the petitioners
have not paid a single pie towards
the conversion charges, some of
them have paid only few
installments but not according to
the schedule. In any case, the
High Court is right in taking the
view that the building plans can
only be sanctioned according to the
building regulations prevailing at
the time of sanctioning of such
building plans. At present the
statutory bye-laws published on :28: W P NO. 333 OF 1993
30th April, 1988 are in force and
the fresh building plans to be
submitted by the petitioners, if
any, shall now be governed by
these bye-laws and not by any
other bye-laws or schemes which
are no longer in force
now...............”
13. Taking note of the said observations of the Apex Court, we
find that in the present case the Goa State Committee of Environment
at the 4th meeting held on 14.06.1991 considered the proposal of the
respondent no.7 to put up a hotel project in the subject property. This
is reflected at para 17 of the affidavit of Mr. N. Pandalai, Chief Town
Planner of the State of Goa. At para 18 of the said affidavit, the Town
Planner further states that at the said meeting, the effect of the
notification of the Government of India concerning the coastal area
classification and development regulations framed under Section 3(1)
and 3(2) of the Environment Protection Act and Rules 5(3) of
Environment ( Protection ) Rules, 1986 was also considered and it was
deliberate to follow the set back line of 10 metres along the river and
creeks. By a letter dated 10.10.1991 the Chief Town Planner informed
the respondent no.7 that the proposal for construction of hotel was
considered and approved by the Goa State Committee Environment in
the said meeting and that there is no objection from the planning point
of view to construct the hotel with condition that the conversion sanad, :29: W P NO. 333 OF 1993
development permission and licence from the Dy. Collector, Member
Secretary of CPDA and Panaji Municipal Council should be obtained prior
to the commencement of the construction. The order granting
permission in terms of Section 44 of the Town and Country Planning Act
is dated 29.11.1991 and it clearly states that the application for
approval was filed by the respondent no.7 on 10.05.1991. The Panjim
Municipal Council granted the requisite permission to put up a hotel
project in the subject property on 28.12.1991. The sanad of conversion
issued by the Collector under the provisions of Land Revenue Code is
dated 24.07.1992. On perusal of the said sanad, it clearly inter-alia
discloses that the land in question in Chalta No. 18 of P. T. Sheet No. 98
is sandy and the part of Campal beach is having 218 cassurina forest
trees. The said material on record clearly shows that the permissions
were applied by the respondent no.7 only after the coming into force of
the CRZ Notification of 1991 and consequently, the contention of Mr. R.
Dada, learned Senior Counsel appearing for the respondent no.7 that
the subject project does not come within the ambit of the CRZ
Notification of 1991 cannot be accepted merely because the lease
agreement for the project was approved in principle by the concerned
authority. The record do not reveal that any application for any
permission from the statutory authorities came to be issued in favour of
the respondent no.7 prior to the coming into force of the CRZ
Notification of 1991 on 19.02.1991. As such, the restrictions as
provided under the CRZ Notification of 1991 would clearly be applicable :30: W P NO. 333 OF 1993
to the subject project put up by the respondent no.7 in the said
property.
14. Mr. R. Dada, learned Senior Counsel appearing for the
respondent nos. 7 and 9 earnestly submitted that there was a lease
agreement executed in favour of the respondent no.7 pursuant to which
the hotel project was initiated. No doubt, the lease agreement was
executed in favour of the respondent no.7 but however, on perusal of
the terms of such agreement, it clearly provided that the hotel project
would have to be put up after obtaining all the requisite statutory
sanctions including the environment permissions. In such
circumstances, the respondent no.7 was expected to have the
permissions to carry out the development in accordance with the
statutory regulations including the CRZ Notification of 1991 which had
then come into force.
15. Para 3(3)(i) of the CRZ Notification of 1991 inter-alia
provides that the Coastal States/Union Territory Administrations shall
prepare within a period of one year from the date of such Notification,
Coastal Zone Management Plans identifying and classifying the CRZ
areas within their respective territories in accordance with the guidelines
given in Annexures I and II of the said Notification. Clause (3) (3) (iii)
of the said Notification of 1991 further provides that in the interim
period till the Coastal Zone Management Plans mentioned in para (3)(3) :31: W P NO. 333 OF 1993
(i) are prepared and approved, all the development activities within the
CRZ shall not violate the provisions of the Notification. The State
Governments and Union Territory Administrations as such had to ensure
adherence to these Regulations and violations, if any, would be subject
to the provisions of the Environment (Protection ) Act, 1986. The said
provisions clearly provides that until the Coastal Zone Management Plan
is prepared and approved in terms of the said provisions, during the
interim period all development activities within the CRZ should not
violate the provisions of the said Notification. In the present case, when
the project of the respondent no.7 was approved by the authorities in
the year 1991, the management plan was not prepared and
consequently, any development could not violate the said CRZ
Notification of 1991. As such the decision of the Goa State Committee
of Environment to maintain a distance of 10 metres from the river bank
is clearly in violation of the provisions of the CRZ Notification of 1991.
16. CRZ Notification dated 19.02.1991 came to be issued under
Section 3(1) and Section 3(2)(v) of the Environment (Protection ) Act,
1986. By the said Notification, the Government of India, brought into
force the Rules/Regulations restricting the development and
construction activities in the area known as Coastal Regulation Zone as
defined in the said Notification. The statements, objections and reasons
proceeded on footing that the said Act of 1986 shows growing concern of
the Central Government about the decline in the Environmental quality :32: W P NO. 333 OF 1993
as evidenced by increase in the pollution, loss of vegetal coverage and
biological diversity and excessive concentration of chemicals in the
atmosphere. Section 5 of the said Act gives special power to the Central
Government to issue direction in writing from time to time to any person
or any authority in connection with the Act which such person is bound
to comply with. Under the Act, the Central Government is authorised to
monitor the implementation of the Act. CRZ Notification was accordingly
issued in the year 1991 in exercise of power conferred under Rule 5(3)
of the Environment ( Protection ) Act, 1986. The Notification came to be
issued to protect the ecological balance in the coastal area. Rule 5
provides for prohibition and restrictions of locating of the industries. The
Notification constitutes a recognition of the fact that coastal stretches of
seas, bays, estuaries, creeks, rivers and backwaters which are
influenced by tidal action up to 500 meters from High Tide Line and the
land between the Low Tide Line and High Tide Line are ecologically
vulnerable and require special measures of protection against the
environmental degradation. The natural resources are held in trust by
the community for the benefit of not merely the present generation but
for succeeding generations as well. The uncontrolled march of
urbanization poses serious dangers to the preservation of the
environment. The policy makers undoubtedly have to preserve the
balance between the urgent need for economic development and the
preservation of the natural resources against the rapacious denudation.
The CRZ Notification makes that balance and dwells upon a specific part :33: W P NO. 333 OF 1993
of the environment, and an important one at that which is defined as the
Coastal Regulation Zone. Within the Coastal Regulation Zone any
development either by a private or a public body must be in accordance
with the provisions of the notification. The burden must lie on the
developer to establish entitlement before the authority before whom he
seeks a sanction. The law imposes an absolute and unconditional
obligation upon the developer to make a full, fair and candid disclosure
to the sanctioning authority of all the features of the proposed
development and to demonstrate that the development will not have a
deleterious effect on the environment. The material disclosed to the
authority constitutes the basis for the grant of sanction or permission.
Consequently, a failure to disclose all the relevant material and
information will invalidate the grant of sanction. The provisions such as
CRZ Notification of 1991 are conceived in the public interest, the interest
which protects the welfare not merely of the society as it exists, but the
society of the morrow. The CRZ Notification has provided a
categorisation of coastal stretches into CRZ I, II, III and IV which would
apply even pending the sanction of the Coastal Zone Management Plan.
17. Before we proceed to examine whether the subject land
comes within the Coastal Regulation Zone, we have to note that the CRZ
Notification of 1991 clearly declares the coastal stretches of seas, bays,
estuaries, creeks, rivers and backwaters which are influenced by the
tidal action ( in the landward side ) up to 500 metres from the High Tide :34: W P NO. 333 OF 1993
Line and the land between the Low Tide Line and High Tide line as
Coastal Regulation Zone and imposes with effect from the date of the
Notification the restrictions provided therein. It further provides in the
note that the proposed regulation in case of rivers, creeks and
backwaters may be modified on case to case basis for the reasons to be
recorded while preparing the Coastal Zone Management Plans. However,
this distance shall not be less than 100 metres or the width of the
creeks, rivers or backwaters whichever is less. On going through the
said Notification, the Coastal Regulation Zone as far as the seas are
concerned is 500 metres from the High Tide Line whereas, as far as
rivers are concerned such distance shall not be less than 100 metres
from the High Tide Line. The term High Tide Line means “ the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the foreshore
or other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high tides
that occur with periodic frequency but does not include storm surges in
which there is a departure from the normal or predicted reach of the
tide due to the piling up of water against a coast by strong winds such
as those accompanying a hurricane or other intense storm”. Hence, the
High Tide Line is the line of intersection of land with the water surface.
Thus, the stand of the State Government that the distance stipulated in :35: W P NO. 333 OF 1993
the CRZ has to be drawn from the Arabian Sea is totally erroneous and
not in accordance with the CRZ Notification of 1991. The construction of
the Notification by the State Government to mean that such Coastal
Regulation Zone is only at a distance of 100 metres from the mouth of
the river is also unsustainable as the Notification clearly stipulates a
distance of 100 metres for the rivers from the High Tide Line to be a
Coastal Regulation Zone. The fact that the project of the respondent
no.7 is abutting the Mandovi river which is subjected to tidal effect of
the sea is not disputed. In such circumstances, the High Tide Line will
be the line on the land up to where the highest high tide reaches at
spring tide.
18. In the affidavit filed by Mr. S. K. Mukerjie on behalf of the
respondent no.7 he has accepted at para 8 that the impugned planning
permission dated 29.11.1991 and the clearance by GSCE dated
14.6.1991 are based on the interpretation, placed on the Coastal Zone
Regulation by the said bodies. He has further stated that it is nobody's
case that the said regulations have been relaxed in favour of the 7th
respondent. He has also stated that in all cases where the proposed
development is beyond 500 metres of the High Tide Line as explained in
the GSCE decision of its meeting held on 28.11.1991, the said
regulations have not been complied with. He has further stated that the
interpretation is correct and the Coastal Regulations of 1991 do not
apply to the present case as well as other similar situated project on the :36: W P NO. 333 OF 1993
bank of Mandovi river. He has also stated in para 6 of the said affidavit
that on plain reading of 1991 Regulations, it is clear that GCMP is to be
prepared in respect of rivers and estuaries falling within the coastal zone
of 500 metres from the High Tide Line and not in respect of the river
falling out side the coastal zone. He has also stated that the hotel
project is at a distance of southern bank of Mandovi river outside the
coastal zone. He has also highlighted the averments of the Chief Town
Planner in his affidavit who has stated that the set back from the river
front kept by the respondent no.7 is of 23 metres from the plinth which
has been constructed. He has also stated at para 9 of the said affidavit
which is dated 04.09.1993 that the letter of Additional Magistrate is
based on misrepresentation of both the facts and law as merely because
the project is at a distance of 23 metres from the bank of river Mandovi
does not bring it under the provisions of the CRZ. He has also reiterated
that the said regulation pertain to the coastal stretches and not river
bank more than 500 metres from the High Tide Line. Thus, the stand
taken by the respondent is that CRZ Regulations are not applicable to
the projects which are located along the river bank though subject to
tidal effect and that in any event it does not affect the projects which are
located 500 metres from the Arabian Sea. This stand of the respondent
cannot be accepted as it is by misreading the said Notification of 1991
and the note referred to therein. On going through the CRZ Notification
of 1991 and the note therein it provides that the restrictions in terms of
CRZ Notification of 1991 would also apply to the project at a distance of :37: W P NO. 333 OF 1993
100 metres from the High Tide Line of the river subject to the conditions
stipulated therein.
19. Mr. Dada, learned Senior Counsel appearing for the
respondent nos. 7 and 9 has however relied upon the judgment of the
Apex Court reported in (1979) 4 SCC 565 in the case of Desh Bandhu
Gupta and Co. and Others Vs Delhi Stock Exchange Association
Ltd., to advance his contention that the exposition of law by the
authorities is given high degree of weightage by the Court. But
however, at para 9 of the said judgment, it is observed thus :-
“9. …................In Crawford on
Statutory Construction (1940 Edn.) in
para 219 (at pp. 393-395) it has been
stated that administrative construction
(i.e. contemporaneous construction
placed by administrative or executive
officers charged with executing a
statute) generally should be clearly
wrong before it is overturned; such a
construction, commonly referred to as
practical construction, although not
controlling, is nevertheless entitled to
considerable weight; it is highly
persuasive. In Baleshwar Bagarti v. :38: W P NO. 333 OF 1993
Bhagirathi Dass the principle, which
was reiterated in Mathura Mohan Saha
v. Ram Kumar Saha has been stated by
Mukerjee J. thus:
"It is a well-settled principle of
construction that courts in
construing a statute will give
much weight to the
interpretation put upon it, at the
time of its enactment and since,
by those whose duty it has been
to construe, execute and apply
it...... I do not suggest for a
moment that such interpretation
has by any means a controlling
effect upon the Courts; such
interpretation may, if occasion
arises, have to be disregarded
for cogent and persuasive
reasons, and in a clear case of
error, a Court would without
hesitation refuse to follow such
construction." ( emphasis
supplied )
Of course, even without the aid of these two
documents which contain a
contemporaneous exposition of the
Government's intention, we have come to
the conclusion that on a plain construction
of the Notification the proviso permitted the
closing out or liquidation of all outstanding
transactions by entering into a forward
contract in accordance with the rules, byelaws
and regulations of the respondent.”
Hence, the construction by the State Government of the CRZ
Notification as such does not bind the Court if it is found that the
executive construction is not in accordance with the CRZ Notification and :39: W P NO. 333 OF 1993
is a clear case of error. Thus, when the executive construction of the
provisions are totally erroneous and on its plain reading are not in
accordance with the provisions of the Notification, the question of giving
any weightage to such construction would not arise. Such a
construction by the respondents is unsupportable on the touchstone of
an acknowledged or acceptable principle of law though the decision
makers may not have a role of actual malice at work in his mind. A
person who inflicts an erroneous view on the public in contravention
and contrary to the law, is not allowed to say that he did so with an
innocence mind. He is taken to know the law and can only act within
the laws. It can be described as an act well done with an oblique or
indirect object. It is well settled that the State is under an obligation to
act fairly, without ill will or malice. Thus, something done without lawful
excuse, disregarding the rights of the public and the objects for which
such laws have been enacted, can be termed to be with indirect object.
It is an act done wrongfully, without reasonable or probable cause.
Considering the said aspects in the present case, we find that while
examining the environmental aspect for the project of the respondent
No.7, though the provisions of CRZ Notification of 1991 were in fact
clearly noted, the respondent No.3 chose to direct the concerned
Department to change the distance of the No Development Zone and
make changes in the plan though the Notification itself provided that
until the coastal management plan is approved by the Central
Government, all the restrictions imposed under the CRZ Notification of :40: W P NO. 333 OF 1993
1991 have to be complied with. It is also to be noted that the
representative of the Ministry of Environment had, in fact, brought to
the notice of the respondent No.3 that the hotel project of the
respondent No.7 would violate the CRZ Notification of 1991. Apart
from that the concerned Authorities, while granting the permissions for
such constructions, have clearly noted that the project was coming
within the CRZ-II area. In such circumstances, the whole exercise by
the respondents to take a stand contrary to the express provision of the
CRZ Notification of 1991 and assume that the hotel project of the
respondent no.7 did not fall within the Coastal Regulation Zone is not at
all justified. It is also to be noted that while granting sanction, the Dy.
Collector has clearly noted that the substantial part of the land is sandy
and that cassurina forest trees which are normally grown on sandy and
beach areas are found therein. In such circumstances, the action by the
authorities to permit the hotel project without complying with the
restrictions of the CRZ Regulations is not at all justified as the said
project was within 100 metres from the High Tide Line of the river.
20. Mr. Dada, learned Senior Counsel appearing for respondent
nos. 7 and 9 has thereafter pointed out that at the time of deciding the
interim relief, this Court had accepted the stand of the Government that
the project of the respondent no.7 does not come within the area
restricted by the CRZ Notification. But however, the Apex Court while
disposing of Special Leave Petition No. 20221 of 1993 by order dated :41: W P NO. 333 OF 1993
10.01.1994 has observed that any observation made by the learned
Judges or by the Apex Court not interfering with the matter may not be
construed to have any prejudice to the stand taken by the petitioners at
the time of the disposal of the petition. Even while disposing of M.C.A.
No. 403 of 1994, this Court has observed at para 5 that it does not
propose to make any observation with regard to the question as to
whether the suit construction lies in the Coastal Regulation Zone or not
or whether the same is located either on the beach or sea front or along
the bank of Mandovi river. Similarly, this Court has observed that it is
not concerned at this stage as to whether the suit construction falls in an
estuarian area or in the bay being therefore subject to tidal action which
by itself would imply that it may be covered by the Coastal Regulation
Zone within the meaning of Notification of 1991. In such circumstances,
this Court had not examined at that stage whether the hotel project of
the respondent no.7 was within the Coastal Regulation Zone. As already
pointed out herein above, on the basis of the material on record, it
cannot be disputed that the subject project is within the Coastal
Regulation Zone. It is also pertinent to note that the stand taken by the
State Government at the time of filing of the Writ Petition has not been
now supported by the learned Government Advocate appearing for the
respondent no.1 who has fairly stated that the hotel project has been
examined on the basis that the subject land is within the CRZ II area.
No submissions as such in support of such stand based on the CRZ
Notification were advanced by the learned Government Advocate. :42: W P NO. 333 OF 1993
21. In this connection, we would also like to note the conduct of
the statutory authorities while granting the permission to the respondent
no.7 for the subject construction. As already observed herein above, the
stand of the State Government, which prima facie influenced this Court
to refuse an interim relief, that the subject land was beyond 500 metres
from the Arabian Sea and as such not covered by the CRZ Regulations is
not in conformity with the provisions of the Notification of 1991. We
have also taken note of what is the meaning of High Tide Line and that
as far as rivers are concerned, the restrictions under the CRZ
Notification would apply to a distance of 100 metres from the High Tide
Line. Mrs. N. Alvares, learned counsel appearing for the petitioners also
brought to our notice that at the time when the permissions were
granted to the respondent no.7 there was another permission issued by
the same authorities somewhere in the year 1992 for another project
which was the subject matter in the case of People's Movement for
Civic Action through its General Secretary and Anr V/s Goa
Coastal Zone Management Authority and others reported in
2014(3) Bom. C. R. 12. While examining the plans therein in respect
of a project which was abutting the Zuari river which is another main
river of the State of Goa and is also subject to tidal effects of the Sea,
the project was examined in the context of maintaining a set back of
100 metres from the High Tide Line of such river. It was sought to be
contended by Mr. Lawande, learned Government Advocate appearing for
the respondent no.1 that the distance from the Arabian Sea and the said :43: W P NO. 333 OF 1993
project might have been less than 500 metres. But however, common
knowledge would show otherwise. Though at the time of the meeting of
the committee to examine the subject project, the restrictions of the
CRZ Notification were noticed, the then Chairman of the Committee
observed that for the State of Goa, 10 metres set back would be
sufficient and directed the Ministry to make guidelines accordingly. This
was contrary to the CRZ Notification of 1991. Even when the MOEF
raised an objection to the project of the respondent no.7 inter-alia on
the ground that the set back as provided in the CRZ Notification of 1991
has not been adhered to, the committee found that the project was
being considered on the basis that it came within CRZ II classification.
This would also have to be examined in the context that the plans which
have been produced on record at the time of the revisions of the plans
in the year 1996 and/or 1997 disclosed a proposed road between the
hotel project and the river Mandovi. Admittedly, such proposed road
was not shown in the Coastal Zone Management Plan which came to be
approved in the year 1996. The said road was not an existing road and
consequently the depiction by the respondent no.7 of such road is to
divert the concerned authorities of the situation at loco. Thus the stand
of the respondent nos. 1 to 4 with regard to the CRZ Notification
subverts the norms as provided in the CRZ Notification of 1991.
22. Though Mrs. N. Alvares, learned counsel appearing for the
petitioners had attributed malafides and malice on the part of officers of 
the respondents but however the particulars of such allegations against
such officials have not been disclosed in the petition nor are they parties
to the above petition. But however, it is well settled that the pleadings
are not statute and to examine the legalism of an action taken by the
statutory authorities would not rest on elaborate pleadings averred in
the petition. On perusal of the averments in the petition, we find that at
para 19, there is a specific averment that the decisions of the
respondent no.4 with regard to the alleged proposed road was
deliberately concealed from the public. There is also material on record
of the objections of the Central Government in connection with the
subject project. The petitioners also contend that the sanctions were
obtained by fraud and manipulation and contrary to the CRZ
Regulations. These aspects, read with the facts as enumerated herein
above can be taken note of to examine the legality or the malice in law
by the authorities in issuing the concerned sanctions to the respondent
no.7. Based on the material on record, the Court can draw inferences
and conclusions to ascertain as to whether there is any erroneous
appreciation of the relevant provisions of law or a gross breach of the
restrictions imposed by the concerned Notification. Thus, we find that
the conduct of the concerned authorities of the State Government in
complying with the well recognized aims and objects of the Environment
( Protection ) Act and the CRZ Notification of 1991 are found wanting by
acting in breach of such enactments. The whole conduct appears to be
to allow a hotel project of the respondent no.7 without examining the :45: W P NO. 333 OF 1993
norms as provided in the CRZ Notification of 1991. Though it is noted by
the authorities that the project is considered as being in CRZ II area
nevertheless, an authorised structure has not been identified nor
disclosed by the authorities while examining the impugned sanctions.
Even in the affidavit filed by the respondents no particulars to that effect
have been stated. As the matter is pending from the year 1993, we
accordingly found it expedient to locate an authorised structure on the
basis of the plans prepared by the Court Commissioner. When malice is
attributed to the State, it may not be a case of personal ill-will or spite
on the part of the State. The authorities which are the custodians of
power cannot be influenced in its exercise by considerations other than
that for which the power is vested in them in the first place. Authorities
cannot be swayed by any other motive other than exercise its power in
accordance with law. The expression legal malice means and implies an
action of the State or the authorities not for the purpose of the Act. The
conduct of the respondent nos. 1 to 4 and the concerned authorities
appears to be aimed solely to enable the respondent no.7 to put up the
subject hotel project in the said property without examining the relevant
provisions of law. In order to attain such objective, the authorities have
indulged in legal stimulation to achieve their goal to allow the hotel
project to come up without examining whether the norms of the CRZ II
areas have been strictly adhered to. We are accordingly satisfied that
the sanctions granted to the respondent no.7 for the hotel project are
vitiated by malice in law and colourable exercise of power as the whole :46: W P NO. 333 OF 1993
exercise was to reach an end different from the one for which the power
has been entrusted to the said authorities.
23. In this context, the Apex Court in the judgment reported in
(1980) 2 SCC 471 in the case of State of Punjab and another V/s
Gurdial Singh and others has held at para 9 thus :
“9. The question, then, is what is mala
fides in the jurisprudence of power? Legal
malice is gibberish unless juristic clarity
keeps it separate from the popular
concept of personal vice. Pithily put, bad
faith which invalidates the exercise of
power-sometimes called colourable
exercise or fraud on power and
oftentimes overlaps motives, passions
and satisfactions-is the attainment of
ends beyond the sanctioned purposes of
power by simulation or pretension of
gaining a legitimate goal. If the use of
the power is for the fulfillment of a
legitimate object the actuation or
catalysation by malice is not legicidal.
The action is bad where the true object is
to reach an end different from the one for
which the power is entrusted, goaded by
extraneous considerations, good or bad,
but irrelevant to the entrustment. When
the custodian of power is influenced in its
exercise by considerations outside those
for promotion of which the power is :47: W P NO. 333 OF 1993
vested the court calls it a colourable
exercise and is undeceived by illusion. In
a broad, blurred sense, Benjamin Disraeli
was not off the mark even in Law when
he stated: "I repeat.........that all power
is a trust-that we are accountable for its
exercise-that, from the people, and for
the people, all springs, and all must
exist".
Fraud on power voids the order if it is not
exercised bona fide for the end designed.
Fraud in this context is not equal to moral
turpitude and embraces all cases in which
the action impugned is to effect some
object which is beyond the purpose and
intent of the power, whether this be
malice- laden or even benign. If the
purpose is corrupt the resultant act is
bad. If considerations, foreign to the
scope of the power or extraneous to the
statute, enter the verdict or impel the
action, mala fides or fraud on power,
vitiates the acquisition or other official
act.”
24. With this background, we shall now examine whether the
hotel project put up by the respondent no.7 violates any of the norms
and restrictions as provided in the CRZ II areas in terms of Notification
of 1991. The categorization of CRZ II provides thus : :48: W P NO. 333 OF 1993
“The areas that have already been
developed up to or close to the shoreline.
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.”
The norms for Regulation of construction activities in
CRZ II reads thus :
(i) Building shall be permitted neither on
the seaward side of the existing road ( or
roads proposed in the approved Coastal Zone
Management Plan of the area ) nor on
seaward side of existing authorised structures.
Buildings permitted on the landward side of
the existing and proposed road/existing
authorised structures shall be subject to the
existing local Town and Country Planning
Regulations including the existing norms of :49: W P NO. 333 OF 1993
FSI/FAR.
(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.
It would thus appear that development and/or construction
activity is permitted only on the landward side of the existing road or
road proposed in the approved Coastal Zone Management Plan of the
area or the landward side of the existing authorised structure. But
however, no such activity is permissible on the seaward side of such
road or authorised structure. Thus, having regard to the said
restrictions in CRZ II area the question which arises in the present Writ
Petition is to examine whether the hotel project of the respondent no.7
would violate the provisions of CRZ Notification as applicable to CRZ II
area. The no development zone as such in a CRZ II area would be from
an authorized structure to the H.T.L. of the river.
25. This Court by an order dated 24.11.1997 appointed Mr. F. C.
Ribeiro, Chartered Surveyor and Valuer as Court Commissioner in the
above Writ Petition inter-alia to submit a map which correctly shows the :50: W P NO. 333 OF 1993
location of the disputed property/structure - Palm Hotel in Miramar area
vis-a-vis existing structures on the bank of river Mandovi including Yatri
Niwas, Youth Hostel, Indoor Stadium and Kala Academy so as to
examine whether the disputed structure is coming towards the seaward
side or it is towards landward side and make a report on the above
points. Accordingly, the report was submitted on 12.12.1997 by the
said Court Commissioner. On perusal of the plan attached to the said
report, we find that the hotel project of the respondent no.7 is shown to
be at a distance of about 22.30 metres and 20.50 metres from the river
bank. The plan also discloses an authorised structure in the land
adjoining the subject property which is shown as Youth Hostel which is
at a distance of 37.8 metres from the river bank. A Light House which
is also located in the same adjoining land is shown to be at a distance of
approximately 18.00 to 20.00 metres from the river bank. A swimming
pool is shown of the subject hotel project very close to the river bank.
26. The Division Bench of this Court in the judgment reported in
2000(4) Mh.L.J. 708 in the case of Kisan Mehta and others V/s
State of Maharashtra and others, has observed at paras 28 and 32
thus :
“28. Counsel for the petitioners as
well as respondent No. 7 urged before
us that the CRZ Notification should be
interpreted in the background of the
objective which is sought to be :51: W P NO. 333 OF 1993
achieved. Commenting on the imaginary
line being drawn, it was submitted that
if an imaginary line is drawn parallel to
the High Tide Line connecting two
authorised structures, it may be that if a
large tract of land lies between two
authorised structures, building activity
may be permitted on the entire tract of
land, completely defeating the objective
of the Notification. It was also submitted
on behalf of the petitioners and
respondent No. 7 that even if such an
imaginary line could be drawn, the plot
in question must lie within two
authorised structures adjacent to it on
either side, and consequently in a cause
where an authorised structure existed
only on one side, such an imaginary line
could not be drawn and no development
work or even re-construction could be
permitted on such a plot. Counsel for
the Bombay Municipal Corporation and
the builders on the other hand
submitted that such is not the position,
if the letter of 8th September, 1998 is
carefully read and given meaning. It
was submitted that the clarification
contained in the letter dated 27th
March, 1998 did give an impression that
construction of building can be
permitted on the landward side of the
imaginary line drawn along the existing :52: W P NO. 333 OF 1993
authorised structures, meaning thereby
that it presupposed existence of
authorised structures on both sides of
the plot in question. This, however, was
further clarified in the letter dated 8th
September, 1998, from which it is quite
clear that it is not necessary that
authorised structures must exist on
either side of the plot. He further
submitted that an imaginary line drawn
in accordance with the Notification and
the aforesaid clarifications cannot
extend beyond the plot in question,
which must be adjacent to an
authorised structure at least on one
side. In the instant case, therefore, an
imaginary line should be drawn from the
point closest to the sea of the
authorised structure on the adjacent
plot belonging to the Bombay Municipal
Corporation and such a line should be
drawn parallel to the High Tide Line.
This imaginary line shall not be drawn
beyond the plot in question. If such an
imaginary line is drawn as contemplated
by the clarifications, it will be found that
the building in question is on the
landward side of the said imaginary line.
32. The decision of the Madras High
Court, as pointed out by Counsel
appearing on behalf of respondent No. :53: W P NO. 333 OF 1993
7, does not refer to any imaginary line,
but proceeds on the basis that if to the
South-East of the scheme area as well
as to its South-West, there were
developed areas nearer to the sea than
the scheme area, the latter must be
considered to be on the landward side of
the authorised construction.”
27. It is sought to be contended by Mr. R. Dada, learned Senior
Counsel appearing for the respondent no.7 that the remnants of stones
in the river has to be considered as an authorised structure. We are not
at all able to accept the said contention of the learned Senior Counsel
appearing for the respondent no.7. It is well settled that when the
legislature uses same words in different parts of the same section or
statute there is a presumption that the word is used in the same sense
throughout. When the draftsman has used the same word or phrase in
similar context, it must be presumed to intend it in each place to bear
the same meaning. Keeping this in mind, we find that on perusal of
clause (i) of CRZ III, it inter-alia provides that the area upto 200 metres
from the High Tide Line is to be earmarked as 'No Development Zone'
and that no construction shall be permitted within such Zone except for
repairs of existing authorised structures not exceeding the existing FSI,
existing plinth area and existing density. This clearly suggest that the
authorised structure itself should have a FSI, plinth area and subscribe
to the norms of density. Mere remnants of stones or concrete piers on :54: W P NO. 333 OF 1993
the shore to avoid sand erosion can by no stretch of imagination be
considered to have a FSI, plinth area or density. Mr. Dada, learned
Senior Counsel appearing for the respondent nos. 7 and 9 thereafter
relied upon the observations at para 35 in the judgment of the Division
Bench of this Court in the case of Kisan Mehta and others ( supra ) to
contend that even a retaining wall can be treated to be an authorised
structure. But however, on going through para 36 of the judgment, the
Division Bench held that it was not necessary to consider such question.
As such, the contention of Mr. Dada that the Division Bench had held
that a retaining wall was an authorised structure in terms of the CRZ
Regulations cannot be accepted. In any event, there is no material on
record to establish the existence of a retaining wall on the seaward side
of the concerned property as on the date of the coming into force of the
CRZ Notification of 1991.
28. In such circumstances, the only authorised structure as
noted on the basis of the plan produced by the Court Commissioner in
the proximity of the subject land and adjoining thereto is the Light
House located close to the Youth Hostel. The fact that the Light House is
a covered structure with a plinth and FSI has not been disputed by the
learned counsel appearing for the respective parties. Taking note of the
judgment of this Court and the Madras High Court, referred to herein
above, once an authorised structure in the adjacent land is found
between the impugned construction and the High Tide of the river, there :55: W P NO. 333 OF 1993
is no bar for carrying out any construction activity on the landward side
of such existing authorised structure. The fact that the Light House was
existing much before the coming into force of the Notification of 1991
cannot be disputed. Taking note of the said judgment of this Court
though arrived on the basis of the letter/clarification issued by M.O.E.F.,
with regard to the construction activity within the coastal area of
Mumbai Municipal Council nevertheless, in view of the judgment of the
Madras High Court referred to herein above, which came to be passed
much before such clarification and approved by the Division Bench of
this Court, we find that an imaginary line can be drawn parallel to the
High Tide Line of the river from the existing authorised structure and
any development towards the landward side of such line would not
infringe the provisions of the CRZ Notification of 1991. But however, in
case any structures/development is located on the seaward side of such
line it would violate the provisions of the CRZ Notification of 1991 as
such development would be in the no development zone of CRZ II area.
29. We have already observed herein above, that the burden is
on the builder – respondent no.7 herein to disclose fairly all the material
which would justify the sanctions in accordance with law. In the present
case, we find that the respondent no.7 have been fashioning their stand
on different basis. At one stage, they claim that the CRZ Notification of
1991 is not applicable to the subject hotel project as the development
started much prior to the coming into force of the CRZ of 1991. We have :56: W P NO. 333 OF 1993
already rejected such contention for the reasons herein above. The next
contention is based on the stand taken by the State Government that
the set back from the river bank should be 10 metres and that the
restrictions under CRZ Notification are only at a distance of 500 metres
from the Arabian Sea. While examining the said aspect, we have already
taken note of the fact that the executive construction of the provisions of
the Notification by the State Government are erroneous and contrary to
the express and plain reading of the provisions of the CRZ Notification of
1991. Thereafter, the respondent no.7 takes a stand that the remnants
in the river are to be considered to be an authorised structure which
aspect has also been rejected by us for the reasons stated herein above.
This divergent stands of the respondent no.7 would have to be examined
in the context that the original application or permission of the
construction licence which came to be granted in November, 1991 has
not been produced either by the respondent no.7 nor by the concerned
authorities. Such divergent stand taken by the respondent no.7 would
clearly indicate that the respondent no.7 are trying to play a game of
hide and seek and did not come in a straight forward manner accepting
the legal position and disclosing the requisite material to ascertain
whether the provisions of the CRZ Notification of 1991 have been
violated by the respondent no.7. The respondent no.7 has failed to
make a full, fair and candid disclosure of all the facts to discharge the
burden that they were entitled for such sanction. As such, we cannot be
oblivious to the fact of trust of the population of all urban cities to :57: W P NO. 333 OF 1993
ensure that the norms of the law as provided in the CRZ Notification of
1991 are strictly followed as directed by the Apex Court in the judgment
of Indian Council for Enviro-Legal Action V/s Union of India
reported in 1996(5) SCC 281. Even along with the affidavit filed by
the respondent no.7 no such application nor construction licence have
been produced. There are only references to such licence in the
affidavit. Based on such references and documents produced by the
petitioners, we have already found that the permissions were granted on
the assumption that the subject land was within CRZ II area. The CRZ
Notification has been introduced to put severe restrictions on
untrammelled depredation of environment resource. Many of the State
did not prepare the coastal zone management plan for considerable
length of period and Supreme Court was required to step in and direct
the States to submit during this interregnum i.e. prior to the preparation
of the coastal zone management plan, the sanctions could be issued
strictly in accordance with the restrictions imposed in the CRZ
Notification of 1991.
30. The permissions granted to the subject hotel project of the
respondent no.7 based on the plan submitted by the respondent no.7
appears to be on the basis of a proposed road from Yatri Niwas to Youth
Hostel along river Mandovi. In fact this proposed road which is reflected
in the said plan is also seen in the plan and now produced by the
respondent no.1 after the hearing. The contention of the authorities that :58: W P NO. 333 OF 1993
the road was approved after GSCE granted NOC for hotel cannot be
accepted. As the road was not even proposed or existing before the
hotel project was approved, such depiction of the road on the plan
submitted by the respondent no.7 become questionable. Apart from
that, the CRZ Notification stipulates that the construction can be
permitted only on the landward side of the existing road or a road
proposed in the coastal zone management plan. Admittedly, the alleged
proposed road depicted in the plan does not satisfy both the said
requirements and as such the stand of the authorities that the subject
hotel project was on the landward side of the proposed road is totally
without any substance. As already pointed out herein above, CZMP was
not approved by the Central Government at that stage and as such the
restrictions as imposed under the CRZ Notification of 1991 had to be
complied with and the respondent could not arbitrarily grant a sanction
to the respondent no.7 to put up the structures which were contravening
to the provisions of the CRZ Notification of 1991.
31. Apart from that, we have also on the basis of the
Commissioner Report found that the only structure which can be
considered to be an authorised structure between the hotel project of
the respondent no.7 and the High Tide Line of the river in the adjoining
land is the Light House. Based on these findings, the authorities will
have to examine whether any development/construction activity at the
site from the line referred to above would violate the norms of CRZ II :59: W P NO. 333 OF 1993
area in the CRZ Notification of 1991. We have to keep in mind that the
provisions of the CRZ Notification have been conceived to maintain high
public purpose to subserve in protecting the ecology and conserving the
environment. The Division Bench of this Court in the case of Overseas
Chinese Cuisine (India ) Pvt. Ltd., & another V/s The Municipal
Corporation of Greater Bombay & others, reported in 2000(1)
Bom. C. R. 341 held that the CRZ Notification embodied the principle of
“ containment” and “toleration” and that the building activity permitted
under the Notification in CRZ II area shall be frozen to the laws and
norms existing on the date of the Notification. In such circumstances,
the only authorised structure which was in existence as on the date of
the Notification can be the Light House as depicted in the plan attached
to the Court Commissioner's report.
32. No consideration should be shown to the builder or any other
person when the construction is illegal and unauthorised. This dicta is
now almost a rule of law. The stress was laid by the respondent no.7 to
exercise jurisdiction by moulding the relief and avoid any demolition of
the hotel project of the respondent no.7. Such discretion cannot be
exercised which would encourage illegality or perpetual illegal
unauthorised construction. The Judicial discretion cannot be guided
contrary to law. The Judicial discretion whenever exercised has to be in
accordance with law and settled legal principle. In the present case, the
respondent no.7 proceeded with the hotel project as the interim relief :60: W P NO. 333 OF 1993
was refused by this Court. It may be correct that the respondent no.7
has invested a considerable amount on the construction which by every
standard appears to be to a starred construction. The respondent no.7
has taken such a risk though the interim order was made specific that
such order would not come in the way of deciding the petition on its own
merits. This itself shows that the construction activities carried out by
the respondent no.7 was at its own risk. The primary concerned of the
Court is to eliminate the negative impact. The construction activity which
comes within the CRZ area has to be eliminated as otherwise it would
affect the environmental conditions in ecologically vulnerable areas and
deprive the citizen of Panjim from moving into the picturesque Miramar
beach situated adjoining the subject hotel project. In case any
construction has been put up by the respondent no.7 towards the river
side of a line to be drawn from the Light House parallel to the High Tide
Line, such construction is contrary to the restrictions imposed in the CRZ
Notification which this Court cannot condescend as there should be no
judicial tolerance to illegal and unauthorised construction. As such, the
authorities would have to comply with the directions herein to ensure
that if any construction activity is located towards the river side, of such
imaginary line to be drawn, such construction activity being illegal
cannot be allowed to continue and action would have to be taken to
restore the said area to its original condition.
33. The Apex Court in the judgment reported in AIR 2013 SC :61: W P NO. 333 OF 1993
page 927 in the case of Dipak Kumar Mukherjee Vs Kolkata
Municipal Corporation and others has held at paras 8 and 9 thus :-
“8. What needs to be emphasised is that
illegal and unauthorised constructions of
buildings and other structure not only
violate the municipal laws and the concept
of planned development of the particular
area but also affect various fundamental
and constitutional rights of other persons.
The common man feels cheated when he
finds that those making illegal and
unauthorised constructions are supported
by the people entrusted with the duty of
preparing and executing master
plan/development plan/zonal plan. The
reports of demolition of hutments and
jhuggi jhopris belonging to poor and
disadvantaged section of the society
frequently appear in the print media but
one seldom gets to read about demolition
of illegally/unauthorisedly constructed
multi-storied structure raised by
economically affluent people. The failure of
the State apparatus to take prompt action
to demolish such illegal constructions has
convinced the citizens that planning laws
are enforced only against poor and all
compromises are made by the State
machinery when it is required to deal with
those who have money power or unholy :62: W P NO. 333 OF 1993
nexus with the power corridors.
9. We have prefaced disposal of this
appeal by taking cognizance of the
precedents in which this Court held that
there should be no judicial tolerance of
illegal and unauthorized constructions by
those who treat the law to be their subservient,
but are happy to note that the
functionaries and officers of Kolkata
Municipal Corporation (for short, ‘the
Corporation’) have been extremely vigilant
and taken steps for enforcing the
provisions of the Kolkata Municipal
Corporation Act, 1980 (for short, ‘the 1980
Act’) and the rules framed thereunder for
demolition of illegal construction raised by
respondent No.7. This has given a ray of
hope to the residents of Kolkata that there
will be zero tolerance against illegal and
unauthorised constructions and those
indulging in such activities will not be
spared.”
34. Considering the view taken by us, we prima facie find that
there is development/ construction activity carried out by the
respondent no.7 which may include the swimming pool and the
compound wall towards the seaward side of the imaginary line to be
drawn from the Light House referred to in the said plan. It is pertinent
to note that at para 6 of the affidavit of Mr. E. R. Godinho who was a :63: W P NO. 333 OF 1993
Member Secretary of the North Goa Planning and Development
Authorities he has stated that on 16.06.1997 the respondent no.7
sought development permission for construction of a retaining
wall/compound wall around the said property. As such wall was coming
along the bank of Mandovi river the matter was referred to the Goa
State Committee of Coastal Environment – respondent no.3 herein.
Pursuant thereto such wall came to be constructed. The permission
granted in the year 1997 is after the Coastal Management Plan was
already approved by the Central Government and the compound wall
was allowed to be constructed in CRZ II area. In such circumstances,
allowing the construction of such wall without examining whether it
comes on the seaward side of an existing authorised structure as
existing in 1991 would totally violate the restrictions and norms of the
CRZ Notification of 1991.
35. Another aspect to be noted is that as per the affidavit of the
Chief Town Planner, the distance from the Bank to the hotel building is
shown to be 23 metres. Even in the inspection report submitted by the
Court Commissioner, the distance is more or less the same. But,
however, as per the plans which were revised in the year 1997, there
are structures including swimming pool, retaining walls, etc, which are
prima facie situated within the said distance of 23 metres. The
permissions to that effect appear to have been granted in the year 1997
based on the plans produced by Shri H.D. Naik, learned Counsel :64: W P NO. 333 OF 1993
appearing for the respondent No.1. Such permissions, prima facie, did
not meet the restrictions imposed by the CRZ Notification of 1991. In
such circumstances, we find that the concerned Authorities including the
respondent No.3, now the Goa Coastal Zone Management Authority
would have to re-examine the constructions put up by the respondent
No.7 in the area towards the river side of an imaginary line to be drawn
from the Light House, parallel to the High Tide Line, along the river,
across the subject land where the hotel project of the respondent No.7
is located. We have no sufficient material on record to clearly identify
the High Tide Line at loco to conclusively ascertain whether any
building/structure put up by the respondent no.7 is located towards the
river side of such line to be drawn from the Light House parallel to the
High Tide Line. If any construction activity is carried out on the river
side it would have to be dealt with by the respondent Nos.1 to 4, after
hearing the respondent No.7 in accordance with law, as necessary
action would have to be taken in case any such structure violates the
CRZ Notification of 1991. As such, we find that the concerned
authorities namely the respondent nos. 1 to 4 or now GCZMA would
have to re-examine whether the swimming pool, the compound wall or
any other development/construction activity carried out by the
respondent no.7 is located towards the seaward side of such line drawn
parallel to the High Tide Line from the Light House as pointed out
herein above and take necessary action accordingly in accordance with
law. To that extent, the said sanction dated 29.11.1991 and the subject :65: W P NO. 333 OF 1993
revisions stand vitiated.
36. Mrs. N. Alvares, learned counsel appearing for the petitioners
has also brought to our notice the fact that the respondent no.7 has kept
a path to access the beach between the Youth Hostel and the subject
hotel project for the benefit of the public. Such access cannot be
obstructed and has to remain open to make the beach accessible to the
public at large. It was also pointed out that there are some difficulties
to access the beach from such path. The respondent no.2 shall as such
take necessary measures to make such path accessible to the public in
accordance with law.
37. In view of the above, we pass the following :
 O R D E R
(i) The respondent nos. 1 to 4 or any other
designated competent authority shall proceed to
examine whether any of the construction activities
carried out by the respondent no.7 comes towards
the river side of the imaginary line to be drawn from
the Light House shown in the plan of the Court
Commissioner parallel to the High Tide Line in the
manner as stated herein above and thereafter
proceed to take necessary action against the
respondent no.7 for restoring such area in 
accordance with law within six months from today.
(ii) The respondent no.2 shall take all measures to
prevent the erosion of the bank and siltation of the
river Mandovi along the concerned land of the
respondent nos.7 and 9.
(iii) The respondent nos.7 and 9 shall not obstruct
the access of the public to the subject beach through
the said reserved path and the respondent no.2 shall
take all measures to make such path accessible to
the said beach in accordance with law.
(iv) Rule is made absolute in the above terms.
(v) The petition stands disposed of accordingly with
costs.
 K. L. WADANE, J F. M. REIS, J
at*  :67: W P NO. 333 OF 1993
JUDGMENT CONTINUED
Dated : 29th June, 2015
At this stage, Shri J. Supekar, learned Counsel appearing for
the Respondent nos. 7 and 9, seeks stay of the Judgment passed today
for a period of eight weeks.
2. Mrs. Alvares, learned Counsel appearing for the Petitioners,
objects.
3. But, however, in the facts and circumstances of the case, the
operation of the Judgment passed today is stayed for a period of eight
weeks from today.
K. L. WADANE, J F. M. REIS, J
arp/*