Merely claiming to act in ‘public interest’ doesn’t absolve the government of issuing a prior public notice of its intentions and calling for objections as mandated by the Environment Protection Rules, 1986, especially if it doesn’t sufficiently justify why such prior public notice is not being issued, the Bombay High Court at Goa has ruled.
The High Court proceeded to quash the notification issued by the Ministry of Environment, Forests and Climate Change, which allowed certain structures like grey (sewage) water treatment plants and solar panels to be built as close as ten metres from the high tide line, without prior clearance from CRZ authorities, along certain beach stretches for the purposes of Blue Flag Certification.
“The mere recital of ‘public interest’ in the impugned Notification or an ipse dixit in the defence 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 bench of Justices Sunil Deshmukh and Mahesh Sonak, said on Friday.
The Ministry, in a notification issued in July 2019, declared that to obtain blue flag certification, on 12 beaches, including in particular Miramar (Panaji, Goa), certain specified structures/facilities shall be permitted in the Coastal Regulation Zone (CRZ) area subject to maintaining a minimum distance of 10 meters from High Tide Line (HTL).
{{/usCountry}}The Ministry, in a notification issued in July 2019, declared that to obtain blue flag certification, on 12 beaches, including in particular Miramar (Panaji, Goa), certain specified structures/facilities shall be permitted in the Coastal Regulation Zone (CRZ) area subject to maintaining a minimum distance of 10 meters from High Tide Line (HTL).
{{/usCountry}}A group of public-spirited petitioners challenged the notification specifically pointing out that there was no justification to dispense with the public notice and if such public notice had indeed been issued, then they and other stakeholders would have lodged their objections… [stating that] to permit such facilities up to a distance of 10 meters of HTL might result in disproportionate environmental damage.
“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 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.
The Environment Protection Rules mandate that if the central government wishes to impose prohibition or restrictions on the locations of an industry or the carrying on of processes and operations in an area, it may… give notice of its intention to do so” and “any person interested in filing an objection may do so in writing to the central government within sixty days.”
In the case of the Blue Flag certification, the Ministry cited a clause, which it said empowered it to dispense with the need for publishing a prior notice in ‘public interest.’
“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.
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 the 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: water quality, environmental management, environmental education and safety.
In order to avail of the certification, a beach must meet certain environmental standards including water quality, cleanliness as well as a defined set of facilities including changing rooms, signages, toilets as well as being accessible to users of wheelchairs, etc.
Goa’s Miramar beach located in the capital city was one of the beaches selected for upgradation but was met with opposition by local residents who argued that such a blanket dispensation would do more harm than good.
“[The] 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 High Court said.
“We quash the impugned notification dated 09.01.2020 in so far as it concerns Miramar (Panaji Goa),” the High Court said.