National Green Tribunal
Gopal Shetgaonkar vs Goa Coastal Zone Management Authority on 4 March, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 04 to 08 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 49/2020 (WZ)
Gopal Shetgaonkar Appellant
Versus
The Goa Coastal Zone
Management Authority & Anr. Respondent(s)
WITH
Appeal No. 50/2020 (WZ)
Ratnakar Shetgaonkar Appellant
Versus
The Goa Coastal Zone
Management Authority & Anr. Respondent(s)
WITH
Appeal No. 51/2020 (WZ)
Viraj Harmalkar Appellant
Versus
The Goa Coastal Zone
Management Authority & Anr. Respondent(s)
WITH
Appeal No. 52/2020 (WZ)
Mukund Nagesh Gad Appellant
Versus
The Goa Coastal Zone
Management Authority & Anr. Respondent(s)
WITH
Appeal No. 53/2020 (WZ)
Alex Fernandes Appellant
Versus
The Goa Coastal Zone
Management Authority & Anr. Respondent(s)
1
Date of hearing: 04.03.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Appellant: Mr. Subodh Kantak, Senior Advocate with Mr. Abhijit Gosavi, Advocate
in Appeal 49 to 52 of 2020
Mr. Shivshankar Swaminathan, Advocate in Appeal 53/2020
ORDER
1. This order will deal with Appeal Nos. 49 to 53 of 2020 as the issue raised in all the five appeals is identical. Challenge is to the order dated 10.02.2020 passed by the Goa Coastal Zone Management Authority (GCZMA) directing demolition. The impugned order is common except for the particulars of the property and the owner as per the operative part and the nature of violations as mentioned in the order separately. The operative parts in the said five appeals are quoted below:
Appeal No. 49/2020 (WZ) NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3975 (E) dated 31/10/2019 issued by the Ministry of Environment & Forests, Government of India, and in view of the directions issued by the Hon'ble National Green Tribunal in its orders dated 2/11/2017 and 25/02/2019 hereby directs the respondent to pay a penalty of Rs. 200000/- with regards to sunbeds, high volume speakers respectively and further directs respondent to demolish the illegal construction stated above within a period of 15 days failing which the Collector, North Goa, shall remove all 100 Sun beds, sheds on beach High volume music system facing the shore Permanent G+1 building with 12 rooms, Toilet block; wooden shacks Erected without CRZ NOC pertaining to Gopal Restaurant and Sai Ganesh Hotel through its owner Gopal Shetgaonkar, Mandrem after expiry of 15 days in terms of decision taken in 217th GCZMA meeting held on 04/12/2019 and 05/12/2019. Further, recover the expenses incurred for the same from Gopal Restaurant and Sai Ganesh Hotel through its owner Gopal Shetgaonkar, Mandrem as the arrears of land revenue. The Collector North Goa is required to submit a compliance report in respect of compliance of afore stated directions to the GCZMA a day after such exercise. The penalty of Rs. 200000/- be paid by Cheque/D.D drawn in favour of Goa Coastal Zone Management Authority."2
Appeal No. 50/2020 (WZ) "NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3324 (E) dated 26/10/2016 issued by the Ministry of Environment & Forests, Government of India, and in view of the directions issued by the Hon'ble National Green Tribunal in its orders dated 2/11/2017 and 25/02/2019 hereby directs the respondent to pay a penalty of Rs. 100000/- with regards to sunbeds and further directs respondent to demolish the illegal construction stated above within a period of 15 days failing which the Collector, North Goa, shall remove all the structures i.e Shack: Temporary bamboo structure, 12 permanent cottages, 40 sun beds erected without CRZ NOC; pertaining to PALM GROVE BEACH RESORT THROUGH ITS OWNER RATNAKAR SHETGAONKAR /VIRAJ, MANDREM after expiry of 15 days in terms of decision taken in 217th GCZMA meeting held on 04/12/2019 and 05/12/2019. Further, recover the expenses incurred for the same from PALM GROVE BEACH RESORT THROUGH ITS OWNER RATNAKAR SHETGAONKAR /VIRAJ, MANDREM as the arrears of land revenue. The Collector North Goa is required to submit a compliance report in respect of compliance of afore stated directions to the GCZMA a day after such exercise. The penalty of Rs. 100000/- be paid by Cheque/D.D drawn in favour of Goa Coastal Zone Management Authority."
Appeal No. 51/2020 (WZ) "NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3975 (E) dated 31/10/2019; issued by the Ministry of Environment & Forests, Government of India, and in view of the directions issued by the Hon'ble National Green Tribunal in its orders dated 2/11/2017 and 25/02/2019 hereby directs the respondent to pay a penalty of Rs. 100000/- for violation of and further directs respondent to demolish the illegal construction stated above within a period of 15 days failing which the Collector, North Goa, shall demolish the 12 rooms, sheds on the beach & the temporary bamboo structure pertaining to Babu Huts & The Pagan Cafe through owner Viraj Harmalkar, Morjim after expiry of 15 days in terms of decision taken in 217 th GCZMA meeting held on 04/12/2019 and 05/12/2019. Further, recover the expenses incurred for the same from Babu Huts & The Pagan Cafe through owner Viraj Harmalkar Morjim as the arrears of land revenue. The Collector North Goa is required to submit a compliance report in respect of the direction on or before 13/08/2019. The Penalty of Rs. 1,00,000/- be paid by cheque / DD Drawn in favour of Goa Coastal Zone Management Authority."3
Appeal No. 52/2020 (WZ) "NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3324 (E) dated 26/10/2016 issued by the Ministry of Environment & Forests, Government of India, and in view of the directions issued by the Hon'ble National Green Tribunal in its orders dated 2/11/2017 and 25/02/2019 hereby directs the respondent to pay a penalty of Rs. 100000/- with regards to sunbeds, and further directs respondent to demolish the illegal construction stated above within a period of 15 days failing which the Collector, North Goa, shall remove ail the structures i.e Shack: Temporary Bamboo structure on permanent flooring; 7 cottages and 40 sun beds, 3permanent rooms erected without CRZ NOC; pertaining to SILENT BAR & RESTAURANT THROUGH ITS OWNER MUKUND GAD after expiry of 15 days in terms of decision taken in 207 th GCZMA meeting held on 13/07/2019. Further, recover the expenses incurred for the same from SILENT BAR & RESTAURANT THROUGH ITS OWNER MUKUND GAD as the arrears of land revenue. The Collector North Goa is required to submit a compliance report in respect of compliance of afore stated directions to the GCZMA a day after such exercise. The penalty of Rs. 100000/- be paid by Cheque/D.D drawn in favour of Goa Coastal Zone Management Authority."
Appeal No. 53/2020 (WZ) "NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3975 (E) dated 31/10/2019 issued by the Ministry of Environment & Forests, Government of India, and in view of the directions issued by the Hon'ble National Green Tribunal in its orders dated 2/11/2017 and 25/02/2019 hereby directs the respondent to pay a penalty of Rs. 200000/- with regards to sunbeds and high volume speakers respectively, and further directs respondent to demolish the illegal construction stated above within a period of 15 days failing which the Collector, Nort h Goa, shall remove all the structures i.e 32 Sun beds on beach, music speakers facing the beach and demolish the Permanent RCC Structure with FCC Flooring , G±1 which is erected without CRZ NOC, pertaining to the Sunset Bar & Restaurant through its owner Alex Fernandes / Biswajit Gain, Mandrem after expiry of 15 days in terms of decision taken in 217 th CCZMA meeting held on 04/12/2019 and 05/12/2019. Further, recover the expenses incurred for the same from the Sunset Bar & Restaurant through its owner Alex Fernandes / Biswajit Gain, Mandrem as the arrears of land revenue. The Collector North Goa is required to submit a compliance report in respect of compliance of afore stated directions to the GCZMA a 4 day after such exercise. The penalty of Rs. 200000/- be paid by Cheque/D.D drawn in favour of Goa Coastal Zone Management Authority."
2. The impugned orders state that temporary structures were illegally constructed along the beaches of Morjim, Mandrem, Galgibag and Agonda without specific permission from GCZMA in 'No Development Zone' (NDZ) in violation of CRZ Notification, under the Environment (Protection) Act, 1986. OA 23/2014 was filed before this Tribunal by Goa Paryavaran Savrakshan Sangharsh Samitee seeking remedial action. This Tribunal, vide order dated 02.11.2017, sought status reports and in view of illegality emerging from the status report, particularly report of the Forest Department that illegal constructions adversely affected the preservation of the 'turtle nesting sites', directed GCZMA to take remedial action to enforce law, considering the recommendations of the Forest Department for preserving turtle nesting sites as follows:
"i) No beach beds to be set up in the intertidal zone. The existing practice in Morjim is to lay the beach beds very close to the waterline leaving little scope for the turtles to move up.
ii) The beach shacks to desist from installing any outdoor illumination. The indoor lighting should also be muted and provided with opaque shields on sea facing side.
iii) Playing of loud music by the shacks beyond 6.00 PM and holding of beach parties to be prohibited.
iv) Movement of any automobile on the beach to be prohibited.
v) It should be made incumbent upon the shack licensees to play a proactive role in ensuring conducive condition to the mare turtles besides information sharing with staff of Forest Department which monitors the entire coast."
3. The GCZMA constituted a three-member Committee comprising Deputy Conservator of Wildlife, Goa, Member Secretary, Goa State Pollution Control Board and Member Secretary, GCZMA with Deputy Conservator of Wildlife as Nodal Agency for compliance and coordination.
5The said Committee gave its report finding violations mentioned in the impugned order.
4. The violations as per the impugned orders in respect of individual appellants (in five appeals) have been found to be as follows:
Appeal No. 49/2020 (WZ) " NAME OF THE VILLAGE GPS VIOLATION VIOLATOR READING Gopal Restaurant Mandrem N 15° 38' 25.0" 100 Sun beds, sheds on beach and Sai Ganesh E 73° 43' 09.0" High volume music system facing Hotel through its the shore Permanent G+1 owner Gopal building with 12 rooms, Toilet Shetgaonkar block; wooden shacks Erected 9822147416 without CRZ NOC.
Appeal No. 50/2020 (WZ)
NAME OF THE VILLAGE GPS VIOLATION
VIOLATOR READING
Palm Grove Beach Mandrem N 15° 38' Shack: Temporary bamboo
Resort through its 50.01" E structure, 12 permanent cottages,
owner Ratnakar 73° 43' 00.7" 40 sun beds erected without CRZ
Shetgaonkar NOC
9822699673 /Viraj
9764893599
Appeal No. 51/2020 (WZ)
NAME OF THE VILLAGE GPS VIOLATION
VIOLATOR READING
Babu Huts & The Morjim N 15° 38' 43.4 40 Sun beds. 8 sheds on
Pagan Cafe through E 73° 43' 02.7" beach Shack: Temporary
owner Viraj Bamboo structure; 12 cottages
Harmalkar on permanent plinth and
partial laterite walls. Erected
without CRZ NOC.
Appeal No. 52/2020 (WZ)
NAME OF THE VILLAGE GPS VIOLATION
VIOLATOR READING
Silent Bar & Mandrem N 15 38' 54.5" Shack:Temporary Bamboo
Restaurant E 73° 43' 59.5" structure on permanent flooring;
through its owner 7 cottages and 40 sun beds,
Mukund Gad 3perman.ent rooms erected
without CRZ NOC
6
Appeal No. 53/2020 (WZ)
NAME OF THE VILLAGE GPS VIOLATION
VIOLATOR READING
32 Sun beds on beach
The Sunset Bar &
2) music speakers facing the
Restaurant through Mandrem N 15°40'01.7"
beach. Permanent RCC
its owner Alex E 73° 42' 41.8"
Structure with PCC Flooring,
Fernandes
G+lwithout
9423837422/
CRZ NOC "
Biswajit Gain
5. The report was duly considered by the GCZMA and order of demolition was passed on 02.05.2019. Against the said order, writ petition was filed before the High Court of Bombay. The High Court passed an interim order that action should not be taken without following natural justice and in the light of said order dated 06.05.2019, the GCZMA issued show cause notice. After considering the reply and granting hearing, the GCZMA passed further order dated 15.07.2019. In the meanwhile, the writ petition pending before the High Court was disposed of on 28.06.2019 by directing that the order may not be enforced for 15 days after the same is passed. The affected parties again approached the High Court against order dated 15.07.2019 and the High Court directed fresh consideration of the matter. Thereafter the impugned order has been passed after giving personal hearing holding as follows:
"AND WHEREAS, in the 217th GCZMA Meeting held on 04/12/2019 and 05/12/2019 for personal hearing, the Authority decided that, "In so far as the arguments of the Ld. Counsel for the above common respondent is concerned, the authority decided to give its decision upon deliberating on the fact as to whether there is any need to undertake any re-inspection in the matter as has been strenuously argued by their counsel. In the first place they stated that by going through the backdrop of the proceedings, it first commenced on the fact that upon declaration of Turtle nesting sites for the endangered olive ridley breed that were happening in the various parts of Goa the beaches of Agonda, Galgibag, Mandrem and Anjuna were notified and on theses beaches no such activity should be permitted which would disturb the endangered Olive Ridley Turtles. The activity of placing sun-beds, bright lights and high volume speakers including erection of unauthorized shacks and huts pose a hindrance for the turtles. It is because of this that the Hon'ble NGT took cognizance of the large scale violations to protect the 7 endangered species because of the petition filed by Goa Parvyavaran Savrakshan Manch. The Hon'ble NGT itself thereafter constituted a 3 member committee to personally visit the beaches and identify the violators along with the violation done by them and hence to cast aspersions on this committee by the authority would tantamount to mean that the authority was hand in gloves with the violators. Secondly, the question of issuing any prior notice upon the violator without knowing as to who the violator is doesn't arise but nevertheless after the report was prepared by the 3 member committee a show cause notice was definitely served upon the violators indicating the nature of violation and hence on this count the principles of natural justice gets fulfilled. The authority was thus of the opinion that the need to have a re-inspection in all of the cases may not arise and hence the general proposition of the respondent counsel for the above violators was not accepted".
AND WHEREAS, in the 217 th GCZMA Meeting held on 04/12/2019 and 05/1 2 /2 019 for personal hearing in this current case, the proceedings are as follows, "The Respondent stated that the offending structure is of the era prior to 1991 & hence the CRZ Notification of 1991 would not be applicable to him. He relied upon permission No.10/89-90 dt.23/10/1989 granted by the V.P of Mandrem to reconstruct the Kaccha House located in property bearing Sy.No.214/2. He has also placed on record the permission issued to him by the V.P of Mandrem to establish a Restaurant & traditional dance and music centre in this very premises which bears No.387/1. Since the alleged offending structure was of the period prior to 19/02/1991 the question of applicability of the CRZ Notification of 1991 does not arise. He hence prayed that the Show Cause Notice be dropped".
AND WHEREAS, in the 217th GCZMA Meeting held on 04/12/2019 and 05/12/2019 for personal hearing in this current case. The Authority decided that, "The Permissions so obtained by the Respondent is to have a restaurant in the premises bearing No.387/1. What the 3 member committee has observed is more than what meets the eye. They had observed about 100 sun beds on the beach, high volume speakers, G+ 1 building with 12 rooms, toilet block & wooden shacks without prior NOC from the Authority. Benefit of doubt can be given to the Respondent for the ground + 1 structure with 72 rooms because he seems to have some documentation on this aspect. However, the toilet block, wooden shack have no permission whatsoever from the Authority. Prior permission is mandated as per the CRZ Notification of 1991 & 2011 to carry out any activity in CRZ areas, which in this case is not existing. The Authority this concluded to issue directions to demolish the toilet block & wooden shacks including sheds on the beach & impose penalty of Rs.2,00,000/- for placing sun-beds on the beach & for using high volume music system"."
6. Only submission on behalf of the appellants is that while they have no objection to demolition of constructions raised after 1991 in terms of the impugned order, the constructions in existence prior to 1991 as per 8 the impugned orders may not be demolished, subject to compliance of all requirements necessary for preservation of turtle nesting sites.
7. While we do not find any ground to interfere with the impugned order as such, we leave the limited question with regard to the constructions existing prior to 1991 to be reconsidered in the light of the above submission. With regard to the structures found to be not in existence prior to CRZ notification, the appeals are dismissed and demolition in terms of the impugned orders be carried out.
The appeals are disposed of accordingly.
Adarsh Kumar Goel, CP S.K. Singh, JM Dr. Nagin Nanda, EM March 04, 2021 Appeal Nos. 49 to 53 of 2020 (WZ) DV 9