PANAJI
The Bombay High Court at Goa has quashed and set aside the notification issued by the Ministry of Environment and Forests and Climate Change, which had granted permission to set up structures right up to within ten metres from the high tide line for the purposes of Blue Flag Certification of the Miramar beach.
The bench of Justices Sunil P Deshmukh and M S Sonak said that the Ministry failed to justify its decision to dispense with a mandatory public notice calling for objections and suggestions and that simply saying it was done in ‘public interest’ wasn’t enough to dispense with prior public notice which is practically mandatory especially when it came to environmental law.
The notification allowed structures to be set up right up to the water line that is as close as ten metres from the high tide line and dispensed with the requirement for CRZ clearance before setting up the structures.
“In the present case, the Central Government by dispensing with the public notice under clause (a) of sub-rule (3) of Rule 5 of the said rules has deprived the stakeholders of valuable opportunity of filing their objections against the imposition of prohibition or restrictions on carrying on of processes or operations,” the High Court bench of Justices Sunil P Deshmukh and M S Sonak, said.
The Miramar beach was one of the beaches chosen by the Union Ministry of Environment and Forests to pursue Blue Flag certification.
The Ministry of Environment Forest and Climate Change in a notification issued on July 12, identified 12 beaches across the country including Miramar beach for the purpose of Blue Flag Certification “in order to conserve, protect and improve the quality of environment and preventing, controlling and abating environmental pollution.”
The Blue Flag Programme for beaches, marinas and tourism boats is run by the international, non-governmental, non-profit organisation FEE (the Foundation for Environmental Education) Denmark. The Blue Flag programme challenges local authorities and beach operators to achieve high standards in the four categories of: water quality, environmental management, environmental education and safety.
If the minimum criteria as stipulated is met, the beach is granted the ‘Blue Flag Certification’ that goes a long way in helping tourists decide which beach destinations they should visit.
The notification made it possible to permit several activities and facilities up to a distance of 10 meters from HTL. In the absence of the impugned Notification, it is quite doubtful whether several of the activities and facilities referred to in the impugned Notification could have been put up on the Miramar beach or at least in the area up to 200 meters from HTL on the Miramar beach and that too without prior clearance.
“Therefore, unless there was genuine public interest or some urgency that did not brook the delay of even 60 days, the Central Government was not justified in dispensing with a public notice under clause (a) of sub-rule (3) of Rule 5 of the said Rules and depriving the stakeholders of opportunity to lodge their objections,” the High Court said.
The Court ruled that in the present case, the Central Government dispensed with the public notice and therefore when questioned had the obligation to explain, by placing relevant material, the reasons for which and circumstances in which the (prior) notice came to be dispensed with.
“The mere recital of ‘public interest’ in the impugned Notification or an ipse dixit in the defense affidavit is not sufficient in such matters. The Central Government, when challenged, has to place on record the relevant material demonstrating such public interest in dispensing with the public notice. Sufficiency or adequacy of such material may not be the concern of a writ Court. But the existence and relevancy of such material is undoubtedly a concern when it comes to judicial review by a writ Court in such matters,” the High Court said.
“The alleged circumstance that certain activities are required to be undertaken for obtaining a blue flag certification or that such activities are in the public interest or that such facilities will permit overall improvement of the environment are all circumstances possibly relevant for proposing to permit certain operations or processes on the specified beaches notwithstanding the provisions of CRZ Notification of 2011.
However, such circumstances, by themselves, cannot be said to be relevant for dispensing with the public notice. The affidavit does not even attempt to answer what was the public interest involved in dispensing with the public notice,” the High Court said.
“The Central Government was required to state the reasons which prompted it to dispense with such public notice and thereby deprive the interested persons of filing objections in the matter. No such reasons are forthcoming… the Central Government was required to not only state the reason for dispensation of the public notice but also indicate some application of mind to the circumstance,” the High Court said.
