Supreme Court of India

GOA FOUNDATION, GOAversusDIKSHA HOLDINGS PVT. LTD. AND ORS.

Citation: 2000 INSC 516
Decided: 10 November 2000
Disposal: Dismissed
Bench: G B PATTANAIK

Holding

The Supreme Court held that the plot lies in CRZ‑III, the environmental clearance was valid, no provision of the CRZ Notification or the Environment Protection Act was infringed, and therefore the appeal was dismissed.

Summary

The Goa Foundation challenged the permission granted to Diksha Holdings for constructing a beach‑resort hotel on a plot in Nagorcem, Goa, alleging that the land fell within Coastal Regulation Zone‑I (CRZ‑I) where construction is prohibited and that the clearance violated the Environment Protection Act, 1986. The High Court had held that the plot was in CRZ‑III, that the Ministry of Environment and Forests had examined all relevant material, and that the hotel would not disturb sand dunes, dismissing the writ. On appeal, the Supreme Court examined the classification of the land, the applicability of the CRZ Notification, and a later report from the National Institute of Oceanography. It found that the plot was correctly classified as CRZ‑III, that the environmental clearance was lawfully granted, and that no authentic evidence showed any infringement of the CRZ provisions or ecological damage. Consequently, the appeal was dismissed. The Court also rejected the request to remit the matter for fresh consideration despite the new report.

Issues considered

Whether granting environmental clearance for the hotel contravenes the Environment Protection Act, 1986 and the Coastal Regulation Zone Notification.
Whether the disputed land is situated in CRZ‑I (prohibited) or CRZ‑III (permissible) and thus the construction is illegal.
Whether there is authentic material establishing that the hotel would damage sand dunes and the coastal ecological balance.
Whether the matter should be remitted to the Ministry of Environment and Forests for reconsideration in view of the National Institute of Oceanography report.

Legislation cited

Environment (Protection) Act, 1986s. 3(1), s. 3(2)(v)
Environment (Protection) Rules, 1986s. 5(3)(d)

Subjects

environmental lawcoastal regulation zoneCRZ‑IIIenvironmental clearancesand dunespublic interest litigationbalancing development and environmentCoastal Zone Management Plan

Judgment

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

NOVEMBER 10, 2000

B [G.B. PATTANAIK AND UMESH C. BANERJEE, JJ.]

Environment Protection Act, 1986: Ss. 3(1) and 3(2) (v)-Environment
Protection Rules 1986: Rule 5(3) (d).

c Environment law-Coastal zones-Notification for regulation of
activities-Goa Coastal zone-Permission for construction of hotel-Effect
on environment and beach-Proposal for construction scrutinised by various
agencies-Clearance of project given by Expert Committee and Ministry of
Environment-Permission for construction ofhotel granted after consideration
D ofrelevant and germane materials-Writ challenging permission-Dismissal-
Held hotel Plot was situated in CRZ-111 under the Coastal Zone Regulation
Notification-held there was no infraction of any of the provisions of CRZ
Notification-There was no illegality in granting permission for construction
of hotel.

E Environmental law-Environmental protection-Need for development,
Harmonization and balancing of these two issues-Need for.

Environmental law-Beach-Sand and Sand dunes-Nature and impact
of

F Respondent No. 1, Mis. Diksha Holdings Pvt. Ltd. applied to Town and
Country Planning Department for permission to the construction of a beach
resort in Goa. The application for grant of sanction for the proposed
construction was srcutinised by statutory agencies. The Chief Planner
submitted its report to the Ministry of Environment and Forest stating that
G construction of the proposed hotel will not affect environment equilibrium and
biodiversity of coastal area. After taking opinion of the Secretary, Department
of Science, Technology and Environment, the Ministry of Environment granted
clearance of the project. On getting clearance from the Ministry of
Environment and Forest, the Cancona Municipal Council granted licence for
construction of hotel on a plot of land situated in the area of Nagorcem,
H Palolem, Taluka-Cancona, Goa.
502
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT. LTD. 503
The appellant-foundation, an organisation committed to preserve the A
environment and ecology of the coastal zone, filed a writ petition before the
Bombay High Court seeking a direction to restrain respondent No.I from
constructing the proposed hotel. The grounds urged in support of the petition
were: (1) Under the Notification issued by the Central Government for
regulation of Coastal Zones in the Country, the land in question comes within B
CRZ-1, and as such it is not permissible to have any constructions on the
disputed plot of land; (2) the plan and sanction obtained for such construction
from the competent authority are in contravention of the p_rovisions of the
Environment Protection Act, 1986 and permission has been granted by the
concerned authority without ap~lication of mind and without considering the
relevant materials; and (3) as there exist large number of sand dunes, C
constructions of hotel will ultimately lead to irreversible ecological damage
of the coastal area.

The High Court adopted a balancing approach of maintaining and
preserving the environment and ecology of pristine beach with sand dunes
and development of hotels and holiday resorts for economical development of D
the State. It took into account (i) the approval of the Ministry of Environment
. and Forest; (ii) expert committee's recommendations recommending the hotel
project and indicating that the existing sand dunes will not be disturbed; (iii)
several inspections carried on by the different authorities and the fact that
the Chief Town Planner submitted its report to the Ministry of Environment E
and Forest, stating therein that the construction of the hotel will not affect
the sand dunes; and (iv) the report submitted by Director, Science and
Technology. It came to the conclusion that the appropriate authority has
ac.corded permission for construction of the hotel after consideration of
relevant and germane materials and that the writ petitioner has failed to
establish any illegality in the matter of grant of such permission. It recorded F
a finding that the State Authorities as well as the Central Government were
aware of the existance of sand dunes formation up-to 200 meters strip from
shore line where no construction is permitted and beyond the said 200 meters
strip within which hotel complex is proposed to be built up is under category
CRZ III and as such there is no prohibition for construction of the hotel within G
that area. The High Court accordingly, dismissed the writ petition filed by
the Goa Foundation.

Against the Judgment of the High Court, appeal was preferr~d before
this Court. During the pendency of appeal before this Court a report was
obtained from the National Institute of Oceanography. Two of the scientists H
504 . SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R

A who w~re authors of this report were'_members .ofthe Coa State Committee
.for Coastal Environment They had not-objected to the approval of the hotel
plan in their earlier reports. However, i~ thissubsequent report they indicated
.that the permission granted for· the hotel would have the effect of demolishing
the sand dunes. Relying on this report it was contended on behalf of the
B appellant that the matter should be remitted to Ministry of Environment and
Forest for reconsider·aticin.

The questions for consideratio~ iii this appeal are:

1. Whether ther~ exists any infraction of any'rule, regulation or law
by granting environmenta! cl~ara itce in favour of the respondent
1

c to have the hotel complex?

2. Whether the~e exists any.authentic data or material for coming
to a conclusion that ;aitction for hotel complex at the aisputed plot
would upset the environment and ecological balanceiofthe area nnd
would really have the effect_.ofdamagingJli.e pristine beach with
D sand dunes, if any?

Dismissing the appeal, the Court

HELD: Per Pattanaik, J.

E I.The disputed plot is situated in Category CRZ III and was available
for development by way of construction of hotel/beach resort in the
development pla~ of Goa, which was duly approved by the Central Government
and the activities in question cannot be held to be prohibited activity under
the initial notification of the Govt. oflndia. (519-E-F]

F . 2. The appellant has utterly failed to establish by referring to any
authentic material that there has bee·n an 'infraction of any provisions of the
cl~Z-Notification or the approved management Plan of Goa nor is there imy
illegality in the order of the Government of India, granting environmental
clearance as well as the order of the State Auth~rities in sancti6ning the
project on the basis of such environmental clearance. [520-F]
•>-l;:·
G
3. Ministry of Environment and Forest, issued the Notification on 19th
of February, 1991 in exercise of powers under Section 3 (1) and Section 3(2)
(v) of the Enviro_nment Protection.Act, 1986 and rule 5 (3) (d) of the
Environment Protectio'n Rules, 1986, declaring Costa! Stretches as Coastal
Regulation Zone (CRZ) and Regulating Activities' in the CRZ. Paragraph 2
H of the aforesaid notification declares certain activities as prohibited activities
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT.LTD. 505

within the CRZ. Paragraph 3 provides that all other activities, except those A
prohibited in para 2 will be regulated, as indicated under the said paragraph.
Coastal stretches in the country are classified into three categories namely
CRZ-1, CRZ-11, and CRZ-111. Paragraph 6 of the Notification provides the norms
for regulation of the activities and so far as CRZ-1 is concerned, it
categorically provides that no new construction shall be permitted within 500 B
meters of the High Tide Line and no construction activity, except as listed
under 2(xii), will be permitted between the Low Tide Line and the High Tide
Line. By the proviso, certain constructions have been permitted, like
construction of dispensaries, schools, public rain shelters, community toilets,
bridges, jetties, water supply, drainage and sewerag~ etc. Under CRZ-111, an
area upto 200 meters from High Tide Line is to be earmarked as No C
Development Zone. But development of vacant plots between 200 meters and
500 meters of High Tide Line in designated areas ofCRZ-111 with the prior
approval of Ministry of Environment and Forest is permitted for construction
of hotels/beach resorts, subject to the conditions stipulated in the guidelines
at Annexure-ll. (515-F-H; 516-A-D)
D
4. Under the main notification issued by the Government of India, ti.e
Coastal States and Union Territory Administration were required to prepare
within one year from the date of the notification, Coastal Zone Management
Plan, identifying and clarifying the Regulation Zone Areas within the
respective territories, in accordance with the guidelines contained in the main E
Notification and those plans were required to be approved with or without
modifications by the Ministry of Environment and Forest, Govt. of India. The
Notification of the Union oflndia further stipulates that within the framewotk
of the approved Management Plan, all developments and activities within the
Regulation Zone, except the prohibited activities and those which required
environmental clearance from the Ministry of Environment and Forest, Govt F
of India, were to be regulated by the State Government The Goa State Coastal
Zone Management Plan stood approved by the Govt. of India Ministry of

- Environment and Forest on 27th of September, 1996 with certain conditions
mentioned in the letter and this approval purports to have been accorded in
exercise of powers vested in the Central Government under Section 3 (3) (1)
of the CRZ Notification of1991."ln the State of Goa, so far as Cancona Taluka
G

is concerned, in which Ta Iuka, the proposed hotel of the respondent situates,
the whole of Cancona Taluka is classified as CRZ I , except settlement area,
which is classified as CRZ III and in Nagorcem area, the entire area is
classified as CRZ I, except settlement area which is classified as CRZ Ill.
According to the various reports submitted by the State Government to the H
506 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A Govt. of India as well as reports obtained by the Union of India through its
own scientists, in the area, where the permission has been accorded for
construction of hotel, lot of settlement and built up structures are available
like temples, schools etc. and that the plot of land is located beyond 200 meters
of the High Tide Line. On going through the aforesaid CRZ Notification issued
by the Government of India as well as the approved Coastal Zone Management
B Plan of State of Goa, it cannot be said that there has been an infraction of any
provisions, and by allowing construction of hotel on the land, the authorities
have allowed certain prohibited activities. [516-G-H; 517-A-E)

5. From the materials on record, it is clear that the area of the proposed
C construction is designated as settlement area and the same has been
categorised as CRZ III in the approved Coastal Zone Management Plan of Goa.
The proposal for construction of hotel was thoroughly examined by the
Ministry, including a visit to the site where the construction of hotel is
proposed and the sand dunes and only after satisfying that the construction
of the project was not on the sand dunes, the approval for the project was given
D by the Union Ministry of Environment and Forest. [517-F-H)

6~ The appellant-Goa Foundation, had flied its objectfons before the
environment authorities, requesting not to grant environmental Clearance
and it is because of such objections, the department of Environment and Forest
E had taken adequate care in obtaining reports from different sources including
their own source and then, ultimately came to the conclusion that there
possibly cannot be any objection to allow the hotel project to come up at the
place particularly, when there exist several earlier settlements and structures
over the area. On these mass of materials and those materials having been
obtained after the appellant objected to grant of environmental clearance to
F the hotel project, when the Central Government granted the environmental ..'
clearance, there is no infirmity with the said grant of clearance nor it can be
said that the conclusion of the competent authority are based on non-

-
consideration of any relevant and germane materials. On the other hand, the
Central Government has taken due care in obtaining reports from the
G authorities of the Goa Government as well as deputed its own scientists to
have a spot inspection and report about the feasibility of the hotel project being
cleared up. [519-B-El

7. The subsequent report of the National Institute of Oceanography
obtained by the appellant cannot be considered for coming to a conclusion
H that the conclusion of the environmental authorities and the consequential
GOA FOUNDATION, GOA 1·. DIKSHA HOLDINGS PVT.LTD. 507
clearance of the project is either based on non-consideration of the relevant A
materials or ignoring any vital material, requiring re-consideration, more
so, when the structural constructions of the hotel project is nearing
completion. While the matter was pending in this court, the Goa Foundation
wrote a letter to the Director of National Institute of Oceanography, asking
some clarification and comments in relation to the pending appeal of the Goa B
Foundation in this court and it is in the context, the National Institute of

- Oceanography has given the report. Two of the scientists, belonging to the
National Institute of Oceanography who were the authors of the report were
Members of the Goa State Committee for Coastal Environment and they were
signatories to the approved plan and they never objected to the aforesaid
approved plan, though now, they indicate that permission granted for the hotel C
would have the effect of demolishing the sand dunes. The present report of
National Institute of Oceanography, if read with the letter of the Goa
Foundation unequivocally indicates that the Goa Foundation had obtained this
report just to nullify the environmental clearance, granted by the Department
of Environment and Forest. On the basis of such report the prayer that the
matter should be remitted back to the Department of Environment and Forest D
for re-consideration of their approval granted earlier cannot be granted.
(520-D, E; 519-G-H; 520-A-D)

People United for Better Living in Calcutta-Public and Anr. v. State
of West Bengal and Ors., AIR (1993) Calcutta 215 and Indian Council for E
Enviro-Legal Action v. Union of India and Ors., 11996) 5 SCC 281, referred to.

Per Banerjee, J. (Supplementing)

1. The application for grant ofsanction for the proposed construction
was scrutinised by statutory agencies including the State Environment F
Department as also the Ministry of Environment and Natural Resources of
the Government of India. The Government of India, as a matter of fact examined
the issue upon obtaining a special Report of two very eminent scientists of
the country. The Report as obtained by the Government of India has been on
actual specific verification of the site in question and it is on the clearance G
from the Central Government that the State Government in its bid to have a
balance for development and ecology also c.onsidered the issue and upon due
deliberation thereof granted the sanction. The area is in CRZ-llJ and not CRZ-
1. Government's sanction and Ministry of Environment's clearance - both
Central and State Government have proceeded on the basis thereof and there
is no contra evidence so as to depict its coastal-zone characteristics other H
508 SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R.

A than CRZ-111. 1527-D-E; 529-D-El
2. "Sand" in common English parlance cannot but mean and include

-
'minute fragments resulting from wearing down of siliceous rocks found
covering parts of the sea-shore, river-beds, deserts'. It is a product of abrasion
or break down of older parent or source rocks. Admittedly, the dunes provide
B a beauty to the area in question and nature's bounty stands very well exposed
in the dunes but sand, it is to be noted is also used for commercial purposes,
but the factum of the same being capable of a commercial item, has not been
delved into either of the parties in the course of the submissions. Non-
availability of any evidence of alteration or physical, biological and geological
C characteristics of sand dunes ought also to be noticed and taken into
consideration. The factum of affectation of micro climate downwind of the sand
dune area and the resultant effect therefor has also not been highlighted so
as to warrant any adverse finding pertaining to the project There is not even
existing an iota of evidence as regards the resultant damage on the vegetation
top soil or topographic features neither any evidence pertaining to the
D elimination of existing flora and fauna of the area in question, no details are
available as regards the plants species which otherwise be threatened in the
event of these being such a project. Respondents have given an assurance or
undertaking not to disturb the existing sand dunes. It has been candidly
submitted that as a matter of fact, there has been a change in the plan and the
E new revised plan contain maintenance of the sand dunes since on an appraisal
of the entire situation it has been felt that the dunes would otherwise enhance
the beauty of the hotel or the beach resort.1524-E; 527-G-H; 528-8-C, Fl

Concise Oxford Dictionary:

F Mcgraw-Hill Encyclopedia of Science and Technology 6th Edn. and
New Encyclopedia Britannica, Vol. 10, referred to.

3. The two scientists of the National Institute of Oceanography were
members of the Committee which investigated the ecological aspect of the
issue and on being satisfied and there being no affectation of the environment,
G the Committee recommended the same upon recording of signature as a mark
of approval of all members including the two who later gave a report otherwise.
Court reserve its doubts as to the credence to be attributed to the said regrant
report of the National Institute of Oceanography. The affectation admittedly
cannot possibly be a mere fanciful idea but there ought to be cogent materials
in support therefore. Unfortunately, there is no cogent evidence or any evidence
H available in the matter so as to come to a conclusion about the disturbed
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT.LTD. 509

environmental equilibrium by reason of the change of bio-diversity in the area A
in question rather the records suggest otherwise. (527-F, 528-D)

4. While it is true that nature will not tolerate after a certain degree of
its destruction and it will have its toll definitely though may not be felt in
presenti and the present day society has a responsibility towards the posterity
so as to allow normal breathing and living in cleaner environment but that B
does not by itself mean and imply stoppage of all projects. (522-8)

5. Protection of environment is required undoubtedly provided however
the same is required. Coastal Zone shall have to be protected undoubtedly but
development of the area cannot be decried also in any way provided however,
there is no environmental degradation. The record of Rights has recorded C
the area in question to be a beach resort and admittedly also settlement, in
fact, is existing in the area in question, even today. It is not that a hitherto
unspoiled coastal zone is being spoiled, it is even presently being occupied by
human settlement. (528-G-H; 529-A-BI

People United for Better living in Calcutta - Public and Anr. v. State of D
West Bengal, AIR (1993) Calcutta 215, referred to.

6. Since each beach is different in its contour, there is no fixed formula
for its management either. Coastal Zone of Goa attracts tourists by reason of
availability of nature's bounty but infrastructural facility is also required to
develop this recently growing tourism industry provided, of course, there is E
no permanent affectation of environment in the area in question. The records
depict that the issue of affectation of environment, be it permanent or even
temporary does not and cannot arise in the contextual facts. Environment is
beauty, environment is our sustenance, as such in the event the same perishes,
humanity also would perish, may not be today or tomorrow but certainly a day F
or two later. (529-D-F)

7. Therefore, on the issue whether there is a degradation of environment
in the event of construction, the records speak volumes in the negative.
Environmentalists opine in the negative. The court would not be justified in
thwarting the project in the contextual facts. (529-G) G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of2000

From the Judgment and order dated 8.10.99 of the Bombay High Court
in W.P. no. 4594 of 1999

In-person for Appellant: H
510 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A P. Chidambaram, and l.M. Chhagla, Nina Gupta, Ranjit Kumar, Ms. Arpita
Sharma, Ms. Jaya and Vineet Kumar for the Respondents.

B
Mukul Rohtagi, Ms. A. Subhashini, Ashok Bhan and S.K. Dwivedi for
the State of Goa.

The Judgments of the Court were delivered by
-
PATT ANAIK, J. This appeal by the Goa Foundation, is directed against
the judgment of the Bombay High Court dated 8th of October, 1999, dismissing
the wdt petition filed by the appellant. Initially, the appeal had been filed
C through counsel, but later on, the appearing counsel having withdrawn, the
appeal was argued by the Secretary of the Goa Foundation, Dr. Claude
Alvares. The appellant filed the writ petition before the High Court as a Public
Interest Litigation, objecting to the construction of a hotel on a plot of land
situated in the area of Nagorcem, Palolem, Taluka-Cancona, Goa, inter alia,
on the ground that the land in question comes within CRZ-1, and as such it
D is not permissible to have any construction on the same plot of land. It was
also contended that the plan and sanction obtained for such construction
from the competent authority, are in contravention of the provisions of the
Environment (Protection) Act and such permission has been granted by the
concerned authority without application of mind and without considering the
E relevant materials, and, therefore, the Court should issue mandamus, injuncting
the hotelier- Diksha Holdings Pvt. Ltd., from constructing the proposed hotel
on the disputed plot of land. It was also contended before the High Court
that there exist large number of sand dunes and by permitting the respondent
to have the hotel complex on the plot of land will ultimately lead to irreversible
ecological damage of the coastal area, and, therefore, the Court should prevent
F such construction. The High Court in the impugned judgment, took into
consideration the balancing task of maintaining and preserving the environment
and ecology of the pristine beach with sand dunes and the development of
hotels and holiday resorts for economical development of the State. It also
took into account several Acts and Regulations like Town and Country
G Planning Act, the CRZ Notification, the Coastal Zone Management Plan. It
also took into account the approval of the Ministry of Environment and
Forest, under which the disputed hotel complex comes as CRZ-111, the Court
also took into account the Expert Committee's recommendations, recommending
the hotel project for environmental clearance, indicating therein that the
existing sand dunes will not be disturbed in any manner and also the fact that
H the Goa Foundation had submitted its representation to the Ministry of
GOA FOUNDATION,GOAv. DIKSHA HOLDINGS PVT. LTD. [PATTANAIK,J.] 511 ·.
Environment and forest, objecting to the construction of the hotel at the A
disputed location. The High Court also took into account several inspections
carried on by the different authorities and the fact that the Chief Town Planner
submitted its report to the Ministry of Environment and forest, stating therein
that the construction of the hotel will not affect the sand dunes. The High
Court also had privilege of going through the report submitted by Dr. N.P.S. B
Varde, the Director of Science, Technology and Environment, Goa, who had
categorically indicated that the hotel project is located on undistributed beach
eco-system which has mostly gradually undulating landscape covered with
stable dune vegetation which in a strict technical sense can be classified as
sand dunes, and he was also of the opinion that if such technical view is
taken, no development can ever be taken place along with the sea coast of C
Goa. The Ministry of Environment and Forest also had taken the opinion of
'the Secretary, Department of Science, Technology & Environment on the
question whether sand dunes exist at the site of proposed hotel. The Ministry
of Environment and Forest also sent one of its Scientists Dr. R. Warrier to the
place where the hotel complex was to come up and said Dr. Warrier submitted
his inspection report on 16th of September, 1997 and it is only after that, the D
Ministry granted clearance on 9th of October, 1997. On getting such clearance
from the Ministry of Environment and Forest, the Cancona Municipal Council
granted license for construction of hotel on 16th January, 1998. On these set
of materials and applying the law relating to the approach of a Court in a
Public Interest Litigation, the High Court came to the conclusion that the E
appropriate authority have accorded pennission for construction of the hotel
on the disputed site, after consideration of relevant and germane materials
and the writ petitioner has failed to establish any illegality in the matter of
grant of such pennission. The High Court recorded a finding that the State
Authorities as well the Central Government were aware of the existence of
sand dunes formation up-to 200 meters strip from shore line where no F
construction is permitted and beyond the said 200 meters strip within which
the hotel complex is proposed to be build up is under category CRZ llI and
as such there is no prohibition for construction of the hotel within that area.
The High Court accordingly, dismissed the writ petition filed by the Goa
Foundation.
G
Assailing the impugned judgment of the High Court Dr. Claude Alvares,
Secretary of the Goa Foundation, contended with vehemence that the
foundation is committed to preserve the environment and ecology of the
coastal zone and it is with that objective the writ petition had been filed in
the High Court, as Foundation was of the opinion that relevant materials had H

..
512 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A not been placed before the appropriate authority before the environmental
clearance was obtained from the Ministry of Forest and Environment and
before the Municipal Council sanctioned the plan for construction of the
hotel. According to the appellant, coastal stretches having been declared as
Coastal Regulation Zone (for short CRZ) in exercise of powers conferred
under Section 3(1) and 3(2)( v) of the Environment (Protection) Act, 1986 and
B rule 5(3)(d) of the Environment (Protection) Rules, 1986 and restrictions on the
setting up and_ expansion of industries having been put within the said CRZ,
which·li-es upto 500 meters of the High Tide Line, the concerned authorities
committed gross error in granting environmental clearance as well as in
granting permission to the respondent for setting up the hotel complex. The
C appellant also submitted that the existance of sand dunes having been admitted
in several reports, the disputed area in question should have been categorised
as Category I (CRZ I) which does not permit any new construction except
those listed under 2(xii) between Low Tide Line and the High Tide Line and
the so-called reports classifying the land over which the hotel complex is
coming up as CRZ-III are motivated and designedly made to assist the
D respondent in having the hotel complex and, therefore, this is a fit case where
this Court should prohibit the construction of hotel, annulling the permission
granted by the Municipal Council and annulling the environmental clearance
of the Ministry of Environment and Forest, Govt. of India or at least, this
Court should remit the matter for re- consideration to the Department of
E Ministry of Environment and Forest for consideration of some fresh data
which the Goa Foundation has found subsequent to the filing of the writ
petition before the High Court.

Mr. l.M. Chhagla, the learned senior counsel appearing for the
respondent, on the other hand contended that it has been held by this Court
F in several cases that in the matter of developmental activities and protection
of environment and ecology, the Court's approach should be to achieve an
appropriate balance between the development and the environment, so that
both can co-exist without affecting the other. The High Court in the impugned
judgment, has approached the problem from the aforesaid stand point. It took
G into account all the relevant materials which had been considered by the
Ministry of Environment and Forest before granting environmental clearance
and on the basis of such clearance, ultimately the Municipal Council sanctioned
the plan for putting up the hotel and no contrary materials could be produced
before the High Court to take any adverse view or to enable the High Court
to come to the conclusion that either the concerned authorities did not apply
H their mind to the relevant and germane materials or that the clearance and
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT.LTD. [PA TT ANf'\IK, J.] 513

sanction of the plan was obtained by any unfair means. According to Mr. A
Chhagla, it took long 22 months for the respondent to obtain the necessary

--
sanction of the plan and such delay in obtaining the sanction of the plan has
already caused enormous escalation of cost in bringing the hotel project. Mr.
Chhagla, also further submitted on instructions that the structural construction
of hotel has almost been completed and at this length of time it would be B

-
wholly inequitable and inappropriate to accept the contention of the appellant
to remit the matter to the Ministry of Environment and Forest for re-
consideration. Mr. Chhagla also placed before us the different reports of
different authorities at different point of time and, so far as the subsequent
report of the National Institute of Oceanography, obtained by the Goa
Foundation during the pendency of this appeal in this Court, Mr. Chhagla C
submits that two of the members were also Members of the Committee which
cleared the environmental clearance and as such no credence can be given
to such self-serving report. Dr. Claude Alvares, in his reply however, submitted

- that the Foundation has no self-serving interest in the matter except its effort
to protect the environment and ecology. He also submitted that two Members
who were party to the environmental clearance had themselves indicated that
they were mere signatories to the decision taken without any application of
D

mind, and, therefore the report of the National Institute of Oceanography
which was submitted in this Court should be given its due weight.

Mr. Mukul Rohtagi, the learned Additional Solicitor General, appearing E
for the State of Goa, submitted with vehemence that the State Government
and the concerned authorities, for granting license, have acted only after the
Govt. of India in the Ministry of Environment and Forest gave environmental
clearance to the proposal of setting up of a hotel. Mr. Rohtagi also contended
that in a State like Goa, where economy of the state, depends fully on tourism,
if hotels are not allowed to come up on the sea shore, then the development F
of the State will come to a grinding halt. At the same time, the learned counsel
submitted that the ecology and environment, must be protected and in the
case in hand, the Government has proceeded from the aforesaid stand point.
According to Mr. Rohtagi, several inspections having made to examine whether
permission can be granted at the proposed place for construction of hotel and G
on being fully satisfied that such permission, does not contravene any of the
prohibitions and restrictions, contained in the CRZ notification as well as
provisions contained in the Environment (Protection) Act, the State authorities
have accorded permission to the respondent for building up the hotel, and,
therefore, the High Court was fully justified in dismissing the writ petition
filed by the appellant and this Court should not interfere with the said order. H
514 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A The learned counsel, appearing for the Union of India, more or less,
reiterated the stand taken by the learned Additional Solicitor General, appearing
for the State of Goa.

Before we examine the materials on record to test the correctness of the
rival submissions, we think it appropriate to notice one or two decisions,
B indicating the approach of a Court in such matters concerning environment
and development. The Calcutta High Court in the case of People United for
Better living in Calcutta-Public and Anr. v. State of West Bengal and ors.,
AIR (l 993) Calcutta 215, had the occasion to deal with a similar problem in
relation to the wetland and the learned Single Judge (U.C. Banerjee, J, as he
C then was) came to the conclusion:

"There is no manner of doubt that the issue of environmental
degradation cannot but be termed to be a social problem and
considering the growing awareness and considering the impact of this
problem on the society in regard thereto Law Courts should also rise
upto the occasion to deal with the situation as it demands in the
D
present day context: Law Courts have a social duty since it is a part
of the society and as such, must always function having due regard
to the present day problems which the society faces. It is now a well-
settled principle of law that socio-economic condition of the country
cannot be ignored by a Court of law. It is now a well-settled principle
E of law that while dealing with the matter, the social problems shall
have to be dealt with in the way and in the manner it calls for, since
benefit to the society ought to be the prime consideration of the Law
Courts and ecological imbalance being a social problem ought to be
decided by a court of law so that the society may thrive and prosper
without any affection".
F
The learned Judge had indicated in the said judgment that there should be
a proper balance between the protection of environment and the development
process : The society shall have to prosper, but not at the cost of the
environment and in the similar vein, the environment shall have to be protected
G but not at the cost of the development of the society - there shall have to
be both development and proper environment and as such, a balance has to
be found out and administrative actions ought to proceed in accordance
therewith and not d'hors the same. In the case of Indian Council for Enviro-
Legal Action v. Union of India and Ors., [ 1996] 5 SCC, 281, this Court had
the occasion to deal with the question of protection of 6000 kms long coast
H line of India and the Court emphasised that it would be the duty and
GOA FOUNDATION, GOA v. DIKSHA HOLDINGS PVT. LTQ. [PA TT ANAIK, J.] 5 J5
responsibility of the coastal states and Union Territories in which the stretches A
exist, to see that the notifications issued under the provisions of Environment
(Protection) Rules as well as the notifications issued, declaring the coastal
stretches should be properly and duly implemented and the various restrictions
on the setting up and expansion of industries, operation or process etc. in
the Regulation Zone should be strictly enforced. The Court had indicated that
with a view to protect the ecological balance in the coastal areas, notifications B
having been issued by the Central Government, there ought not to be any
violation and the prohibited activities should not be allowed to come up
within the area declared as CRZ notification. The Court also emphasised that
no activities which would ultimately lead to unscientific and unsustainable
development and ecological destruction should at all be allowed and the C
Courts must scrupulously try to protect the ecology and environment and
should shoulder greater responsibility of which the Court can have closer
awareness and easy monitoring.

· Bearing in mind the observations made in the aforesaid cases, let us
now examine the case in hand to find out as to whether there exists any D
infraction of any rule, regulation or law by granting environmental clearance
in favour of the respondent to have the hotel complex and whether there
exists any authentic data or material before us for coming to a conclusion that
by allowing such hotel complex at the disputed plot would upset the
environment and ecological balance of the area and would really have the E
effect of damaging the pristine beach with sand dunes, if any.

Coming to the CRZ notification, it transpires that the Ministry of
Environment and Forest, issued the Notification on 19th of February, 1991 in
exercise of powers under Section 3(1) and section 3(2)(v) of the Environment
(Protection) Act, 1986 and rule 5(3)(d) of the Environment (Protection) Rules, F
I 986, declaring Coastal Stretches as Coastal Regulation Zone (CRZ) and
Regulating Activities in the CRZ. Be it be stated, the aforesaid notification
was issued after considering duly, all the objections received by the Central
Government. Paragraph 2 of the aforesaid notification declares certain activities
as prohibited activities within the CRZ. Clause (xiii) prohibits dressing or G
altering of sand dunes, hills, natural features including landscape changes for
beautification, recreational and other such purpose, except as permissible
under the Notification. Paragraph 3 of the Regulation, provides that all other
activities, except those prohibited in para 2 will be regulated, as indicated
under the said paragraph. Annexure I to the Notification classifies the Coastal
Regulation Zone into four categories, but Category IV relates to Coastal H
516 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A stretches in the Andaman & Nicobar, Lakshadweep and small islands and as
such all other coastal stretches in the country are classified into three categories
namely CRZ- I, CRZ-11, and CRZ-111. Paragraph 6 of the Notification provides
the norms for regulation of the activities and so far as CRZ I is concerned,
it categorically provides that no new construction shall be permitted withir.
B 500 meters of the High Tide Line and no construction activity, except as listed
under 2(xii), will be permitted between the Low Tide Line and the High Tide
Line. By the proviso, certain constructions have been permitted, like
construction of dispensaries, schools, public rain shelters, community toilets,
bridges, jetties, water supply, drainage and sewerage etc., but the proviso
applies to the State of West Bengal in Sunderban area. Under CRZ- III, an
C area upto 200 meters from High Tide Line is to be earmarked as No Development
Zone. But development of vacant plots between 200 meters and 500 meters
of High Tide Line in designated areas of CRZ III with the prior approval of
Ministry of Environment and Forest is permitted for construction of hotels/
beach resorts, subject to the conditions stipulated in the guidelines at
Annexure-11. Annexure-11 to the notification provides detailed guidelines for
D development of beach resorts and hotels in the areas of CRZ-111. According
the appellant, the plot of land on which the respondent has been granted
permission to construct the hotel is CRZ-1 and by allowing such construction
of hotel, necessarily, there will be dressing or altering of sand dunes, which
is a prohibited activity under paragraph 2 (xiii) of the Notification, whereas
E according to the Union Government, the State Government and the hotelier,
the plot of land falls under Category CRZ-111 and the same being beyond 200
meters from the High Tide Line, developmental activities for construction of
hotel is permissible with the prior approval of the Ministry of Environment
and Forest and as such there has been no infraction of the CRZ notification.
In fact the High Court in the impugned judgment has come to the finding that
F the land in question falls within the Category CRZ-111 of the Coastal Regulation
Zone Notification, issued by the Government of India and, therefore, one t-
i
question has to be answered whether the land has been appropriately
categoris~d as CRZ Ill, as contended by the respondent or it ought to have
been classified as CRZ I, as contended by the appellant.
G
Under the main notification issued by the Government of India, referred
to earlier, the Coastal States and Union Territory Administrations were required
to prepare within one year from the date of the notification, Coastal Zone
Management Plan (hereinafter referred to as "the Management Plan), identifying
and clarifying the Regulation Zone Areas within the respective territories, in
H accordance with the guidelines contained in the main Notification and those
GOA FOUNDATION, GOA'" DIKSHA HOLDINGS PVT. LTD. [PATTANAIK,J.] 517

plans were required to be approved with or without modifications by the A
Ministry of Environment and Forest, Govt. of India. The Notification of the
Union of India further stipulates that within the framework of the approved
Management Plan, all developments and activities within the Regulation Zone,
except the prohibited activities and those which require environmental clearance
from the Ministry of Environment and Forest, Govt. of India, were to be B
regulated by the State Government. The Goa State Coastal Zone Management
Plan stood approved by the Govt. of India Ministry of Environment and
Forest on 27th of September, 1996 with certain conditions mentioned in the
letter and this approval purports to have been accorded in exercise of powers
vested in the Central Government under Section 3(3)(i) of the CRZ Notification
of 1991. In the State of Goa, so far as Cancona Taluka is concerned, in which C
Taluka, the proposed hotel of the respondent situates, the whole of Cancona
Taluka is classified as CRZ I, except settlement area, which is classified as
CRZ III and in Nagorcem area, the entire area is classified as CRZ I, except
settlement area which is classified as CRZ Ill. According to the various
reports submitted by the State Government to the Govt. of India as well as
reports obtained by the Union of India through its own scientists, in the area, D
where the permission has been accorded for construction of hotel, lot of
settlement and built up structures are available like temples, schools etc. and
that the plot of land is located beyond 200 meters of the High Tide Line. On
going through the aforesaid CRZ Notification issued by the Government of
India as well as the approved Coastal Zone Management Plan of State of Goa, E
we are not in a position to persuade ourselves to agree with the submission
of Dr. Claude Alvares, appearing in person for the appellant that there has
been an infraction of any provisions, and by allowing construction of hotel
on the land, the authorities have allowed certain prohibited activities.

Coming to the materials on record, we find in the High Court itself, the F
Ministry of Environment and Forest, Govt. of India had filed the affidavit,
indicating therein that as per the information submitted by the Govt. of Goa,
the area of the proposed construction is designated as settlement area and
the same has been categorised as CRZ-III in the approved Coastal Zone
Management Plan of Goa. It was also averred in the said affidavit that the G
proposal for construction of hotel was thoroughly examined by the Ministry,
including a visit to the site where the construction of hotel is proposed and
the sand dunes and only after satisfying that the construction of the project
was not on the sand dunes, the approval for the project was given by the
Union Ministry of Environment and Forest. The respondent No. I, the hotelier
in his counter affidavit before the High Court had categorically stated: H
518 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A "The changes inter alia pertain to the said property bearing
Survey Nos. 2811, 29/1, 33/1 to 33/2 of the Village Nagorcem/Palolem
notified in the Official Gazette annexed as Exhibit R- l. Hereto annexed
and marked as Exhibit R-2 is a copy of the said Notification dated
5.4.1990. As the said property was earmarked as a settltment/beach
resort area, the Respondent No. I negotiated its acquisition and
B purchased it from the concerned owners thereof in the year 1994. In
portions of the said property there are various houses of occupants,
namely in survey No. 28/1 numbering 19 occupied by various families.
There is a school within a part of property bearing survey No. 28/1.
There is also a house of the owners and a temple which was constructed
c by the owners of the said property, namely the kunde family for the
local residents within the property bearing Survey No. 2811 and right
at the back of the said property within survey no. 30/41 there existed
a canning factory belonging to the owners, which now belong to the
1st Respondent and is the project office of the 1st Respondent".

D This assertion of fact was not controverted by the appellant before us, who
was the petitioner in the High Court, though a rejoinder was filed in the High
Court. The Govt. of Goa, Department of Urban Development, Town and
Country Planning Department, had issued a notification under Section 17 of
the Goa, Daman and Diu Town and Country Planning Act, 1974, way back in
E the year 1986 and in the said Notification, so far as Nagorcem/Palolem and
in relation to Survey No. 28, 29, 33/1, the proposed user has been indicated
to be settlement (beach/resort). The disputed plot of land in the case in hand
falls within the aforesaid area and, therefore, it is crystal clear that the area
in question was proposed to be used for settlement (beach/resort). Dr. N.P.S.
Yarde, on receipt of the letter from the Ministry of Environment and Forest
F vis-a-vis the representation made by the Goa Foundation on the subject of
environmental clearance to the Goa Resort Hotel at Nagorcem, examined the
matter in consultation with the Town and Country Planning Department and
had categorically indicated that the area falls within CRZ Ill Category as per
the CZMP approval dated 27th September, 1996 issued by the Ministry of
G Environment and Forest, New Delhi. In the said report, he had indicated the
existance of sand dunes and the number thereof and had also further stated
that the construction of resort complex will not disturb the dunes in any
manner and the dunes will remain undisturbed. He had also stated that unless
a realistic criteria is adopted for mapping out prominent and ecologically
sensitive dunes as CRZ I areas, then a vast percentage of Goa's coastline
H within 200 to 500 meters of High Tide Line will be out of bound for any
GOA FOUNDATION, GOA v. DI KS HA HOLDINGS PVT.LTD. [PA TT ANAIK, J.] 519
development. The Chief Town Planner also after inspection of the site had A
submitted a report on 21st of February, 1997, indicating therein that the
contour plan given by the hotelier does not tally with the existing sand dunes.
Mr. R.N. Ray of the Town Planning Department, Goa, also had intimated to
the Secretary , Department of Environment and Forest, Govt. of India that the
proposed building of the hotelier do not affect the sand dunes and even the B
sand accumulations were protected by modifying. the layout of the cottages
in the section. It may be borne in mind that the appellant- Goa Foundation,
had filed its objections before the environmental authorities, requesting, not
to grant environmental clearance and it is because of such objections, the
department of Environment and Forest had taken adequate care in obtaining
reports from different sources including their own source and then, ultimately C
came to the conclusion that there possibly cannot be any objection to allow
the hotel project to come up at the place particularly, when there exist several
earlier settlements and structures over the area. On these mass of materials
and those materials having been obtained after the appellant objected to grant
of environmental clearance to the hotel project, when the Central Government
granted the environmental clearance, we see no infirmity with the said grant D
of clearance nor are we in a position to hold that the ~onclusion of the
competent authority are based on non-consideration of any relevant and
germane materials. On the other hand, the Central Government has taken due
care in obtaining reports from the authorities of the Goa Government as well
as deputed its own scientists to have a spot inspection and report about the E
feasibility of the hotel project being cleared up. Under the aforesaid
circumstances, we are of the considered opinion that the disputed plot situate
in Category CRZ Ill and was available for development by way of construction
of hotel/beach resort in the development plan of Goa, which was duly approved
by the Central Government and the activities in question cannot be held to
be prohibited activity under the initial notification of the Govt. of India. F
The appellant Dr. Claude Alvares, however placed before us the report
of the National Institute of Oceanography, which was obtained during the
pendency of this appeal in this Court and contended that in view of the
aforesaid authentic document, it would be meet and proper for this Court to G
remit the matter to the Union Government for re-consideration. While the
matter was pending in this Court, the Goa Foundation wrote a letter to the
Director of National Institute of Oceanography, asking some clarification and
comments in relation to the pending appeal of the Goa Foundation in this
Court and it is in that context the National Institute of Oceanography has
given the report on which so much of emphasis has been given by the H
520 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A appellant. Two of the scientists, belonging to the National Institute of .
Oceanography who were the authors of the report namely Dr. Antonio _.
Mascarenhas and Dr. Kalidas Sawkar were Members of the Goa State Committee
for Coastal Environment and they were signatories to the approved plan in
the meeting held on 15th of March, 1996 and they never objected to the
B aforesaid approved plan, though now, they indicate that permission granted
for the hotel would have the effect of demolishing the sand dunes. That apart,
though the writ petition is in the nature of Public Interest Litigation at the
instance of the Goa Foundation, but the said Goa Foundation had vehemently
objected before the Department of Environment and Forest, which cleared the
hotel project in question and, therefore, it must be assumed that all necessary
C materials in their possession had been produced before the Government of
India. The present report of National Institute of Oceanography, if read with
the Jetter of the· Goa Foundation dated 20th of April, 1999, unequivocally
indicates that the Goa Foundation had obtained this report just to nullify the
environmental clearance, granted by the Department of Environment and
Forest. On the basis of such reports, we are unable to accept the alternative
D prayer of Dr. Claude Alvares, that the matter should be remitted back to the
Department of Environment and Forest for re- consideration of their approval
granted earlier. In our considered opinion, this subsequent report obtained by
the appellant cannot be considered for coming to a conclusion that the
conclusion of the environmental authorities and the consequential clearance
E of the project is either based on non- consideration of the relevant materials
or ignoring any vital material, requiring re-consideration, more so, when the
structural construction of the hotel project is nearing completion. In our
considered opinion, the appellant has utterly failed to establish by referring
to any authentic material that there has been an infraction of any provisions
of the CRZ Notification or the approved Management Plan of Goa nor is there
F any illegality in the order of the Government of India, granting environmental
clearance as well as the order of the State Authorities in sanctioning the
project on the basis of such environmental clearance.

This appeal, accordingly fails and is dismissed, but in the circumstances
G there will be no order as to costs.

BANERJEE, J. I have had the privilege of going through the lucid
judgment of my learned Brother Pattanaik, J. and while recording my concurrence
therewith, however, I wish to add a few pages as my own reasonings.

H Environmental degradation said to by reason of disturbance of existing
GOA FOUNDATION, GOA 1'. DIKSHA HOLDINGS PVT.LTD. [BANERJEE, J! 521
sand dunes on the sea front of Goa is the focal point for consideration in this A
Appeal - the High Court answered it in the negative.

Goa, a popular tourist resort has recently been facing a tremendous
influx of people as any other urban area. Tourism has turned out to be the ·
basic economic benefactor to the State and correspondingly attracts the
multifarious attributes of the same. Tourism is an industry and this growth of B
tourism has attracted all the other ancillary agencies including Hoteliers to
start commercial operations and business activities. Panaji being the capital
city has, as a matter of fact, hundreds of such hotels - big and small and it
is in pursuit of this trade and commercial venture that thenceforth uninhabited
Beaches of the State being converted into commercial arena by way of hotels C
and beach-resorts - of course to the benefit of the State exchequer but
obviously commencement ofa business activity on a Virgin Beach could lead
to environmental degradation and resultantly various non- governmental
organisations have come up to protest against such exploitation of the nature's
bounty. The present Petition before this Court is one such instance. To put
the record straight however, be it noted that though originally the writ petition D
was moved before the Goa Bench of the Bombay High Court but subsequently
matter was transferred to Bombay and was heard by the Division Bench
which negated the plea of environmental degradation as noticed above and
hence the Appeal.
E
In the present Public Interest Litigation, the main thrust of challenge
pertains to maintenance of environmental equilibrium and bio-diversity in
Nagorcem Beach, Palolem, Taluka - Cancona, Goa being a coastal area in the
State of Goa. The factual backdrop depicts that M/s. Diksha Holdings Pvt.
Ltd., (the Respondent No. I herein) applied to Town & Country Planning
Department for permission to the construction of a Beach resort in January, F
1996 along with a contour and site plan of the area. The records depict that
Cancona Municipal Council upon due consideration of the clearance report
from the Ministry of Environment and Forests granted sanction for construction
of Hotel on 16th January, 1998 which however, prompted the foundation (the
Appellant herein) to approach the Court inter alia contending that the Ministry G
of Environment and Forests, did not, as a matter of fact, consider all relevant
material particulars before issuance of the clearance and consequently the
grant of sanction also stands vitiated. On the second count the Appellant
contended that in any event the area being in the Coastal Regulation Zone
(CRZ) and the construction of the Hotel does not come within the ambit of
permissible activities in terms of the Notification under Section 3(1) and H
522 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A 3(2)(v) of the Environment Protection Act, I 986, there appears to be a serious
irregularity resulting in the grant of an illegal sanction for setting up the
project, more so by reason of the existence of sand dunes and categorisation
of the area as CRZ-1, which prohibits any construction within 500 metres of
the High Tide Line.

B While it is true that nature will not tolerate after a certain degree of its
destruction and it will have its toll definitely though may not be felt in
presenti and the present day society has a responsibility towards the posterity
so as to allow normal breathing and living in cleaner environment but that
does not by itself mean and imply stoppage of all projects. In my Judgment
C in regard to East Calcutta Wetlands (People United for Better Living in
Calcutta - Public and Anr. v. State of West Bengal, AIR (I 993) Calcutta 2 I5)
I did speak of a balance between development and ecology and since my
learned Brother Pattanaik, J. has already dealt with the issue, I refrain myself
from dealing with the matter in extenso in that regard excepting however,
recording my concurrence therewith and state that harmonization of the two
D namely, the issue of ecology and developmental project cannot but be termed
to be the order of the day and the need of the hour.
Before proceeding with the matter further, it be noted that the schedule
attached to the local Town & Country Planning Act depict that the area in
question was designated in the original plan as an orchard and as early as
E in I 989 the Settlement recorded a proposal to convert the plot from orchard
to Settlement (Beach Resort). This proposal was finally accepted and approved
in early April, 1990 and accordingly the record of Rights recorded the conversion
from orchard to settlement as its land-use.
India, admittedly, has around 6000 kms long coastal line against which
F Goa having I I 0 kms consisting largely of long sandy beaches. The beauty
coupled with infrastructural facility has made Goa renowned the world over. !

Tourism as noted above is the main contributing factor for Goa;s economy.
We have on record in the matter in issue the Notifications issued by
the Central Government in regard to regulation of Coastal Zones in the
G country popularly known as CRZ Notifications which has, in fact, regulate the
user of the beach area of the country. A brief reference to the norms for
regulation of activities in different categories of CRZs would be convenient
at this stage:
"CRZ-1:
H No new construction shall be permitted within 500 metres of the High
GOA FOUNDATION, GOA 11. DI KS HA HOLDINGS PVT.LTD. [BANERJEE, J.] 523
Tide Line. No construction activity, except as listed under 2(xii), will A
be permitted between the Low Tide Line and the High Tide Line;

[provided that construction of dispensaries, schools, public rain
shelters, community toilets, bridges, roads, jetties, water supply,
drainage, sewerage which are required for traditional inhabitants of
the Sunderbans Bio-sphere reserve area, West Bengal, may be B
permitted, on a case to case basis, by an authority designated by the
State Government].

CRZ-11:

(i) ····················································
c
(ii)····················································

(iii)····················································

CRZ-111: D
(i) The area upto 200 metres from the HTL is to be earmarked as 'No
Development Zone'. [No construction shall be permitted within
this zone except for repairs of existing authorised structures not
exceeding existing FSI, existing plinth area and existing density, E
and for permissible activities under the notification including
facilities essential for such activities. An authority designated by
the State Government/Union Territory Administration may permit
construction of facilities for water supply, drainage and sewerage
for requirements of local inhabitants]. However, the following
uses may be permissible in this zone - agriculture, horticulture, F
gardens, pastures, parks, play fields, forestry and salt manufacture
from sea water.

(ii) Development of vacant plots between 200 and 50-0 metres of
High Tide Line in designated areas of CRZ-Ill with prior approval
of Environment and Forests (MEF) permitted for construction of G
hotels/visitors subject to the conditions as st:·pulated in the
guidelines at Annexure-11.

(iii)

(iv) " H
524 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A In support of the appeal, Dr. Calude Alvares, a well-known
Environmentalist of the country and appearing-in-person contended that by
reason of the restrictions in terms of the CRZ Notification for setting up or

B
expansion of industries and which lies about 500 meters from the High Tide
Line, question of construction of any building (whether a hotel or beach
resort or even any other building) cannot be considered and the act or acts
-
of the concerned authority in the matter of approval to the proposed
construction is the resultant effect of total non-application of mind. CRZ
Category-I does not permit any new construction except, however, as mentioned
in the Notification itself. It is in this perspective that Dr. Alvares however
contended that the matter ought to be remitted back to the concerned authority
C for reconsideration of the same and upon examination of proper materials in
the matter in issue.

An in-depth analysis of the submission of Dr. Alvares would indicate
that according to him demolition of sand dunes may create an environmental
degradation and reliance was placed on the Report of the National Institute
D of Oceanography.

Before, however, dealing with the Report, a cursory glance on to the
nature of sand and sand dunes and impact thereof may be noticed. "Sand"
in common English parlance cannot but mean and include 'minute fragments
E resulting from wearing down of siliceous rocks found covering parts of the
sea-shore, river-beds, deserts' (vide Concise Oxford Dictionary). Sand is a
product of abrasion or break down of older parent or source rocks. Mcgraw-
Hill Encyclopedia of Science and Technology (6th Edn.) describes the
characteristics of sand as below:

F "Sand can be described in terms of both texture and composition.
Textual attributes include size, size sorting, angularity, shape and
surface texture of the grains. Grain size refers to the mean diameter of
the grains and is usually determined by sieving. Grain size is directly
related to the energy of velocity of the agent which transports the
grains and is inversely related to the total distance of transport prior
G to deposition. Size sorting is a measure of the range in grain sizes
within a given deposit of sand. Poorly sorted sands contain grains of
many different sizes within the sand-size range; well-sorted sand have
only a narrow range of particle diameters. The best-sorted sands are
those transported by agents of low viscosity (for examine, wind) and
H deposited very slowly.
GOA FOUNDATION, GOA''· DIKSHA HOLDINGS PVT. LTD,[BANERJEE. J.] 525 .
........................................................................................................................... A
Sand is found virtually anywhere where fluids with high kinetic energy
transport and deposit sediment. The largest modern-day accumulations
of sand are in the vast inland deserts and on beaches. In both
environments much of the sand has been reorganized by wind into
dunes. Other significant concentrations of sand are found in alluvial B
fans which form at the base of mountains, on bars in rivers, and in
a variety of shoreline settings including spits, barrier islands, and tidal
flats, and in parts of deltas. Until about the 1950s sand was not
thought to be present in the oceans very far beyond the inner parts
of the continental shelves. However, it has been shown that sand can C
be transported even beyond the shelves into very deep-water settings
by density currents which commonly move down submarine canyons".

Mcgraw-Hill Encyclopedia of Science and Technology further notes its
use in the manner below:
D
"Sand is an important economic resource. Silica (Si0 2) from quartz
sand is the chief ingredient for glass. Sand is also employed as a filler
in concrete and plaster, as an abrasive (for example, on sandpaper),
and as a fertilizer (glauconite sand)."

Needless to record that sand is normally transported away from its site E
of origin by wind and water before it being deposited at a particular place.

The New Encyclopaedia Britannica (Volume 10) has this to note for sand
dune:

"Sand dune, hill, mound, or ridge of loose material (not always sand)
formed by wind action. The existence of dunes is a direct function of F
the ability of wind to transport unconsolidated material. They are
commonly associated with desert regions where windblown sand
occupies extensive areas. It has been estimated, for example, that sand
deposits in the Sahara Desert cover about 2,700,000 sq mi (7,000,000
sq km). In the recent geological past desert areas may have been even G
larger during dry periods in the Pleistocene glaciation. At that time
great areas of loess (wind-blown silt) were deposited across North
America, Europe, and Asia. Dunes are also associated with coasts
where beach sands may be reworked by the wind."

The geomorphic characteristics of sand dunes can be best appreciated H
526 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A upon assessment of two basic elements, namely, sand and the wind and it is
an interaction of these two elements which bring about the sand dunes. It is
interesting to note that sand dunes are invariably built by particles of various
forms and shapes of sand, sized up by waves and carried by the wind. Clay
particles usually do not come along with sand particles. The growth of sand,
B however is totally dependent upon the direction and velocity of the wind. By
reason wherefor sand dune which cannot be attributed to be ancient has been
noticed to have another redeeming feature of being a movable along with
time, tide and the wind.

In the Coastal Zone Management Plan for Goa as issued by the Goa
-
C State Committee on Coastal Environment (Town & Country Planning
Department: Government of Goa), Government of Goa - June 1996, Dr. Wilfred
Menezes Mesquita, the Environment Minister in no uncertain terms stated
that Goa being on the verge of a quantum jump in all round development and
thus having a tremendous pressure on its natural resources as also
environment. The Minister however, went on to state that though Goa shall
D have to achieve economic prosperity but at the same time the Government
cannot afford to damage the ecology and it will be the endeavour of the
Government to achieve both by maintaining a proper balance.

This is exactly how Brother Pattanaik, J. in his judgment dealt with the
issue as regards the balance between development and ecology and as such
E further dilation is not required in the matter excepting however to note that
the Government of Goa was not, in fact, completely oblivious of the environment
of the area. The Minister of Environment himself makes a note that a proper
balance shall have to be maintained between the ecology and development.

Sand dunes, admittedly, if otherwise ancient in nature as noticed above,
F
sometimes have coconut tree grown on the dunes by reason wherefor the
dunes, as a matter of fact, act as a 'second line of defence against the fury
of any cyclonic onslaught' and before delving into the merits of the matter,
another significant feature which ought to be noticed at this juncture is that
the width of the beaches in Goa is not the same all along the coastal line and
G rt'.sultantly Coastal Management Plan cannot also be uniform neither can it
be put on a formula -each beach is singularly singular anci has to be developed
or protected in a specific manner applicable to the concerned beach only.

ISSUES RAISED IN THE MA TIER:

H The criticism levelled against the judgment under Appeal as noticed
GOA FOUNDATION, GOA, .. DIKSHA HOLDINGS PVT. LTD. [BANERJEE, J.] 527
above, is the factum of non-consideration of relevant materials produced A
during the course of hearing as also the documents enclosed with pleadings

-
of the parties. Strong reliance has been placed on the Report of the National
Institute of Oceanography which admittedly focussed the irreparable loss of
environmental climate in the event of sanction for the proposed construction.
It is at this juncture however would be significant to note two several factors B
detailed herein concerning the above Report: firstly, the Report has been
obtained during the pendency of the Appeal before this Court and secondly
Report has been signed by four several experts of the Institute of which two
were the members of the Coastal Zone Management Committee of the
Government of Goa which has granted the sanction of the proposed
construction upon due certification with respective signatures. c
On a further factual reference at this juncture it appears that the
application for grant of sanction for the proposed construction was scrutinised
.by statutory agencies including the State Environment Department as also the
Ministry of Environment and Natural Resources of the Government of India.
It is worth adverting that the Government of India, as a matter of fact, D
examined the issue upon obtaining a special Report of two very eminent
scientists of the country. The Report, be it noted, as obtained by the Government
of India has been on actual specific verification of the site in question and
it is on the clearance from the Central Government that the State Government
in its bid to have a balance for development and ecology also considered the E
issue and upon due deliberation thereof granted the sanction.

The two scientists of the National Institute of Oceanography were
members of the Committee which investigated the ecological aspect of the
issue and on being satisfied and there being no affectation of the environment,
the Committee recommended the same upon recording of signature as a mark F
of approval of all members including the two who later give a report otherwise.
I do not wish to make any further comment thereon as regards the subsequent
report excepting however, recording that it is rather unfortunate that such a
state of affairs did take place and the happenings have involved two very
noted scientists of Western India as also of the country. The other aspect G
which needs to be gone into is the factum of affectation of sand dunes and
its environmental impact. Admittedly, the dunes provide a beauty to the area
in question and nature's bounty stands very well exposed in the dunes but
sand, it is to be noted is also used for commercial purposes, but the factum
of the same being capable of a commercial item, has not been delved into
either of the parties in the course of the submissions. Admittedly, dune sand H
528 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A is also used by the foundry industry though, of course, Ford Motor Co. have
now started using non-dune sand for foundry operations for automobile
engine castings: non availability of any evidence of alteration or physical,

B
biological and geological characteristics of sand dunes ought also to be
noticed and taken Into consideration. The factum of affectation of micro
climate downwind of the sand dune area and the resultant effect therefor has
-
also not been highlighted so as to warrant any adverse finding pertaining to
the project. There is not even existing an iota of evidence as regards the
resultant damage on the -vegetation top soil or topographic features neither
any evidence pertaining to the elimination of existing flora and fauna of the
area in question, no details are available as regards the plants species which
C would otherwise be threatened in the event of there being such a project.

We unfortunately also do not have any local environment audit report
excepting however the Report of the National Institute of Oceanography and
we reserve our doubts as to the credence to be attributed to the report and
as detailed hereinbefore in this judgment. The affectaiion admittedly cannot
D possibly be a mere fanciful idea but there ought to be cogent materials in
support therefor. Unfortunately, we do not have such cogent evidence or any
evidence available in the matter so as to come to a conclusion about the
disturbed environmental equilibrium by reason of the change of bio-diversity
in the area in question rather the records suggest otherwise.
E
Another factual element ought also to be noticed since the same is
r;_ther significant to wit: An assurance or undertaking not to disturb the
existing sand dunes. Mr. Chhagla appearing for the Respondents upon
instructions has candidly submitted that as a matter of fact, there has been
a change in the plan and the new revised plan contain maintenance of the
F sand dunes since on an appraisal of the entire situation, the Respondent feel ,•
that the dunes would otherwise enhance the beauty of the hotel or the beach
resort. Protection of the environment is required undoubtedly provided however
the same is required and it is in this perspective Mr. Chhagla contended that
the entire edifice of the appellant's contention is based on assumptions de
G hors the realities. As a matter of fact, a faint suggestion of motive has also
been introduced, we do not however, subscribe to such a view since the
intent of this particular public interest litigation is the preservation and
maintenance of environment in a beach area within the Goa Coastal Zone.
Coastal Zone shall have to be protected undoubtedly but development of the
area cannot be decried also in any way provided however, there is no
H environmental degradation and it is on this score Mr. Chhagla contended that,
GOA FOUNDATION, GOA i·. DJ KS HA HOLDINGS PVT.LTD. [BANERJEE, J.] 529
in fact, on the locale there were temples: educational institutions and settlements A
as well -thus, it is not that the beach was totally uninhabited and there was
available an unspoiled beach. The record of Rights as noticed above has
recorded the area in question to be a beach resort and admittedly also
settlement, in fact, is existing in the area in question, even today. It is not that
a hitherto unspoiled coastal zone is being spoiled, it is even presently being B
occupied by human settlements.

Another severe criticism which had come from Dr. Alvares pertains to
the issue of CRZ-I area. In the earlier part of the judgment I had, in fact, dealt
with the categorisation of the Coastal Zone and CRZ-1, which cannot but be C
ascribed to be a totally prohibited zone for any construction and there also
cannot be any dispute in regard thereto. In the event the area is ascribed to
be CRZ-1 area, question .of any grant of sanction would not arise and the

-
earlier pronouncement of this Court of which reference has been made by my
learned Brother Pattanaik, J. has settled the same finally and I record my
respectful concurrence therewith. The High Court also while dealing with the D
issue has dealt with the same and came to a conclusion however, the area is
in CRZ-Ill and not CRZ-1: Needless to record here that Government's sanction
and Ministry of Environment's clearance (both Central and State Governments)
have proceeded on the basis thereof and we do not find any contra evidence
so as to depict its coastal-zone characteristics other than CRZ-III. A
recapitulation on the score' of Coastal Management would prompt us to E
record that since each beach is different in its contour, there is no fixed
formula for its management either. Coastal zone of Goa attracts tourists by
reason of availability of nature's bounty but infrastructural facility is also
required to develop this recently growing tourism industry provided, of course,
there is no permanent affectation of environment in the area in question. The F
records depict that the issue of affectation of environment, be it permanent
or even temporary does not and cannot arise in the contextual facts.
Environment is beauty, environment is our sustenance, as such in the event,
the same perishes, humanity also would perish may not be today or tomorrow
but certainly a day or two later. The issue, therefore, in the Appeal is whether
there is a degradation of environment in the event of construction, the G
records speak volumes in the negative: Environmentalists opine in the negative
- would the court be justified in thwarting the project in the contextual facts
- the answer cannot possibly be in the affirmative.

On the wake of the aforesaid, I record my concurrence with the H ,
530 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A conclusion of my learned Brother Pattanaik, J. that the judgment under Appeal
cannot be faulted in any way and as such I would also dismiss the Appeal
without, however, any order as to costs.

T.N.A., Appeal dismissed.

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