People''s Movement for Civic Action Through General Secretary and Another vs Goa Coastal Zone Management Authority and 6 Others.

R.C. Chavan, J.—After hearing the matter for final disposal, we are inclined to pass an order on this civil application, since, in the course of hearing, it seems that the decision of the National Coastal Zone Management Authority, recorded in the form of Minutes dated 30.10.2007 holding in favour of respondents No. 6 and 7, may have to be challenged by the petitioners by seeking an amendment to the petition. This is an application seeking a direction to respondents No. 6 and 7 to stop work and maintain status quo within 100 metres of High Tide Line (.i.e. in the no development zone) in Survey Nos. 12/1 and 99/2 of Village Bambolim, filed on 19.11.07, came up for hearing quite a few times. By order dated 28th April, 2008, the petition itself was directed to be listed for final hearing on 25th June, 2008.

Accordingly, final hearing actually commenced on 8.7.08 and was continued till today. In course of arguments, it was pointed out that National Coastal Zone Management Authority had recorded on 30.10.07 minutes of its decision in the matter upon a reference by the Central Government. In the order dated 17.09.07, this Court had noticed that a reference by Central Government to National Coastal Zone Management Authority was pending and, therefore, directed National Coastal Zone Management Authority to decide the same on its own merits, after giving personal hearing to all the parties. This Court had further directed that the respondents No. 6 and 7 would have the liberty to challenge the order of National Coastal Zone Management Authority should it be adverse to them. In that event, petitioners were also given liberty to press for interim relief. This order, inter alia, stipulated that any further construction will be at the risk of respondents No. 6 and 7 and would be subject to further orders passed in the petition. The present application was made after National Coastal Zone Management Authority decided the reference in favour of respondents No. 6 and 7.

Since the petitioners had not challenged the decision of National Coastal Zone Management Authority rendered on 30.10.07, and the respondents urged that in face of the decision, a challenge to construction may not be maintainable, the learned Counsel for the petitioners submitted that she may be granted time till 7th August, 2008 to apply for appropriate amendment to the petition, incorporating a challenge to decision dated 30.10.07 rendered by National Coastal Zone Management Authority. In view of this development, the present application had to be heard, though by order dated 28.4.08 on the application, the petition itself was to be heard finally.

Learned Counsel for respondents No. 6 and 7 opposed this request contending that petitioners had not made out any case for grant of interim relief now, particularly after National Coastal Zone Management Authority had held in favour of respondents No. 6 and 7. He further submitted that order dated 17.9.07 adequately safeguards the cause which petitioners are espousing by directing that construction would be at the risk of respondents No. 6 and 7 and subject to result of the petition. The learned Counsel for petitioners submitted that this does not adequately safeguard environmental interests.

Normally question of grant of interim relief at this stage would not have arisen, but for the fact that petitioners have been able to prima facie show that there was in fact no construction activity in pursuance of amendment of 18.8.94 to notification dated 19.2.91, permitting construction from 50 metres of High Tide Line which was quashed by judgment of the Supreme Court in Indian Council for Enviroment-Legal Action Vs. Union of India (UOI) and Others, . Affidavit dated 14.9.07 of Mr. Pascol Trinidade, a director of respondent No. 6 categorically shows, that from 1997 to 2005 there was no construction activity, and when the activity was sought to be resumed, the plinth and other structures were so damaged that they had to be removed. This would create a doubt as to whether the construction could qualify to be an "ongoing project" as concluded by National Coastal Zone Management Authority.

When the Apex Court struck down amendment restricting NDZ to 50 metres only, ordinarily all activities between 50 to 100 metres from HTL must cease, since they offend the need to protect coastlines from environmental hazards. Apex Court had left it to High Courts to deal with allegations relating to infringement of relevant notifications, obviously with the view that the High Courts would be in a better position to decide how equities could be adjusted in individual cases. Had the construction by respondents No. 6 and 7 been completed, or was nearing completion, possibly, respondents No. 6 and 7 could have urged that such construction be protected. But here on admission of respondent No. 6 the construction was to commence de novo after 2005, very much after the judgment of Apex Court in 1996. Hence, at least tentatively, its continuance would do harm to the spirit of the observations in the judgment. Since continuation of construction of a structure of doubtful legality would itself inflict an injury on the coastline, its eventual demolition would obviously take a further toll of the environs, we find that it would be necessary to grant interim relief, directing the parties to maintain status quo in respect of construction within 50 - 100 metres of HTL on survey Nos. 12/1 and 99/2 till the matter is finally heard, after petitioners file application for amendment. Such application may be filed on or before 7th August, 08, after furnishing copies to all respondents, who may keep their responses ready. By consent, the petition is directed to be posted for final hearing on a date convenient to parties, to be fixed within two weeks of 7th August, 2008.

At this stage, learned Counsel for respondents No. 6 and 7 seeks stay of this order on the ground that the construction is going on. Since the order prohibits only construction within 50 to 100 metres from the High Tide Line and that too for a limited period, no case for stay of this order is made out. Prayer refused. The learned Counsel for petitioners mentioned that there is no progress in investigation relating to files pertaining to the project, missing from Offices of Town and Country Planning Department and the Village Panchayat, and requested that the investigation be made over to CBI. The learned Advocate General seeks four weeks'' time to file progress report in respect of the investigation into the missing records of the Town and Country Planning Department as well as the Village Panchayat. Hence no further directions are necessary in this regard. Application disposed of.

S.O. 7th August, 2008.