Caption: EVICTED: The National Green Tribunal has ordered the eviction of the Caravela hotel-cum-casino from the Mandovi river for violation of the Coastal Regulation Zone rules
Intro: The National Green Tribunal has ruled that the Caravela floating restaurant-cum-casino of the Deltin Group, owned by Jaydev Modi, should vacate the Mandovi river as it has no secured permission under the CRZ rules.
This order will deal with Appeal No. 92/2017(WZ) and R.A 37/2016(WZ) in O.A No. 92/2016(WZ) as both the matters involve common question of permissibility of activities of the Project Proponent (PP) – Deltin Carevela, M/s Highstreet Cruises and Entertainment Pvt. Ltd. (M.V .Royale Flotel), Goa, operating in CRZ-IV area, without requisite
CRZ clearance in terms of CRZ Notification, 2011 para 4 (i) (a). Both the matters were directed to be heard together by earlier orders of the Tribunal.
2. In Appeal No. 92/2017(WZ), challenge is to the order dated 28.07.2017 passed by the Goa Coastal Zone Management Authority (GCZMA) by which complaint of the appellant was dismissed. The impugned order shows that the complaint inter-alia pointed out that the vessel was operating in CRZ-IV hampering fishing activity without requisite CRZ clearance. Relevant extract from the said order is as follows:-
“………. He further stated that even though the vessel has been shifted the same falls under CRZ- IV zone which is within 12 nautical miles (i.e. buffer zone) in the river and due to which fishing activities are hampered as there will be harm caused for breeding of the fishes in the said area. He stated that getting a ship having 10 floors and just placing it in the River and conducting commercial activities within it is not correct and there should be some regulations imposed on such activities. ……He also stated that may be, such activities of plying of vessels in River is a permissible activity, however, there is no permission / NOC obtained by the said company from the GCZMA under Environment Protection (EP) Act.
3. However, the impugned order does not deal with the above issue which is one of the ground for appeal to challenge the impugned order.
4. In the Review Application, review sought is of order dated 29.11.2016 passed by this Tribunal in O.A No. 92/2016, dismissing the application raising one of the said issues, without considering the same.
5. The Appeal came up for hearing on 16.10.2017 when the Tribunal issued notice after hearing the parties. The Appeal was thereafter admitted.
6. Notice was issued in the Review Application on 16.01.2017 and by later order the Review was directed to be heard with the Appeal.
7. We may now refer to the stand of the PP and the authorities.
Replies filed in Appeal by the PP has disputed the violation of CRZ Notification as follows:-
“4. I say that the vessel is presently moored/stationed at the location sanctioned by the Captain of Port, Panaji, Goa, and is operating in compliance with all requisite permissions and applicable law. Further, I say that Respondent No.3 is not and never has been in violation of any provision of the Coastal Regulation Zone Notification dated January 6, 2011 (“CRZ Notification”), as alleged or otherwise. I say that Respondent No. 3 has not conducted any prohibited activity within the CRZ area, and is in fact, compliant with the requirements of sewage and effluent disposal and/or treatment, as is required in a CRZ-IV area, assuming whilst denying that the Vessel of Respondent No. 3 is in a CRZ — IV area.
5. I say that Respondent No. 3 is the owner of the Vessel and operates within river Mandovi with all the necessary permits and consents required under law. Respondent No. 3 has extensively referred to these permits and consents in its reply dated July 26, 2016 filed in Application No. 92 of 2016 (“Main Reply”), which are reproduced below :
a. Certificate of Registration dated May 6, 2014 and Certificate of Survey dated April 18, 2016 (valid upto April 27, 2017) issued by the Office of the Director of Ports and Inland Water Transport, (Departments of Ports & Inland Water Transport) Government of Karnataka, at Karwar.
b. No Objection Certificate dated June 2, 2016 granted by Respondent No. 3, the Captain of Ports, Government of Goa who exercises jurisdiction over the inland waters of state of Goa.
c. Permission letter dated June 15, 2016 to moor the Vessel in the waters of river Mandovi by Respondent No. 3, with the geographical position being Latitude 15°30’25” North and Longitude 73°51’20” East subject to the terms and conditions specified in the letter.
d. Consent to Operate from the Goa State Pollution Control Board (“GSPCB”) under the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Hazardous Wastes (Management Handling and Transboundary Movement) Rules, 2008, which is valid upto June 1, 2018.
6. I say that the Captain of Ports vide letter dated August 4, 2016 (No. CP/IISO/254/2638) granted permission to Respondent No. 3 for mooring of the Vessel. I say that the Vessel is presently parked/ anchored/ moored at 15° 30’ 9.20” North and 073° 49’ 10.60” East in compliance with the said permission from Captain of Ports. The permission letter dated August 4, 2016 from Captain of Ports is annexed hereto and marked as Exhibit – “[A]”.
7. The facts and submissions made in (i) Main Reply; (ii) the written submissions tendered by Respondent No. 1 in the Appeal No. 92 of 2016 before this Hon’ble Tribunal (iii) Respondent No. 3’s reply dated August 22, 2016 to the show cause notice issued by Respondent No. 1 (“SCN Reply”) and (iv) the written submissions submitted to Respondent No. 1 by Respondent No. 3 should be treated as being bodily incorporated herein and should be treated to form a part and parcel of the present reply and the same is not being physically reproduced only for the sake of brevity. A copy of the written submissions tendered by Respondent No. 1 in the Appeal No.
92 of 2016 and Respondent No. 3’s written submissions submitted to Respondent No. 1 are annexed hereto and marked as Exhibit “[B]” and Exhibit “[C]” respectively.”
“21. With reference to paragraph 28 of the Appeal, I say that the vessel is already ‘offshore’ at its current location (as authorized by the Captain of Ports) and is not required to be placed outside 12 nautical miles outside CRZ IV area, as alleged or otherwise. It is denied that Respondent No. 3 had to apply to Respondent No. 2 for any permissions, as alleged or otherwise, or that Respondent No. 3 should stop its operations in any manner.”
8. In the written submission, the stand of the PP on this aspect is as follows:-
“8. Respondent No. 1’s vessel is moored in a CRZ – IV classified area, being the water area from the Low Tide Line to twelve nautical miles on the seaward side. It has not conducted any prohibited activity within the CRZ area, and is in fact, compliant with the requirements of sewage and effluent disposal and/or treatment, as required in a CRZ-IV area, and described in more detail at paragraph 9 of the preliminary reply filed by this Respondent.”
9. We have heard the applicant in person and learned counsel for the PP and GCZMA. The applicant has pressed the limited issue of applicability of requirement of CRZ clearance for the activity in question which is otherwise permissible terms of CRZ Notification, 2011. We have considered the rival submissions on the same.
10. As stated in its preamble, the CRZ notification is intended to preserve coastal environment and permit sustainable activity in the face of threat of climate change. In S. Jagannath v. Union of India, (1997) 2 SCC 87, it was observed: “The purpose of CRZ Notification is to protect the ecologically fragile coastal areas and to safeguard the aesthetic qualities and uses of the sea coast.”
11. Para 4 of the Notification deals with permissible activities in CRZ area and mentions that for such permissible activity CRZ clearance is necessary if it requires water front and foreshore facilities. Relevant part of Para 4 is extracted below:-
“4. Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,-
(i) (a) clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities;”
12. Explanation to para 03 (i) (a) defines foreshore facilities as follows:-
“Explanation: The expression “foreshore facilities” means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.;”
13. From the above it is seen that if any permissible activity in CRZ area requires water front or foreshore facilities, CRZ clearance is required. Foreshore activities are activities requiring waterfront for their operations including, navigational safety facility and port for embarking and disembarking. The activities of the PP involve running of a mobile ten storey hotel on a ship with facilities of restaurants, entertainment, etc. In the process, foreshore facility such as navigational facility and mooring/berthing of the ship are covered by the foreshore facilities. Thus, para 4 is clearly applicable and CRZ clearance is required. The permissions relied upon by the PP do not include CRZ clearance. If it exists the same may be produced before the CZMA forthwith as without the same the activity of the PP is not permissible. Thus, the appeal and review application have to be allowed to that extent. Order of this Tribunal dated 29.11.2016 in OA 92/2016 has to be reviewed and modified as also order of GCZMA dated 28.7.2017 has to be modified to that extent. We order accordingly.
14. Accordingly, we restrain the PP from conducting its operations unless it has CRZ clearance and if it does not have, till such clearance is granted. We also direct State PCB to assess and recover compensation for damage to the environment on account of operations of the PP without requisite CRZ clearance, following due process of law. The recovered amount may be utilized for restoration of the environment by preparing an action plan. If the operations are to be resumed, the PP will be required to take consents under the Water and Air Acts from the State PCB. While granting such consents, the State PCB may incorporate appropriate regulatory conditions with regard to treatment of solid and liquid waste generated in the course of operations of the PP and also air emissions and other eco-environmental aspects.
The Appeal and RA will stand disposed of.
A copy of this order be forwarded to GCZMA and State PCB by email for compliance.
Adarsh Kumar Goel, CP. Sudhir Agarwal, JM, Dinesh Kumar Singh, JM, Prof. A. Senthil Vel, EM and Dr. Vijay Kulkarni, EM