NATIONAL GREEN TRIBUNAL
                       Principal Bench, New Delhi
                           Appeal No. 22 of 2012

                      Thursday 6th September, 2012
    Quorum

 1. Hon'ble Shri Justice M. Chockalingam
     (Judicial Member)
 2. Hon'ble Prof. R. Nagendran
     (Expert Member)

    BETWEEN:

    Mr. JOSEPH COUTINHO
    Son of Domnic Coutinho, R/o H. No. 5-212m Umtawado
    Calangute, Bardez, Goa
                                                              .... Appellant
                                    VERSUS

1. Goa State Pollution Control Board
   Through its Member Secretary, having its office at
   Dempo Towers
   Patto Plaza
   Panaji, Goa

2. Goa Coastal Zone Management Authority
   Through its Member Secretary, having its office at
   Saligao, Bardez, Goa                               .... Respondents




    (Advocates appeared: Mr. Vilas S Parab, Advocate for Appellant and Mr.
    Bhavani Shankar for Respondent No. 1 and No Appearance for
    Respondent No. 2 and set ex-parte)
                                                                  Page 1 of 10
                         JUDGMENT

This appeal challenges the directions dated 12.4.2012 issued by the Goa State Pollution Control Board, the First Respondent herein under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 31 of the Air (Prevention Control Pollution) Act 1981. Thereby the First Respondent has cancelled/revoked consent to operate dated 24.2.2012 and further directed the Appellant to stop business activities forthwith and report compliance within a period of seven days.

Necessary facts for the disposal of this appeal can be stated thus. The Appellant purchased a plot measuring 510 sq.m in survey No. 202/1A of village Calangute along with an existing house therein. The said house bearing No. 5/212/C has been in existence since 1970. The Appellant converted the said old house into a small guest house consisting 20 rooms. After obtaining "No Objection Certificate" from the Village Panchayat, the Appellant commenced a Guest House business under the name and style of Sea Shore Hotels. The Appellant has made a substantial investment of Rs. 21 lakhs. He has no other business or source of income other than the said business. Though originally the Appellant obtained establishment licence (Trade) from the Village Panchayat with an intention of operating the Restaurant the same was not renewed and the Appellant did not operate the Restaurant. While the Appellant was carrying on the said business a neighbour Mr. Anthony D' Souza who was running another Guest House by name and style of Horizon Hotel due to business rivalry was making false complaints to various authorities to initiate action against the appellant's business. There was a strange incident of discharge of sewage from the septic tank of the Appellant. On the complaint of D'Souza, the Health Officer issued a Show Cause Notice dated 9.7.2011 and the first respondent issued a notice on 12.8.2011. Both notices were replied. After Page 2 of 10 carrying out the necessary repairs and rectifying the overflow, the appellant informed the authorities on 25.7.2011 and 18.8.2011 and that there was no discharge of sewage thereafter. Both the Health Officer and the officials of the first respondent made a site inspection in the presence of D'Souza and recorded that there was no overflow of sewage from the septic tank of appellant. Pursuant to the communication from the First Respondent, the Appellant applied for consent to operate on 21.9.2011 by paying necessary fees therefor. Despite the application, the first respondent issued directions to the Appellant under Section 33A of the Water Act dated 20.1.2012. The Appellant informed to the First Respondent that steps were taken for getting consent to operate and hence the directions could be withdrawn. Following the necessary inspection and also examining the application made by the appellant as well as the detailed plans submitted by the appellant and being satisfied, the first Respondent issued the consent to operate dated 24.2.2012 under Water Act and also Air Act and the said consent to operate dated 24.2.2012 was granted for a period upto 20.10.2014 and the same was inforce.

While the matter stood thus, D'Sousa made complaint through his Advocate. Being misled by the same, the Second Respondent issued a show cause notice dated 13.9.2011 to the Appellant. The Appellant filed his reply on 28.9.2011 inter-alia stating that the structure of the Appellant was an old one and he has not violated any provisions of the Environment Protection Act, 1986 and CRZ Notification, 1991. He further stated that the Second Respondent had already gone through the very same issue in the year 2004 and after being satisfied with the documents of the Appellant had not pursued the matter further. While the Second Respondent resorted to drastic measure of directing disconnection of electricity and water to the Appellant's structure through a notice dated 10.12.2004, the Appellant approached the Hon'ble High Court of Bombay at Goa and filed WP 103 for 2005 challenging the same. The Hon'ble High Court Page 3 of 10 by an order dated 9.3.2005 set aside the notice dated 10.12.2004 with a further direction to Second Respondent to consider the reply of the Appellant after hearing the Appellant. The Second Respondent did not pursue the matter any further since it was set aside about the non-violation of the CRZ Notification. The said Mr. D'Souza had set up one Mr. Antony Fernandes to file another complaint against the Appellant. Following the same, the Block Development Officer after making the inspection has recorded that the said house of the Appellant was in existence from the year 1970. The Appellant had received an exactly identical show cause notice from the Second Respondent dated 13.9.2011. While the Second Respondent was satisfied about the legality of the Appellant's structure did not pursue the earlier show cause notice dated 23.7.2007. Though, the said show cause notice was issued on 13.9.2011, a reply was sent by the appellant and the Second Respondent has not pursued further. Even in an inspection held on 28.3.2012, the Respondent no.1 has not found any discharge of sewage from the Appellant's septic tank.

While the matter stood as above, to the shock of the Appellant, impugned directions dated 12.4.2012 were served on 13.4.2012 cancelling/revoking the consent to operate and further directing the Appellant to stop the business activities forthwith. The directions referred to a communication dated 12.3.2012 made by the Second Respondent to the First Respondent calling upon the First Respondent to keep the consent to operate issued to the Appellant in abeyance.

The impugned directions are void and have been issued in gross violation of natural justice since no show cause notices were issued to the appellant before revoking/cancelling the consent to operate. The First Respondent is not the authority to decide the legality or illegality of the structure. The First Respondent has acted without jurisdiction and authority of law. The First Respondent, a statutory Page 4 of 10 authority has not acted independently but has acted under the dictation of the Second Respondent. No reasons have been assigned for passing the impugned directions. The Second Respondent was not the appellant authority of the First Respondent and hence the First Respondent should not have acted on the directions of the Second Respondent. There was no reason to cancel or revoke the consent to operate given to the Appellant. And thus, the directions were arbitrary and unconstitutional and hence the impugned directions are liable to be set aside.

The First Respondent has filed an affidavit with the following averments.

It is true that the Consent to Operate order dated 24.2.2012 was granted to the Appellant to run his Sea Shore Hotel under the provisions of Water Act, 1974 and Air Act, 1981. Subsequently, the First Respondent Board was in receipt of a letter dated 14.3.2012 from the Member Secretary of Goa Coastal Zone Management Authority wherein the said authority informed the Board that it had issued a show cause notice dated 13.9.2011 to the Appellant and as such requested the First Respondent Board to keep its Permission/Consent to Operate order dated 24.2.2012 in abeyance till such a time the show cause notice dated 13.9.2011 issued was decided by the Coastal Zone Management Authority. In the light of the said directions of the Coastal Zone Management Authority, the First Respondent Board issued the impugned directions dated 12.4.2012 under section 33A read with Section 25/26 of the Water Act and under Section 31A read with section 21 of the Air Act and has cancelled/revoked the consent to operate to the Appellant.

Despite sufficient service of notice, the Second Respondent did not appear. And hence the Second Respondent was set ex-parte.

The following questions arise for consideration in this appeal:

1. Whether the impugned directions are liable to be set aside since they have been issued in gross violation of the principle of natural justice?

2. Whether the impugned directions are to be quashed as they are arbitrary and legally not sustainable?

The Counsel for the Appellant and also for the First Respondent Board put forth their contentions.

The Tribunal paid its anxious consideration on the submission made and also made scrutiny of the documents available.

Admittedly, the Appellant purchased a plot in survey No. 202/1A together with a house bearing No. 5/212/C in village Calangute. After getting necessary NOC dated 27.9.2007 from the village Panchayat, the Appellant commenced his hotel business after converting the old existing house into a small Guest House with 20 rooms with the name and style 'Sea Shore Hotels'. The NOC given to the Appellant is found in Annexure 'B'. A neighbouring Hotel owner one Mr. Antony D'Souza lodged a complaint to the First Respondent which resulted in a Show Cause Notice dated 9.7.2011 from the Health Officer and another notice dated 12.8.2011 from the First Respondent stating there was discharge of sewage from the septic tank of the Appellant. The Appellant carried out the necessary repairs and informed the authorities who made inspections on different dates and recorded that there was no overflow of sewage from the septic tank of the Appellant which is evident from Annexure 'D'. The First Respondent has also categorically admitted in its counter that a consent to operate order dated 24.2.2012 was granted to the Appellant. Needless to say, the said consent to operate should have been given by the First Respondent to the Appellant after making necessary site inspection and following necessary procedural formalities. It is pertinent to point out that Page 6 of 10 the said Consent to Operate Order dated 24.2.2012 was for a period upto 20.10.2014 and thus it remained in force. A reading of Annexure 'G' will make it clear that the Second Respondent had issued the directions disconnecting electricity and water supply to the structure of the Appellant by a notice dated 10.12.2004 which was set aside by the High Court of Bombay at Goa in WP 103/2005 holding that the said notice was vitiated by violation of principles of Natural Justice. Though, the Second Respondent could have proceeded with the same after giving opportunity to the Appellant but did not do so. It has to be taken that the Second Respondent was satisfied that there was no violation of CRZ Notification by the Appellant and hence did not pursue the same. The Appellant has also produced the necessary documents found in Annexure 'I' to indicate that on a complaint made by one Antony Fernandes, the Block Development Officer made an inspection and has recorded that a house was in existence in the Appellant's property from 1970 onwards. This would also support the case of Appellant that there was an old structure in the site and was in existence from 1970 and thus there was no violation of CRZ Notification.

The directions of the first Respondent dated 12.4.2012 reads as follows:

"AND WHEREAS, subsequently the Board, is in receipt of letter No. GCZMA/GEN-COMPL/11-12/1356 dated 14.03.2012 from the office of the Goa Costal Zone Authority, stating therein that the Authority has issued a Show Cause Notice dated 13.09.2012 to Shri Joseph Coutinho and Shri Sohil Patgel owner of M/s Sea Shore Hotel regarding illegal construction of the structure within 200 mts from high tide line and further requested the Board to keep the permission granted by the Board in abeyance till the show cause notice is decided. A copy of said letter enclosing therewith a copy of the show cause notice dated 13.09.2011 is enclosed herewith and marked as Annexure 'A' Colly."

The very reading of the above would clearly indicate that the first Respondent Goa State Pollution Control Board has acted only on a letter of the Second Respondent namely the Goa Coastal Zone Management Authority dated 14.3.2012. The First Respondent on the strength of the said letter has passed the drastic order cancelling/revoking the Consent to Operate Order which was originally granted by the first respondent to the Appellant on 24.2.2012 which would be valid till 20.10.2014. The impugned direction is a glaring example of the gross violation of the principles of natural justice. Not even a notice was given to the appellant by the first Respondent nor an opportunity of being heard was offered to the Appellant as required in Law before the order of cancellation of Consent to Operate Order. The first Respondent is an independent statutory authority and it has to exercise its powers vested on it by the Statute.

In the instant case the First Respondent has not acted independently or has exercised powers vested upon it by following the procedure envisaged in Law. On the contrary, it has acted on the dictation and direction of the second Respondent which was not expected of. The Second Respondent was neither the Appellate nor the Superior authority of the First Respondent.

What are all stated in the reply affidavit which necessitated the first Respondent to make an order of cancellation of the Consent to Operate is as follows:

"I state that subsequently, the Respondent no. 1 Board, was in receipt of a letter dated 14.03.2012 from the Member Secretary of the Goa Coastal Zone Management Authority (GCZMA), wherein the said Authority, informed the Board that it had issued a Show cause notice dated 13.09.2011 to the present Appellants Hotel Unit, Page 8 of 10 namely M/s Sea Shore Hotel, and as such requested the Respondent Board to keep its permission/Consent to operate order dated 24.02.2012, in abeyance, till such time as the Show cause notice dated 13.09.2011 issued was decided by the Authority."

The very reading of the above makes it explicit that the first respondent who on being satisfied issued consent to operate order dated 24.02.2012 had no reason to cancel the same but has acted pursuant to the directions of the second respondent. The first respondent thus has not only violated the principles of natural justice in passing the order but was also arbitrary. It is pertinent to point out that the first respondent was not the authority to decide the legality or otherwise of the structure of the appellant. The fact that the Second Respondent had received a complaint against the Appellant cannot by itself vest an authority or power on the second Respondent to issue such a direction as found in its letter dated 14.3.2012 to the First Respondent. The First Respondent at no stretch of imagination can issue such directions revoking or cancelling the Consent to Operate. The Second Respondent had already issued directions disconnecting electricity and water supply in the year 2004. Though the said Notice was set aside by the Hon'ble High Court of Bombay in the year 2005 itself the second respondent had not pursued the same. Even the Show Cause Notice referred to in the directions to the First Respondent was dated 13.9.2011. After a period of nearly six months, the Second Respondent has addressed a letter to the First Respondent in the month of March 2012. If really, there was any violation of the CRZ Notification there was no impediment for the second respondent to proceed against the Appellant. But the Second Respondent has not done so. Instead it has directed the First Respondent to keep the Consent to Operate the Order in abeyance which was highly illegal. This will be quite suggestive that the second Respondent who could not proceed on the Show Cause Notice dated 13.9.2011 to the Appellant for lack of grounds has attempted to achieve its end of Page 9 of 10 cancellation indirectly through the First Respondent. All the above would adumbrate that both the Authorities have acted arbitrarily. The impugned order was an outcome of the non-application of mind and the mechanical approach of the First Respondent. The Second Respondent as a statutory authority, despite service of Notice a number of times has not cared to appear. The Second Respondent cannot have any reason for non-appearance. It is a statutory Body which is expected to strictly apply and follow law. Having issued directions to the First Respondent arbitrarily to cause consent to operate order in abeyance, that too after number of months of show cause notice, the nonappearance of the second Respondent before the Tribunal would show its reluctance, carelessness and the recalcitrant attitude of the officials of the Second Respondent which has got to be viewed seriously.

For all the reasons stated above the impugned directions of the First Respondent are to be set aside as legally unsustainable and accordingly they are set aside.

In the result, appeal is allowed along the direction to Respondents to pay a cost of Rs. 10,000/- each to the Appellant towards the costs of this Appeal.

Hon'ble Prof. Dr. R. Nagendran               Justice M. Chockalingam
Expert Member                                        Judicial Member




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