National Green Tribunal
Nalini Da Rosa Fernandes vs Goa Coastal Zone Management Authority on 23 May, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
Appeal No.14/2022 (WZ)
I.A.No.39/2022 (WZ)
Caveat No.04/2022 (WZ)
IN THE MATTER OF:
Sylvester D'Souza
Aged 56 years,
Saunta Vaddo, Calangute
Bardez Goa 403 516
[email protected]
[email protected] Appellant(s)
Versus
1. Goa Coastal Zone Management Authority
Through its Member Secretary
4th Floor, Dempo Towers
Patto Panaji Goa 403001
[email protected].
2.Nalini da Rosa Femandes
Saunta Vaddo,
Calangute, Bardez Goa 403 516
M: 96890 46688 Respondent(s)
With
Original Application No. 91/2021(WZ)
(I.A. No. 04/2022)
Nalini Da Rosa Fernandes
Age: Adult, Occ: Business,
R/at House No.7/2F,
Sauntavaddo, Calangute,
Baga, Bardez, Goa-403516. Applicant(s)
Versus
1. Goa Coastal Zone Management Authority & Ors.
through its Member Secretary
1st Floor, Pt.Deendayal Upadhay Bhavan,
Behind Pundalik Devasthan, Porvorim,
Phone-8322416561
Email: [email protected]
Page 1 of 57
2. Sylvester D'Souza
Aged 56 years,
Saunta Vaddo, Calangute
Bardez Goa 403 516
Email: [email protected] Respondent(s)
Counsel for the Applicant(s):
Appeal No.14/2022
Appellant(s): Mr. Ameet Kumar Deshpande, Sr. Advocate a/w
Mr. Jayant Umesh Karn, Advocate for Appellant.
Counsel for the Respondent(s):
Appeal No.14/2022
Respondent(s): Ms. Fawia Mesquita, Advocate for R1-GCZMA
Mr.Sangramsinh R.Bhonsle, Advocate for R-2
Counsel for the Applicant(s):
OA No.91/2021
Applicant: Ms. Samridhi S. Jain, Advocate for Applicant
Mr. Sangramsinh R. Bhonsle, Advocate for R-2.
Counsel for the Respondent(s):
Respondent: Ms.Maria Simonecorreia, Advocate for R-1.
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Reserved on : 06.05.2022
Pronounced on : 23.05.2022
JUDGMENT
1. This Appeal has been preferred under Section 16(g) of the National Green Tribunal Act, 2010, praying to quash and set aside the order dated 07.03.2022 passed by the Goa Coastal Zone Management Authority/Respondent No.1 directing demolition of all structures in the property bearing Survey No.242/1 (Part) and further directing to pay a sum of Rs.5,00,000/ (Rs. Five Lacs) as punitive costs for environmental violations.
Page 2 of 57
In brief, the facts of the case are as follows:
2. The Appellant acquired from one Shri. Luis Santo Pires the disputed property "Naguicachem Bhatta" at Saunta Waddo situated on Survey No.42/1 (Part), whereon various structures existed, in the village of Calangute much prior to coming into force the CRZ Notification 1991, and thus, the Appellant became the owner of the said property running a bed and breakfast facility since prior to coming into force CRZ Notification in 1991. The earlier owner had permitted the Appellant to build structures on the said property in the area of 1550 sq. mts for residing and development and also had allowed him to draw water from the well and to make necessary repairs. The Appellant has been living in the said house with his family ever since he got the property in the year 1984. On 15.12.1986, the earlier owner gave no objection to the Appellant to rebuild a storeroom and water tank in the said property.
The earlier owner also gave the Appellant no objection to transfer house tax of house No.2225 situated on the said property. Thereafter, permission was granted by the Village Panchayat of Calangute on 16.01.1987 in the name of the earlier owner. Hence, the Appellant carried out renovation and repairs of the existing structures. On 15.02.1987, the earlier owner issued a letter to the Sarpanch of the said village to enroll the name of the Appellant in the records of Panchayat pertaining to an existing structure. The Appellant is also using certain rooms of the said structure as a Guest House for tourists and also doing business in the nature of self-employment by granting accommodation to people as paying guests. Subsequently, various declarations and no objections were given by the earlier owner including transfer of house tax of house bearing No.2225, water tax, and electricity connection, in the name of the Appellant. One of such declarations was in the presence of the Sarpanch of the said village on Page 3 of 57 20.09.1988. The earlier owner further gave additional area of 2225 sq.mtr to the Appellant. All these facts clearly prove that in fact, the structures within the aforesaid property of the Appellant were of the period prior to coming into force of CRZ Norms in 1991. The Village Panchayat issued no objection to the Appellant for accommodating the tourists in two rooms of his house bearing No.2225 by a letter dated 24.12.1988, subject to conditions which were complied by the Appellant. The Appellant has been regularly paying establishment licence fees to the Village Panchayat. The water connection was also issued to the Appellant on 27.04.1989 and he has been paying house tax in respect of the said structures from the year 1988 onwards. He also got an electricity connection in his name which was issued in the year 1989-90, his name was also registered in the Ration Card for the years 1987, 1988, and 1989. The Appellant had also applied for registration of business under the Goa, Daman and Diu Registration of Tourists and Trade Act, 1982 which was allowed for the business of accommodating the tourists. The Appellant subsequently let out more rooms from the structures in question and by the year 1990 he had let out 18 rooms for the purpose of accommodating the tourists, however, he retained some structures for himself and his family as their houses of residence. The Appellant had not built any new construction after coming into force of CRZ Notification 1991 and has been running his business of the hotel. A Show-cause Notice dated 17.07.2001 was issued to the Appellant by Respondent No.1/GCZMA alleging unauthorized construction of 800 sq.mtr in Survey No.242/1 (Part) within No Development Zone (NDZ) of 200 mtr from High Tide Line (HTL). On 12.04.2002 a similar show-cause Notice was issued to the Appellant by Respondent No.1 alleging unauthorized construction of 800 sq. mtr on the same land within NDZ of 200 mtr from HTL. Both Notices were replied on 12.04.2002, stating that he had not violated any provisions of CRZ Regulations nor had he done any illegal construction Page 4 of 57 of 800 sq.mtr within 200 mtr within HTL. It was specifically stated in his reply that the structure of the Appellant falls beyond 200mtr of HTL and that the structures which were referred to as the hotel were in existence in the property in question since prior to 1991, they were only renovated with permission. On 29.09.2005, Respondent No.1 issued an order directing the Appellant to demolish said hotel within one month from the date of passing the order against which the Appellant filed Writ Petition No.24 of 2007, wherein the operation of the order dated 29.09.2005 had been stayed. When the matter came for final hearing on 13.07.2007, Respondent No.1 submitted before the Hon'ble High Court that the impugned order and all other consequential orders would be withdrawn and that Inspection of the documents and fresh hearing would be permitted to the Appellant. Based on the said submissions of Respondent No.1, the Hon'ble High Court passed final order to the effect that order dated 29.09.2005 and consequential orders stand withdrawn and granted liberty to Respondent No.1 to pass a fresh order, after giving opportunity of Inspection of all the documents to the Appellant and after hearing the Appellant afresh. The Appellant was also given Panchnama dated 23.06.2001 of the Village Panchayat, Calangute, which was relied upon by Respondent No.1. Pursuant to the said order of the Hon'ble High Court, the Appellant was issued a Notice dated 20.11.2007 to appear before Respondent No.1 for a personal hearing on 28.11.2007, and the Appellant filed an additional reply on 20.11.2007 and on 31.12.2007. Again on 01.02.2008, another Notice was issued by the Respondent No.1 to the Appellant to appear before it for a personal hearing, which was scheduled on 20.02.2008 on which date the Appellant remained present in person and requested for site Inspection and verification in regard to his structures, but the same was rejected, stating that the same was not required at this stage. On 07.03.2008, the Appellant filed the reply along with documents and the hearing was concluded. After about 3 years and 4 months a Notice dated 18.07.2011 Page 5 of 57 was suddenly received by the Appellant informing that hearing before the Respondent No.1/GCZMA was scheduled on 03.08.2011, thereafter the Appellant again filed an additional reply on 09.08.2011 and cited four (4) witnesses to be examined in support of his case. The hearing was given to the Appellant on 10.08.2011, and all the documents filed by him were brought to the notice of the four (4) Members including the Director/Ex-officio, and Joint Secretary. On 21.02.2012 the Appellant received earlier impugned order dated 15.02.2012 through the post passed by Respondent No.1 directing the Appellant to remove 18 rooms. Being aggrieved by the said order, the Appellant preferred Writ Petition No.195 of 2012 before the Hon'ble Bombay High Court at Goa, which was dismissed, holding that the issue falls in the domain of this Tribunal. Thereafter, the Appellant filed Review Application No.8/2018, but that too was dismissed by the order dated 13.04.2018. Thereafter, the Appellant approached the Hon'ble Supreme Court by filing Special Leave Petition Nos. 13457 and 13458 of 2018, the first being against the Judgment and Order dated 22.03.2018 and the second against the Order dated 13.04.2018, and the Hon'ble Supreme Court was pleased to dispose of them by the order dated 25.03.2018, which is as follows:
"O R D E R Heard learned counsel for the parties.
We are not inclined to interfere with the judgment of the High Court which is impugned in these special leave petitions.
We make it clear that in view of the order dated 15th February 2012, passed by the Goa Coastal Zone Management Authority (Annexure P- 26) holding that no prior permission has been taken in regard to the subject structures having become final, it will be open to the authorities to proceed on the basis of the said order in accordance with law.
Page 6 of 57 While doing so, the Authority may take into account the efficacy of Resolution dated 20th February, 2012 (Annexure P-27) passed by the Village Panchayat purporting to regularize the subject structure. The effect of that Resolution may be taken note of as per law. Needless to observe that the authorities may give opportunity to both the parties, if necessary, as permissible in law. The special leave petitions stand dismissed in the above terms."
3. In pursuance of the said order of Hon'ble Supreme Court, the Appellant had filed an Appeal No. 51 of 2018 along with Application for condonation of delay, however, the Tribunal vide order dated 16.08.2018 was not inclined to condone the delay and entertain the Appeal primarily on the ground that the Hon'ble High Court had considered the matter and concluded that the demolition order could not be faulted, after detailed discussion. The said order of demolition dated 15.02.2012 against which the Appellant had filed Writ Petition No.195 of 2012, was communicated to him on 21.02.2012.
4. The principal ground on which Respondent No.1 was proceeding against the Appellant, was that there was no document showing that the Appellant had put up these structures, whose demolition was sought, prior to the coming into force of the CRZ Notification, 1991. The Appellant, therefore, had made an Application before the Village Panchayat, Calangute, seeking regularization of his structures, as the said Authority was only the forum which had jurisdiction to regularize the structures, as they were in existence since prior to coming into force of the CRZ Notification, 1991. Moreover, they were situated within the local limits of Village Panchayat, Calangute. The Appellant had to produce documentary proof before the Village Panchayat to establish that these structures were in existence prior to coming into force of the CRZ Notification, 1991. Hence, their Page 7 of 57 regularization would not be contrary to the provisions of the CRZ Notification, 1991. Upon consideration, the Village Panchayat passed a resolution on 20.02.2012 regularizing the structures located in Survey No.242/1 of village Calangute, upon concluding that they existed prior to 1991. The said finding did not form part of the Writ Petition No.195 of 2015 as originally filed. When the Appellant moved the Hon'ble High Court to permit him to bring on record Resolution dated 20.02.2012 of Village Panchayat, the Hon'ble High Court vide its order dated 12.02.2018 directed that the documents be produced on record. The resolution of Village Panchayat regularizing the structures was also brought to the notice of the Hon'ble Apex Court by the Appellant, whereupon the order dated 25.08.2018 was passed, saying that it would be open for the authorities to proceed on the basis that the order of demolition dated 15.02.2012 passed by the Respondent No.1 was in accordance with law and that while saying so, the Authority may take into account, the efficacy of the said resolution dated 15.02.2012, (15.02.2012 appears to be wrong, it should be 20.02.2012) and further observed that the concerned parties be given an opportunity to be heard, if necessary, as permissible in law. In pursuance of the said order, the Appellant vide date 30.05.2018 placed a resolution dated 20.02.2012 along with order of Apex Court dated 25.08.2018 before the Respondent No.1 and requested that the demolition order dated 15.02.2012 be recalled in view of the fact that the structures in question were in existence prior to coming into force the CRZ Notification, 1991, as such the question of considering the legality of those structures would not arise. Respondent No.1 fixed date 18.07.2018 for a personal hearing. The parties were heard on 31.07.2018, and vide order dated 24.08.2018, it decided to reaffirm its earlier order dated 15.02.2012 in respect of 18 structures in Survey No.242/1 (Part). Aggrieved by the said order, the Appellant preferred the Writ Petition No.915 of 2018 before the Hon'ble Bombay High Court at Page 8 of 57 Goa, which was considered on 10.09.2018, and interim relief was granted to the Appellant. Subsequently, on 28.09.2018 and 19.10.2018, interim relief was ordered to be continued and the status quo was directed to be maintained. Later on, vide order dated 29.11.2018 the said petition was dismissed on the ground of an alternate remedy being available, however, the stay was extended for six (6) weeks to enable the Appellant to avail of an alternate remedy. In the meanwhile, the limitation period to file an Appeal before the Tribunal had expired on the day when the order was passed by the Hon'ble High Court, and therefore, the Appellant preferred an Application for extension of time which was registered as Misc. Civil Application No.28 of 2019, praying to enable the Appellant to prefer an Appeal before the Tribunal but, the Hon'ble High Court dismissed the said application vide order dated 28.01.2019 for extension of time observing as below:
"However, it is made clear that this Court has not examined the issue of extension of time under Section 14 of the Limitation Act as it is neither raised nor had arisen before this Court. The Application is without any merit and it is accordingly dismissed, with no order as to costs."
5. Aggrieved by the said order, the Appellant preferred SLP (Civil) No.6063-6064 of 2019, and four (4) weeks' time was allowed to the Appellant by the Hon'ble Apex Court vide order dated 05.03.2019 to prefer an Appeal before the National Green Tribunal (NGT). The Appellant preferred an Appeal No.24 of 2019 before the NGT against the order dated 24.08.2018 passed by the Respondent No1./GCZMA and the said appeal was dismissed by the NGT vide order dated 03.04.2019, on the ground that once the area had been held to be covered under the CRZ Notification, 1991, the issue of regularization did not arise and could not have been considered by the Village Panchayat. Page 9 of 57
6. Aggrieved by the said order of the NGT, Civil Appeal No.3735 of 2019 was preferred before the Hon'ble Apex Court, which was dismissed vide order dated 22.04.2019. Thereafter vide letter dated 20.06.2019, Respondent No.1 directed Deputy Collector and SDO, Bardez, Goa for demolition of 18 rooms referred to in the demolition order dated 15.02.2012 and informed him that the rooms to be demolished will be identified by the Expert Members/Surveyor of Respondent No.1 on the date of demolition. The Deputy Collector and SDO and In-charge of Demolition Squad, Collector Goa, vide order dated 10.07.2020 (10.07.2019 appears to be wrongly mentioned in the Memo of Appeal) constituted a Demolition Squad for the purpose of demolition of said 18 rooms. Respondent No.1 vide order dated 23.07.2019 (not found on record) asked its own Field Surveyors to remain present on the site on the date of demolition. On 24.07.2019 the Field Surveyors of Respondent No.1 identified 12 rooms out of 18 rooms, to be demolished as per a plan given to them and the Demolition Squad constituted by the office of the Deputy Collector and SDO, Panaji, Goa demolished 12 rooms out of 18 rooms, ordered to be demolished by Respondent No.1. A detail Panchnama was drawn by the Demolition Squad, which stated that the representative of Respondent No.1 carried out a detailed Inspection of the entire property and was able to identify 12 out of 18 rooms, ordered to be demolished and that the plan given to them was insufficient to identity remaining 06 rooms.
7. In pursuance of demolition carried out on 24.07.2019, the Mamlatdar of Bardez Taluka, vide order dated 25.07.2019 informed the Deputy Collector and SDO, that 12 rooms out of 18 rooms had been demolished and that the representative of Respondent No.1 informed that the map given to them was insufficient to identify remaining 06 rooms mentioned in the order, therefore, the demolition of the remaining 06 rooms could not be carried out.
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8. On the date of demolition, the Appellant asked the Members of the Demolition Squad to show how the rooms were identified in absence of any plan/map, but the Appellant was told that they were using the map/plan given to them to identify the said structures but the Appellant was not given such map/plan which was being referred by them. After completion of the demolition of 12 rooms, the Appellant requested the Members of the Demolition Squad to demolish 06 rooms, but the Appellant was informed that the same was not possible because the map/plan being insufficient to identify the remaining 06 rooms.
9. On 16.10.2019, Respondent No.2 Ms. Nalini Da Roza Fernandez filed Execution Application No.13/2019 before this Tribunal, praying for the execution of order dated 03.04.2019 passed in Appeal No.24/2019 (Sylvester D'Souza Vs GCZMA & Ors.) which had upheld demolition order dated 24.08.2018 passed by GCZMA/Respondent No.1. In the said EA No.l3/2019, it was stated that only 04 rooms were demolished by the Demolition Squad on 24/07/2019 and not 12 rooms as recorded in the Panchnama. Vide order dated 19.12.2019 passed in EA No.13/2019, this Tribunal asked Respondent No.1 to file an Action Taken Report in respect of the demolition order dated 24.08.2018, pursuant to which Respondent No.1 ordered a site Inspection to be carried out, of the property in dispute i.e. Survey No.242/1(Part). On 13.01.2010, the site was inspected by the Expert Members and Field Surveyors who were accompanied by two Field Surveyors from the Department of Settlement of Land Records and the Talathi of Calangute. In pursuance of said Inspection conducted on 13.01.2020, the Expert Members and Respondent No.1 drew a Field Inspection Report, which is grossly erroneous as its conclusions were solely based on comparison with a Report and rough sketch dated 06.10.2016 which was drawn by the Goa State PCB and Respondent No.1 in a joint site Inspection pursuant to the complaint dated 06.02.2016, for the Page 11 of 57 discharge of waste in the neighbouring property. The Report and sketch map dated 06.10.2016 was never brought to the notice of the Appellant nor did the Appellant ever have an occasion to challenge the said Report and sketch map dated 06.10.2016. The conclusion drawn by the Expert Member of Respondent No.1 in the said Field Inspection Report dated 13.01.2020 has labelled as 'Structure L', which appears to have had 12 rooms which were demolished during demolition carried out on 24.07.2019, 'Structure I', having 06 rooms needed to be demolished in order to comply with the order of demolition of the year 2012. The Expert Members also stated that there were additional structures on the site and that Respondent No.1 may issue a Show-cause Notice in respect of them.
10. Vide order dated 15.01.2020, this Tribunal directed Respondent Nos.1 and 2 to file affidavits indicating the status of compliance of the order dated 03.04.2019 of this Tribunal.
11. Thereafter, the said Field Inspection Report dated 13.01.2020 was placed before the Respondent No.1 in the 219th Meeting held on 28.01.2019 and 29.01.2019, and the decision was taken as below:
"Decision The Members opined that the Respondent namely Sylvester D'Souza has taken the Authority for a ride on flimsy grounds stating that there was no identification of the offending structures that was done when the directions to demolish were first passed on 15/02/2012. Had this been the case, then the appellate forums including the Hon'ble Apex Court would have taken cognizance of this fact & in case there had to be any omissions on our part than our decision would have been set aside. Since our decision has been upheld, it was incumbent on the Respondent to adhere to our decision & demolish the offending structures on his own which he failed to do so prompting the Dy. Collector to requisition the services of the demolition squad. However, only 12 rooms were demolished instead of 18 rooms as the totality of 8 rooms could not be properly identified. The Authority took serious note of the stubborn attitude of the Respondent & decided not to issue any fresh notice of hearing as the proceedings were already adjudicated & decide in finality & what wars Page 12 of 57 left is only execution. In that sense of the term the structure identified With alphabet 'I' in the fresh plan prepared by the DSLR shall be the one which needs to be demolished forthwith so that there is complete compliance to the directions issued by this Authority for demolition of 18 rooms as contained in the order dt. 15/02/2012.
Apart from this, the Authority also noted that there are blatant violations done by the Respondent in property bearing Sy. No. 242/1-B of Calangute Village showing scant respect to the rule of law & such an attitude once again reinforces the fact that he has little or no respect to the CRZ norms as if they don't exist. The Authority thus decided to issue a separate & fresh show- cause notice on the Respondent in respect of structures identified with Alphabet A, B, C, D, E, F, G, H, I, K, L & the swimming pool within the said property."
12. Subsequently, Respondent No.1 filed an affidavit before this Tribunal stating that 12 rooms out of 18 rooms ordered to be demolished have been demolished by the Demolition Squad, and the remaining 6 unauthorized structures have been identified and labelled "I" in the plan and that the Respondent No. l has decided to issue instructions to demolish the said offending structure amounting to 6 rooms without giving any further opportunity to the Appellant in EA No.13/2019 (Appeal No.24/2019). The said affidavit was placed before the Tribunal on 05.02.2020 and during hearing the learned Counsel appearing for Ms. Nalini Da Rosa Fernandes, submitted that the Respondent No. 1 had not carried out the directions in accordance with the findings and instead of 12 structures, only 4 structures had been demolished. Thereafter this Tribunal, vide order dated 05.02.2020, directed Respondent No. l to examine and consider the objections and hear both parties i.e. the Appellant and Ms. Nalini Da Rosa Fernandez on 25.02.2020, and to file a Report of compliance on the next date. Subsequently, the Appellant and Ms. Nalini Da Rosa Fernandez appeared before Respondent No. l on 25.02.2020 for a personal hearing. On 06.03.2020, Respondent No.1 passed the order directing the Appellant to demolish 'Structure A' -06 rooms, 'Structure H' -02 rooms, Page 13 of 57 and 'Structure I' -6 rooms standing in Survey No.242/1-B of Calangute village and to restore the land to its original condition within a period of 15 days and also issued a Show cause Notice on 16.03.2020 to the Appellant containing all the structures which were not the subject matter of earlier demolition orders. It is further submitted by the Appellant that the said demolition order dated 16.03.2020 was passed in a malafide manner without jurisdiction at the behest of Ms. Nalini Da Rosa Fernandez/Respondent No.2 in the present Appeal. Against the said order dated 16.03.2020, the Appellant preferred a Writ Petition before the Hon'ble High Court bearing STM No.1033 of 2020. The same was the lockdown period and therefore, all the demolition orders had been stayed. But on 27.07.2020, during the proceedings before the Hon'ble High Court, it was agreed that the NGT had become functional through Video Conferencing and that the Appellant would try to approach the NGT before the blanket stay granted by the Bench of Hon'ble High Court ended. Subsequently, the Appellant preferred an appeal bearing No.46/2020 before NGT against the order dated 16.03.2020 to the extent it was seeking to demolish additional rooms, while in terms of the order dated 15.02.2012 only 18 rooms in total were to be demolished. In the meantime, as it was incumbent on the Appellant to defend the demolition order dated 16.03.2020 and also on account of the Covid Pandemic, the Respondent No.1 too could not hold hearing in the matter of the Show-cause proceedings dated 16.03.2020, as such the Appellant filed reply to the Show-cause on 16.03.2020.
13. It is further submitted that the Appellant had already filed statutory Appeal bearing No.46/2020 before this Tribunal and hence, the Writ Petition bearing STM No.1033 of 2020 filed before the Hon'ble Bombay High Court at Goa, was dismissed vide order dated 05.10.2020.
14. Further, it is mentioned that in the meantime, in the show cause proceedings dated 16.03.2020, the Appellant filed Application for Page 14 of 57 recusal of the Member Secretary on the ground of bias which was rejected. Subsequently, this Tribunal vide Judgment and final Order dated 28.01.2021 passed in Appeal No.46/2020 dismissed the appeal. Aggrieved by the said order dated 28.01.2021 the appellant preferred Civil Appeal No. 736 of 2021 before the Hon'ble Supreme Court which was dismissed vide order dated 15.03.2021 and subsequent to that order, the Appellant demolished structures which were the subject matter of the demolition order dated 16.03.2020.
15. Further, it is mentioned that after carrying out the demolition of the structures as per the order dated 16.03.2020, the Appellant submitted a compliance Report to the Deputy Collector and SDO and Mamlatdar of Bardez Taluka, who directed the Talathi to inspect the site and Report factual findings. Accordingly, the Talathi inspected the site on 19.08.2021 and sent a Report dated 20.08.2021 to the Mamlatdar stating that ' 'Structure A' -06 rooms, 'Structure H' -02 rooms, and 'Structure I' -06 rooms standing in Survey No.242/1-B of Calangute village which was ordered to be demolished vide order dated 16.03.2020 had been demolished by the Appellant. The Mamlatdar communicated the said Inspection Report of the Talathi to Deputy Collector and SDO, Bardez vide letter dated 07.09.2020.
16. It is further submitted that Respondent No.2 was aware of demolition carried out by the Appellant and also about Inspection Report filed in that regard, yet in order to harass the Appellant, he filed OA No.91/2021 before this Tribunal and obtained an order dated 01.12.2021 restraining the Appellant from carrying out commercial exploitation of the alleged unauthorized structures by misleading and suppressing from it that as per the Inspection Report of the Talathi, the structures which were to be demolished had already been demolished. Respondent No.2 sought to create confusion on the subject matter of the demolition order dated 15.02.2012, demolition order dated Page 15 of 57 24.08.2018, demolition order dated 16.03.2020 on one hand, and the Show-cause notice dated 16.03.2020 on the other. The subject matter of the demolition orders dated 15.02.2012, order dated 24.08.2018, and order dated 16.03.2020 are distinct and different from the structures which are the subject matter of the Show-cause notice dated 16.03.2020.
17. Thereafter, the Appellant filed IA No.04/2022 in the said OA No.91/2021. Further, it is mentioned that on 18.01.2022 OA No.91/2021 along with IA No.4/2022 was listed for hearing before this Tribunal, but no order was passed on IA. However, the Tribunal directed Respondent No.1 to decide the pending proceedings in respect of the show cause notice dated 16.03.2020 within six weeks from the date of order. Subsequently, in the 287th meeting of Respondent No.1, held on 03.02.2022, after hearing both the parties impugned order dated 07.03.2022 was passed which was received by the Appellant on 11.03.2022 directing the demolition of structures existing in the property bearing Survey No.242/1(Part) and to pay the sum of Rs.5Lakh as punitive costs for environmental violations. It is against this order that the present Appeal is preferred on the following grounds:
GROUNDS:
(i) "Respondent No.1 failed to consider the issues including the errors raised against the site Inspection Report dated 13.01.2020 and objections made against it were brushed aside.
(ii) Respondent No.1 has misconceived the orders passed in OA No.91/2021 and has relied upon observations which were made without hearing the Appellant and that the said order is interpreted to the detriment of the Appellant.
(iii) Respondent No.1 failed to consider that Show-cause notice dated 16.03.2020 was violative of the dicta of the Hon'ble Page 16 of 57 Supreme Court as laid down in Oryx Fisheries Pvt Ltd v Union of India 2010 (13) SCC 427 and failed to consider that when the Show-cause notice was issued to the Appellant in 221st Meeting, the Respondent No.1 had already branded the Appellant as a 'rank violator' who had 'hoodwinked' the authorities by raising technical issues. The minutes of the said meeting clearly demonstrate how Respondent No.1 and in particular, the then Member Secretary, was prejudged in the matter and concluded that the Appellant was guilty and that makes show-cause proceedings an empty formality. It is observed by Respondent No.1 that the Appellant is accused of having committed actions which are taking a toll on the future generation and that such persons 'have to be nailed.'
(iv) The Appellant, at this stage of Show cause notice, must have been told the charges against him so that he could take defence and prove his innocence but it is quite obvious that Respondent No.1 instead of telling him the charges had confronted with him difficult conclusions by his alleged guilt which vitiates entire proceeding of Show- cause notice.
(v) The impugned order also fails to advert to the contents of the contradictory affidavits filed by the Member Secretary before the different forums. It is in the affidavit of the Member Secretary that demolition was carried out in part due to change in fabric of structures which resulted in difficulty of identification of the structures and that the Appellant had successfully evaded the execution of demolition order dated 15.02.2012 in its entirety.
(vi) It is all false averments in the affidavit that the Appellant had tried to evade any demolition. In fact, the demolition Page 17 of 57 carried out on 24.07.2019 was in presence of the Demolition Squad which consisted of several authorities, including the representatives of Respondent No.1- Authority who themselves had identified 12 rooms out of 18 rooms, ordered to be demolished and demolished the 12 rooms. The said representative in fact used the map of the joint site Inspection Report dated 06.10.2016. The said submission demonstrates the approach of the issuer of the Show-cause notice and reflects a complete bias against the Appellant.
(vii) Respondent No.1 failed to defend the errors pointed out in the site Inspection Report dated 13.01.2020. The Appellant in detail demonstrated how by using the map/plan used for carrying out demolition on 24.07.2019 and using the same map/plan in the site Inspection held on 13.01.2020, with the same field surveyor -Respondent No.1 identified properties on both the occasions and arrived at different findings.
(viii) Further, it is mentioned that using the sketch map dated 06.10.2016, the field surveyors identified 12 out of 18 rooms ordered to be demolished on 24.07.2019 and stated that the map was insufficient to identify the remaining 06 rooms, and using the exact same map dated 06.10.2016, the Expert Member on 13.01.2020 comes to different findings and conclusions. These contentions of the Appellant raised before Respondent No.1 have been brushed aside lightly and hence the impugned order deserves to be quashed. Further, it is mentioned that Respondent No.1 overlooked the glaring errors in the site Inspection Report dated 13.01.2020 as he failed to appreciate that no conclusion/inferences could be drawn Page 18 of 57 by comparison with the sketch of 06.10.2016. The Appellant has demonstrated in detail the infirmity in the sketch map.
(ix) It is further mentioned that the joint site inspection conducted on 06.10.2006 and the sketch therein was drawn pursuant to the complaint of waste discharge by one of the neighbours of the Appellant. It had nothing to do with CRZ violations and was so addressed to the Goa State PCB. The said sketch is not to scale, does not have any legends, does not have any measures, and also does not show any CRZ violations. The said inspection was conducted by the officers of Goa State PCB, Goa Tourism Department, and one member of Respondent No.1. A bare perusal of the joint Inspection Report dated 06.10.2016 will show that there is no whisper of any CRZ violations in the said property and it only pertains to the complaint of discharge of waste and the findings of the Report are primarily in those regards. It is also pertinent to note that the said Report dated 6.10.2016 only looked at some structures with respect to the complaint of waste disposal present on the property of the Appellant and it completely overlooked and excluded any other structures like the bar, the kitchen, staff room, toilets and also the residence of the Appellant, etc. which existed in the said property, from the purview of the Inspection as conducted on 06.10.2016 and therefore, the site Inspection conducted on 06.10.2016 and the Report and sketch drawn thereafter are also erroneous and misplaced.
(x) Further, it is mentioned that Respondent No.1 also failed to consider that the Report of Expert Member dated 13.01.2020 suffers from several logical fallacies, the main Page 19 of 57 being that absence of evidence is not evidence of absence. Merely because the joint site Inspection dated 06.10.2016 did not show certain structures as they existed on the date of inspection, the Expert Member, has taken those structures to be non-existent. The Expert Member has wrongly contended that only those structures as depicted in the sketch map of 2016, existed in 2016, and therefore on comparison with the sketch map of 2020, it has been erroneously concluded that any structure depicted in 2020, map and not depicted in 2016 is new and was constructed post October, 2016.
(xi) It is further submitted that in the Field Inspection Report the Expert Member refers to and relied upon the order of demolition passed by Respondent No.1 (Authority) in the year 2005. Such reliance and reference to the order of demolition passed in 2005 is grossly erroneous and is ignorance of the order of Hon'ble High Court in Writ Petition No.24 of 2007 dated 13.02.2007 by which the order of demolition passed in 2005 was withdrawn. Respondent No.1 failed to consider that the Expert Member was under the mistaken belief that the order of demolition passed in 2005 was reissued on 15.02.2012. The cost imposed of Rs.5Lakhs is without reasoning. Respondent No.1 has failed to take into consideration fundamental documents which establish that there existed structures in the said property prior to 1991 which was evident from the house tax, lighting tax receipts for house No.2225,7/13A, 7/13B, and house 7/13C, issued prior to 1991, permission dated 16.01.1987, electricity bills dated 17.11.1985, declaration dated 12.04.1990 and 20.9.1988, Ration Card issued for the year 1987,1988 and Page 20 of 57 1989, challan dated 12.12.1985, No objection from Mr. Luis Antonio Pires dated 27.12.1986, decree dated 11.11.2005, a letter from Panchayat dated 24.12.1988, the electricity bill of the year 1989, letter dated 27.04.1989 from the office of PWD for release of water connection, and a plan which is part of the decree passed in Spl.Civil Suit No.188/2004 by the Court of Ad Hoc Addl. District Judge, FTC at Mapusa dated 11.11.2005, which have been completely ignored by Respondent No.1 while passing the demolition order in question.
(xii) It is further mentioned in the Writ Petition 915 of 2018 filed by the Appellant before the Hon'ble Bombay High Court at Goa, the village Panchayat of Calangute filed a reply in which it is categorically stated that house No.2225,7/13A, 7/13B, and 7/13C, were registered with the Panchayat for the purpose of house tax since 1991 onwards. Therefore, it was incumbent upon Respondent No.1 to issue notice to the village Panchayat before passing any orders against the Appellant and to confirm the existence of such structures, hence, it is arbitarily held that 'nature of construction had changed at loco'. The conclusion of Respondent No.1 is based on surmises with no cogent evidence. Further, it is mentioned that in the light of the above-mentioned documents, it is unfathomable to conclude that structures existed prior to 1991 in the impugned property of the Appellant and it is glaringly arbitrary to order demolition of all the structures in the property of the Appellant. Hence, the said order needs to be quashed. The Appellant has further submitted that the structures on his property were residential and they were never used for commercial operations and the Page 21 of 57 Appellant, his family, and extended family members are residing in it. Lastly, it is submitted that by the impugned order Respondent No.1 comes to the conclusion that the 'Structure H' which earlier had 04 rooms and after demolition has 2 rooms left, are the structures which are pre-1991. Despite holding that there were 02 structures existing pre-1991, Respondent No.1 directed the demolition of all the structures which shows a lack of application of mind in passing the impugned order of complete demolition".
REPLY AFFIDAVIT OF RESPONDENT NO.2 DATED 03.05.2022
18. In the reply affidavit of Respondent No.2 dated 03.05.2022, it is submitted that the demolition order dated 15.02.2012 had first observed that there were 20 rooms at Survey No.242/1(Part), Sunset Cottages, Sunta Vaddo, Village-Calangute, Bardez, Goa (impugned property) out of which barring 2 rooms, there were no approvals for other 18 rooms for tourists/commercial purpose. Therefore, the said demolition order made it absolutely clear that the impugned property had in all 20 rooms on 15.02.2012, out of which approval was only for two rooms, hence, Respondent No.1 had not directed their demolition but had ordered the demolition of 18 illegal rooms. The said demolition order was challenged by the Appellant before the Hon'ble Bombay High Court at Goa in Writ Petition No.195 of 2012, which was dismissed on 22.03.2018. Thereafter, SLP (C) No. 13457-13458 of 2018, was filed by the Appellant before the Hon'ble Supreme Court challenging order dated 22.03.2018, which was dismissed and upheld the demolition order dated 15.02.2012 passed by Respondent No. 1. The Hon'ble Supreme Court directed Respondent No. 1 vide order dated 25.05.2018, to proceed on the basis of demolition order dated 15.02.2012, while keeping in mind efficacy of Resolution dated 20.02.2022 of Village Page 22 of 57 Panchayat. A Civil Appeal No.3735 of 2019 was also filed by the Appellant before the Supreme Court challenging the orders dated 03.04.2019 passed by this Tribunal, which was dismissed on 24.04.2019, and thus, the demolition order passed on 15.02.2012, and 24.08.2018 by Respondent No.1 directing demolition of 18 rooms out of 20 rooms remained upheld. It makes it clear that in the year 2012 there were 20 rooms in existence in the impugned property.
19. Subsequently, on 24.07.2019 representative of Respondent No.1 (GCZMA) along with Talathi and Executive Magistrate, Calangute prepared Panchnama of demolition of 18 rooms in which Authorities claim that 12 rooms had been demolished out of 18, however, in reality, 4 illegal rooms only had been demolished during Panchnama on 24.07.2019. Being aggrieved by non-execution of demolition orders dated 15.02.2012 and 24.08.2018, Respondent No.2 filed Execution Application No.13/2019 before this Tribunal, wherein Respondent No.1 was directed vide orders dated 19.12.2019 and 15.01.2020 to file Action Taken Report (ATR) in terms of demolition order dated 03.04.2018. In compliance, Respondent No.1 filed an affidavit on 04.02.2020 before this Tribunal annexing a copy of the Field Inspection Report dated 13.01.2020 conducted by Respondent No.1 of Survey No.242/1(Part), to show that during Panchnama dated 24.07.2019 only 04 illegal rooms were demolished while 14 out of 18 illegal rooms were yet to be demolished from the impugned property. Further, in its Inspection Report dated 13.01.2020, relying upon the Inspection Report dated 06.10.2016 Respondent No.1 found that the Appellant had constructed additional 2 rooms at Structure-A, 3 rooms at Structure-B, 2 rooms at Structure-C, 2 rooms along with a bar at newly constructed Structure- D, 2 rooms at Structure-F, 1 room at Structure-G, 2 rooms at Structure-J, 2 rooms at Structure-K and a swimming pool at Survey No.242/1(Part). Thus, a total of 16 new rooms along with a swimming Page 23 of 57 pool were additionally constructed by the Appellant at the impugned property after the demolition order dated 15.02.2012. In the said Inspection Report, it was also found that adjoining to structure-H, a dotted line shows a structure as per the survey plan admeasuring about 25 sq.mtrs, however, the said structure was neither seen nor identified by the representatives of the Appellant on the location. Thus, Respondent No.1 found that on 13.01.2020, the 2 rooms existing prior to 1991, were demolished and rebuilt later on by the Appellant, and therefore the pre-existing rooms no longer existed at the impugned property. Further, it is mentioned that during the adjudication of EA No.13/2019, this Tribunal vide order dated 05.02.2020 had directed the Appellant and Respondent No.2 to appear before Respondent No.1 on 25.02.2020 to raise their objections and submissions to the Inspection Report dated 13.01.2020. The Appellant had been emboldened due to the delay in execution of the demolition order dated 15.02.2012 on 25.02.2020 in letter and spirit and challenged the demolition orders of Structure-A (6-rooms), Structure-H (2-rooms), and Structure-I (6- rooms). Apart from this, Respondent No.1 also found that the Inspection Report dated 13.01.2020 and 06.10.2016 conjunctively, revealed that the Appellant was 'rank violator' of the CRZ norms and decided to issue a Show-cause notice for additional structures, which form part of the impugned property in the present proceedings. Respondent No.1 issued demolition order on 16.03.2020, directing demolition of structures of Structure-A (6-Rooms), Structure-H, (2- rooms), Structure-I, (6 rooms), of the impugned property which was upheld by this Tribunal in Appeal No.46/2021, which came to be dismissed on 28.01.2021, and Civil Appeal No.736 of 2021 preferred by the Appellant before the Hon'ble Supreme Court against the said order of the Tribunal also came to be dismissed on 15.03.2021. These facts make it crystal clear that on 15.02.2012 the Authority/Respondent No.1 had found 20 rooms in existence in the impugned property out of Page 24 of 57 which barring 2 rooms, 18 were illegal under the CRZ violations, which remained upheld even up to the Hon'ble Supreme Court and has attained finality.
20. Further, it is submitted that the Appellant in utter disregard of law, had made construction at the impugned property after 2012, which has already been declared to be falling in NDZ of 200 mtrs from HTL in terms of CRZ Notification, 2011, which came to the knowledge of Respondent No.1 during Inspection Report dated 13.01.2020. It was in this backdrop of Notice dated 16.03.2020, the impugned demolition order dated 07.03.2022, has been passed directing demolition of all the constructions on the impugned property. In this backdrop, the Appellant firstly evaded demolition for 9 years but proceeded with undertaking constructions of additional rooms and swimming pool on the impugned property, therefore, the Appellant ought to be imposed with exemplary cost. Further, it is mentioned that being aggrieved due to delay on the part of Respondent No.1 in deciding the Show-cause notice dated 16.03.2020, the Respondent No.2 had approached this Tribunal by filing OA No.91/2021 and vide order dated 01.12.2021, the Tribunal found ex-facie that the Appellant was in total abdication of his legal responsibility, and was exploiting the illegal structures for commercial operations and an injunction order was passed against the Appellant, restraining him from exploiting the unauthorized structures for commercial exploitation. This Tribunal vide its order dated 18.01.2022, in O.A. No. 91 of 2021 found prima facie the structures in the impugned property to be illegal. The answering Respondent stays adjacent to the impugned property. Therefore, he prays for sealing the impugned property till the execution of the impugned demolition order, and additionally direct the Respondent No. 1 to conduct an inspection of the impugned property to ensure compliance of the orders dated 01.12.2021 and 18.01.2022 of this Tribunal.
Page 25 of 57
21. In pursuance of the Show-cause notice dated 16.03.2020, the Respondent No.1 conducted the proceedings. The Appellant filed his reply on 14.09.2020 before the Respondent No.1 and the answering Respondent No.2 had filed his written submissions on 23.09.2020, wherein immediate demolition of illegal construction was prayed. Respondent No.1 had given fair opportunity to the parties and has passed demolition order in accordance with law. REJOINDER AFFIDAVIT OF APPELLANT - AGAINST REPLY AFFIDAVIT OF R-2
22. In the rejoinder affidavit of the Appellant against the reply affidavit filed by Respondent No.2, it is stated that it is correct to say that the demolition order on 15.02.2012, ordered demolition of 18 rooms but it is denied that there existed only 20 rooms in the impugned property on 15.02.2012. Even during the hearing before the GCZMA/Respondent No.1, which culminated in the passing of the impugned demolition order, a request was made by the Appellant for site inspection and verification but the same was refused, saying that the same was not required at that stage. Therefore there was no site inspection ever conducted by GCZMA to determine and to come to the finding that there were only 20 rooms in the impugned property on 15.02.2012. In fact, GCZMA proceeded against 20 rooms out of the property of the Appellant and no other structures. He has annexed the survey plan of the year 2003, survey plan of 2005, sketch map attached dated 13.01.2020, enlarged and annotated map of the survey plan of 2004, submitted by Respondent No.2 (with their written submission before the Respondent No.1). It is correct to say that the order of Hon'ble Apex Court upheld demolition orders dated 15.02.2012 and 24.08.2018, but it is incorrect to say that these orders upheld existence of only 20 rooms at the impugned property. It is denied that 16 new rooms along with a swimming pool were additionally constructed by the Page 26 of 57 Appellant after the demolition order dated 15.02.2012. It is also denied that in the Inspection Report, it was found that adjoining to the Structure-H, a dotted line shows a structure as per the survey plan admeasuring 25 sq. mtrs., however, the said structure was neither seen nor identified by the representatives of the Appellant on the location. In fact, the said structure is shown by dotted line and has been existing since much prior to 1991 and has not been disturbed or altered or demolished in any manner. It is denied that Respondent No.1 found that on 13.01.2020, 2-rooms, existing prior to 1991, were demolished and rebuilt by the Appellant, therefore, the pre-existing rooms no longer existed on the impugned property. Other contentions made by Respondent No.2 have been denied by the Appellant and he has reiterated his own version as mentioned in the affidavit. It is further submitted that Respondent No.1 has erroneously concluded that the Appellant had undertaken additional illegal construction at the impugned property after passing of the demolition order dated 15.02.2012, and has erroneously relied upon the Report dated 13.01.2020. Respondent No.1 has not dealt with the documentary evidence extended by the Appellant to show that the construction on the impugned property existed prior 1991 and has casually brushed aside the same. Respondent No.1 has erroneously concluded that the plan submitted by the office of DSLR indicated only one small red dotted structure admeasuring 25 sq. mtrs. which existed on Survey No.242/1, however, at the time of inspection no such structure was found existing at the site. Respondent No.1 failed to realize that the said survey was conducted way back in 1980. The findings of Respondent No.1 that even though a small construction of 2 rooms admeasuring 25 mtrs. existed at the impugned property prior to 1991, during the inspection on 13.01.2020, it categorically found that no such structure existed therefore, the nature of construction changed at the loco, is only unfounded and biased and is based on surmises. Further, it is stated Page 27 of 57 that this Tribunal in Appeal No.46/2020 had dealt with the demolition order on 16.03.2020 and not the Inspection Report dated 13.01.2020, and hence to say that the said Inspection Report dated 13.01.2020 has attained finality up to the level of Hon'ble Supreme Court, is wrong. THE CONTENTS OF REPLY AFFIDAVIT OF RESPONDENT NO.1 RECEIVED ON 04.05.2022.
23. The contents reveal the same set of facts which have been narrated by Respondent No.2 and in addition to that, it is further stated in this affidavit that at the time of Execution Application (E.A.) No.13/2019, filed by Respondent No.2, this Tribunal had directed the GCZMA to file Action Taken Report (ATR), in deference to which the answering Respondent ordered a field inspection to be carried out by its Expert Members which was carried out on 13.01.2020 in presence of the Appellant and the original complainant. The Expert Member submitted his Report saying that the Appellant had constructed additional structures over and above the one, directed to be demolished in 2012, and the said Report is well exhaustive and draws the comparative analysis of violations of the past and present, new and old, taking into consideration the mapping carried out by the Directorate of Survey and Land Records (DSLR), plan and Reports from authorities etc. which have been annexed. After considering the said Report, a Show-cause notice dated 16.03.2020 was issued to the Appellant to demolish all offending structures mentioned therein, totaling 28 rooms plus plinth, plus a swimming pool. The said Inspection Report was followed by a forked decision of GCZMA, viz demolition order dated 16.03.2020 to demolish 18 rooms. (Hence merging the 2012 order and 16.03.2020 order of GCZMA) and the Show cause notice dated 16.03.2020. After several hearings, the impugned order of the demolition has been passed which has no irregularity and as on date not even 2 rooms saved by the GCZMA order of 2012, exist, therefore Page 28 of 57 everything standing on Survey No.242/1 should be demolished. The observation in 2020 site Inspection Report as referred in this context is relevant which states :
"Mapping plan submitted by the office of DSLR has indicated only one small red dotted structure admesuring 25 sq. mtrs. existed in Survey No.242/1 however at the time of inspection no such structure existed at the site."
24. Further, it is mentioned that the documents produced by the Appellant to prove that there existed a prior structure, with house tax receipts, light tax receipts, permission dated 16.01.1987 issued by the Village Panchayat, Calangute, electricity bills dated 17.11.1985, declaration dated 12.04.1990, 20.9.1988, Ration Card of 1987, 1988, Challan dated 12.12.1985 and NOC dated 27.12.1986, decree dated 11.11.2005, Panchayat letter dated 24.12.1988, the electricity bill of the year 1989, from the office of PWD, declaration of consent dated 13.11.1984 to build the cottages, are all of prior to 1991, but the nature of the construction has changed at loco. The Appellant did not produce any permission/NOC issued by the GCZMA or its predecessor GPCB to show that re-construction/construction was carried out with prior permission.
ANALYSIS :
25. Heard arguments of the learned Counsel for the parties and perused the record. After having gone through the above pleadings, it clearly transpired that in the property in question i.e. Survey No.242/1, the Appellant had raised constructions which according to the Respondent No.1 and 2 were in violation of CRZ norms, as no permission had been obtained from GCZMA for those constructions and that the appellant has failed to prove the said constructions to be of prior to 1991, thus, excluding the said property from the application of CRZ norms. Initial litigation in respect of the said Survey No.242/1 Page 29 of 57 related to the filing of Appeal No.24/2019, which was preferred against the demolition order dated 24.08.2018 passed by the GCZMA, whereby the GCZMA/Respondent No.1 had reaffirmed its earlier demolition order dated 15.02.2012, in respect of 18 structures in the disputed property.
This demolition has been finally concluded with the decision in EA No.13/2019, after long delay as the matter had travelled up to the Hon'ble Supreme Court, from where the said decision of demolition has been upheld and has been carried out also. But thereafter Respondent No.1 had issued a fresh notice to the Appellant dated 16.03.2020 in terms of the Field Inspection Report dated 13.01.2020 prepared by the Expert Member of GCZMA. The said Field Inspection Report dated 13.01.2020, is reproduced herein below for the sake of convenience:
"Field Inspection Report Sunset Cottages of Mr. Sylvester D*Souza in the survey number 242/1 (part) in Calangute- Baga.
13th January, 2020 The Member Secretary of the Goa Coastal Zone Management Authority ordered for a field inspection of the property named Sunset Cottages of Mr. Sylvester D*Souza in the survey number 242/1 (part) in Calangute- Baga. The undersigned expert member along with Mr. Yeshwant G. Bicholkar Field Surveyor (FS), GCZMA, Shri Mandar Fadte FS, DSLR, Shri Rajesh Harmalxar FS, DSLR, Mr. Dattaram N Kamat, Talathi, Calangute visited the site on 13" January, 2019 from 11:30 am onwards to conduct the inspection. Few Police Constables from Calangute Police Station also joined the team.
Adv. Ni1esh Takkekar on behalf of Ms. Nalini Da Rosa Fernandes, Adv. Karan Jayant, Adv. Dilesh Ashwekar and Mr. Damodar Kharbe, Manager of Sunset Cottages on behalf of Mr. Sylvester D'souza joined the team on the site.
Observations:
1. As per the mandate, the team went to the site at given time and carried out the inspection.
2. The presence of Adv, Nilesh Takkekar representing Ms, Nalini Da Rosa Fernandes was objected by the representatives of Mr. Sylvester D'Souza on the ground that he was not marked a copy of the inspection notice. However, the Expert member allowed Adv. Nilesh Takkekar to be part of the inspection team as a representative of Ms. Nalini Da Rosa Fernandes as she was marked a copy of the notice.
Page 30 of 57
3. I noticed one of the structures Marked L on the map was demolished on the 24th July, 2019 (As informed by the Manager of Sunset Cottages) having an area of 13.95/9.0 meters. However, the permanent cement and concrete plinth/foundation of the demolished structure along with debris can still be seen.
4. Mr. Dattaram N Kamat, Talathi, Calangute had visited the site for the inspection on 2nd January, 2020 wherein he has observed that a temporary shed was erected on the demolished site by Mr. Sylvester D'souza. The same has been Reported by him to his higher Authority (The Mamlatdar of Bardez, Mapusa Goa) vide letter number TAL/BAR/CAL/REP/CRZ/2020 dated 2nd January, 2020 (As obtained from Dy.Collector Mapusa on Watsap (Annexed as annexure I).
5. This indicates that Mr. Sylvester D'Souza has illegally erected a structure (temporary shed as mentioned by the Talathi) on the permanent plinth/foundation violating the demolition clause as seen in the photo.
6. The representatives of Mr. Sylvester D'souza were not in a position to show any documentary evidence issued by the Coastal Zone Management Authority granting permission to construct any of the structures existing in the said survey number. The team observed that there are total twelve structures (including the plinth/foundation of the demolished structure) number of structures existing at loco. The same has been identified and marked on the survey map by the Surveyors DSLR, Govt. of Goa. (Annexed as annexure 11).
7. The joint inspection carried out by the team comprising of representatives from Goa State Pollution Control Board, Tourism Dept. and GCZMA on 6.10.2016 identified five blocks comprising of 20 rooms being operated by Mr. Sylvester D'souza. In addition to this, the team also identified a Ground plus two a residence and owned by Elvira D' costa (Annexed as annexure III).
8. The representatives of Mr. Sylvester did not allow the team member to enter the rooms. Rooms have been counted based on the doors by Mr. Yeshwant Bicholkar. FS, GCZMA on 14th January, 2020. The details of structures along with number of rooms as of 13/14th January, 2020 are as follows:
Sr. Structure as on Structures as per Conclusion No. 13th /14th Joint Commi1tee January, 2020 as of 6th October 2016 1 Structure A Structure A The respondent Mr. consists of a however with six Sylvester D'Souza seems restaurant, a rooms to have reception with 8 Carried additional rooms (3+5 construction post-October, rooms) 2016 to join the restaurant and structure A as can be seen in the enclosed plan.Page 31 of 57 2
Structure B Not appearing (in) It appears that this seems consists of the Joint to have been constructed post- Ground plus two Inspection Report October, 2016 (G+2) consisting of three rooms 3 Structure C is Not appearing (in) It appears that this seems toilet structure the Joint to have been constructed consisting of two Inspection Report post October, 2016 FOOMS 4 Structure D is a Not appearing (in) It appears that this seems Bar with two the Joint to have been constructed rooms inside Inspection Report post-October, 2016 5 Structure E is G+2 structure It appears that this Ground Plus with 8 rooms. structure seems to have been Two (G+2) Ground floor erected post demolition order residence and 1st issued in the year 2005 and and 2nd floor 8 reissued on 15.02.2012 rooms 6 Structure F is Not appearing (in) It appears that this Ground structure the Joint structure seems to have been with two rooms Inspection Report erected post demolition order issued in the year 2005 and reissued on 15.02.2012 7 Structure G is Not appearing (in) It appears that this Ground structure the Joint structure seems to have with one room Inspection Report. been erected post demolition order issued in the year 2005 and reissued on 15.02.2012 8 Structure H Structure B with Exists as of October is a ground four rooms 2016 structure with four rooms 9 Structure I Structure D Exists as of October, ground structure with six rooms 2016. Since 12 rooms out of with six rooms 18 contained in the demolition order of 2005/2012 have been demolished in structure L this six rooms in structure as shown in the map enclosed to be demolished in order to comply with the demolition order issued In 2005/2012 10 Structure J 1s Not appearing (in) It appears that this a ground the Joint structure seems to have been structures with Inspection Report erected post demolition order two rooms issued in the year 2005 and reissued on 15.02.2012 11 Structure K Not appearing (in) It appears that this is a toilet the Joint structure seems to have been structure with Inspection Report erected post demolition order two rooms issued in the year 2005 and reissued on 15.02.2012 Page 32 of 57 12 Structure L is Structure C with During demolition carried a four rooms out in July 2019, it appears Plinth/foundatio that there were 12 rooms n of demolished existing on-site structure admeasuring about 126 Sq Meters.
13 Swimming as was not existing Seems to be new construction
shown in the during the post October, 2016.
legend in the map inspection
enclosed. conducted in
October, 2016.
10. Adjoining to the structure H, a dotted line shows a structure as per the survey plan admeasuring about 25 Sq meters. However, such structure was not seen nor identified by the representatives of Mr. Syslvester D'souza on loco.
11. Mr. Damodar Kharbe informed that Mr. Sylvester D'Souza owns the structure H and rest are owned by Agusta, Maria and Elvira D'costa, Mr. Kharbe was not sure of the ownership and every time was changing the names. As per the form I & XIV, the survey number on which these structures have been erected belongs to Mr. Sylvester D'Souza. (Annexure IV). Hence the submission made by Mr. Damodar Kharbe the structures other than H and L are not owned by Mr. Sylvester D'Souza is false.
12. The Expert Member repeatedly asked Mr. Damodar Kharbe, Adv. Karan Jayant, Adv. Dilesh Ashwekar the construction permission copy from the representatives of Mr. Sylvester for the structures marked, A, B, C, D, E, F G, H, I, J, K L, restaurant and the swimming pool. However, Mr. Damodar Kharbe failed to produce the permissions.
13. The Manager and both the Advocates representing Mr. Sylvester D'Souza refused to provide any legal documents issued by the Goa Coastal Zone Management Authority to 573 prove structures existing on the above survey number are legal. The same may be validated from the documents of GCZMA.
14. Photos taken during the inspection are enclosed. Conclusion: Therefore GCZMA may issue a show cause notice for the additional structures observed on 13/14 January as listed in the table above and direct the Dy. Collector to demolish structure I as indicated in the map enclosed having six rooms in order to comply with the demolition order 2005 and 2012".
26. This Report shows that in addition to the earlier demolition of 18 rooms in pursuance to the earlier proceedings cited above, 16 additional rooms were found constructed on the same property belonging to the Appellant, apart from one swimming pool, and it was proposed in conclusion that the GCZMA may issue a Show cause notice to the Appellant regarding additional structures. The impugned order of Page 33 of 57 Respondent No.1 dated 07.03.2022 appears to show that a fair opportunity of defence was given to the Appellant as well as Respondent No.2 to place their respective pleadings as well as evidence in support of their version and thereafter the impugned order was passed for demolition of all these structures in the property bearing No.242/1(Part). The relevant portion of the order in question is being reproduced herein below:
" The present matter arises from Show Cause Notice No. GCZMA /III03 /CAL /2693 dated 15.03.2020 issued by this Authority with respect additional structures identified in property bearing Survey No.242/1 (part) of revenue village Calangute situated at Santawaddo locality, Calangute, Bardez.
The Authority noted that after the discussion and deliberation in the 221st Authority meeting held on 2502/2020 had inter alia decided to issue said show case notice as to why direction of demolition the structure and penalty of Rs.5,00,000/ should not be imposed on the Respondents.
Succinctly, the case of the Complainant can be summarized as under:-
The Authority after conducting detailed inquiry had issued demolition order Dated 15/02/2021 for 18 rooms in Sy.no.242/1 (part) Sauntawaddo, Calangute, Bardez. The Authority in the said order inter alia noted that our of 20 room 18 room were without necessary approval from the Authority.
The said order dated 15/022012 was challenged by the Respondents before the Hon'ble High Court vide W Petition No.915/2012. The Hon'ble High Court vide order dated 22/03/2018 held that the petition was tenable, and remedy of appeal was available before the Hon'ble National Green Tribunal (NGET). The said Order dated 22/03/2018 was challenged by the Respondent in a Civil Review Application bearing no.
08/2016. The said CRA no. 08/2018 came to be dismissed by the Hon'ble High Court vide order dated 13/04/2018. The order dated 22/03/2018 in Writ Petition no. 195/2012 and 13/04/2015 in CRA no.08/2018 were challenged before the Hon'ble Supreme Court in SLP no.13457-13458/2018 The Hon'ble Supreme Court vide order dated 23/032016 was not inclined to interfere with orders however directed the Authority to consider the efficacy of resolution of Village Panchayat dated 20/02/2012 purporting to regulate the legal construction/ violation of the Respondent.
Page 34 of 57 This Authority then considered the efficacy of resolution of the Village Panchayat dated 20/02/2012 and passed an order dated 24/06/2018 ré-affirming its order dated 15/02/2012. The said order dated 24/06/2018 was challenged by the Respondent in Writ Petition no. 915/2018. The Hon'ble High Court vide order dated 29/11/2018 was pleased to dismiss the said petition as the Respondent had efficacious statutory remedy before the Hon'ble NGT.
The Respondent filed an appeal bearing no. 24/2019 before the Hon'ble NGT. The Hon'ble Tribunal, vide order dated 03/04/2019, dismissed the said Appeal. A civil appeal no 3733/2019 was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 22/04/2019 dismissed the said civil appeal.
The Complement filed an Execution Application no. 13/2019 before the Hon'ble NGT inter alia seeking execution of demolition order of the Authority which had attained finality. The Authority, in compliance to the said matter, by way of affidavit, submitted site Inspection Report dated 13/01/2020. The site Inspection Report of Expert Member CCZMA relied upon Joint Site Inspection Report dated 06/10/2016. The Complainant relied upon the findings of the said Report dated 13/01/2020. On 13/01/2020, the Expert Member of this Authority along with other officials conducted the site inspection and noted the structures along with the rooms that existing at the said Property as on 13-14.01.2020. It was during the filed Inspection13.01.2020 that it observed that the violator had constructed additional rooms than those that were noted in the demolition order dated 15/02/2012 and inspection dated 06/10/2016.
The complainant approached the Hon'ble NGT in OA No. 91 of 2021. The Hon'ble vide its order dated 01/12/2021 in O A No 91 of 2021, restrained the Respondent from exploiting the unauthorized structures for commercial exploitation. On the other hand, the Respondent's case can be summarized as under:-
Respondent's case is that the show cause notice itself stands vitiated by unfairness and bias, which in turn defeats the very purpose of its issuance.
The Respondent has submitted that the Member Secretary of GCZMA (Predecessor) was biased. The Respondent stated that the Member Secretary of GCZM (Predecessor) has filed contradictory affidavit in Execution Application no 13/2019 before the Hon'ble NGT and filed affidavit of opposing the grant of interim relief before the Hon'ble High Court in Writ Petition bearing no (Stamp no). 1033/2020.
Page 35 of 57 The Report of 13/01/2020 prepared by the Expert Member GCZMA is erroneous and arbitrary. The Respondent submitted that there are different findings by same field surveyors on different occasions. The Respondent submitted that the Expert Member's Report has logical fallacies and errors in comparison:
The Respondent submitted that the sketch map dated 06/10/2006 cannot be relied upon by the Authority. The Respondent further relied upon certain documents issued by other authorities prior to year 1991.
"In view of the rival contentions, the following Issues crystallize for determination of the matter, namely;
I. Whether the show cause notice dated 16/03/2020 is vitiated by unfairness and bias? and, II. Whether the offending structures in property bearing Survey No. 24211 (part), Sauntawaddo, Calangute, Bardez, Goa more existing prior to 19/02/1991?
Issue no. I:
The thrust of the respondent's, submissions is that the Show Cause Notice dated I6/0372020 stood vitiated by unfairness and bias. In the present case, the Respondent was issued demolition order dated 15.02.2012 for demolition of 18 rooms on the said property. The said order was upheld by the Hon'ble Apex Court not once, but thrice. The Respondent has deceived the authorities and protracted the environmental violation for nine years as the offending 18 rooms could only be demolished in 2021. In the Inspection Report of 13.01.2020, it was found that merely because there was delay in execution of demolition order dated 13.01.2020, the Respondent had been emboldened to undertake new constriction of additional rooms and a swimming pool.
Thus, this Authority in its minutes of the meeting dated 25/02/3020 had found the Respondent to be a rank violator who had hoodwinked the authorities by raising technical issues.
Lastly, the Show cause notice dated 16/03/2020 also forms a part of the OA No. 91 of J02l before the Hon'ble NGT wherein the Hon'ble NGT has prima facie found the Respondent to be in total abdication of law, and therefore the Hon'bie NGT vide its orders dated 01/I2/2021 and 18/01/2022 was pleased to stay commercial operations of the Respondent.
The Authority noted that the present show cause notice dated 16/0372020 was issued based on due discussion and deliberation in the 221st GCZMA meeting held on 25/02/2020. The Authority noted that in the said 22Ist meeting minutes, the Authority had arrived at two decisions: one being demolition of structures which were part of original order dated.15/02/2021, Page 36 of 57 and the other being issuance of show cause notice regarding additional structures built by the Respondent.
It is clear from the minutes of 221st GCZMA meeting held on 25/02/2020 that the Authority acted independently in respect of additional structures erected by the Respondent. The said Show Cause Notice dated 16/03/2020 was based on findings given by the Expert Member GCZMA in his Report dated 13/01/2020. The said Report dated 13/01/2020 is based on factual findings at site along with map generated by the DSLR clearly indicates the situation at loco. The Respondent has been given reasonable opportunity to file reply to show cause notice and file documents in support of his case. The Respondent was also given fair opportunity to hear through to submit orally as well as written submissions. The Authority thus complied with principles of natural justice. As such, the Authority did not find any merit in submissions of the Respondent that the Show Cause Notice dated 16/0,172020 was vitiated by unfairness and bias.
The Authority considered the Judgment of Hon'ble Apex Court in Oryx Fisheries Pvt Ltd vs. Union of India (2010) 13 SCC 427 relied by the Respondent and concluded that the facts of the case and law laid down in the judgment do not apply to this ease. The Show Cause Notice clearly spelt out the offending structures and did not in any way conclude or prejudge the guilt of the respondent against the sane.
Next, the Respondent has alleged bias on part of the Member Secretary (predecessor) of the Authority who issued the Show Cause Notice. The Authority noted that the Member Secretary of the Authority has an important role to play, The Authority which is notified by the MoEF & CC acts through meeting and decisions are arrived unanimously after due discussion and deliberation amongst the members. The Authority is a body consisting of Chairman, Member Secretary along with Expert Members and other ex-officio Members from various Departments. The meetings of the Authority are presided by the Secretary Environment who is the Chairman of Authority along with other members of the body. The secretariat, administration and litigation of the Authority is under the watchful eye of Member Secretary of the Authority. The Member Secretary of Authority is spokesperson of the Authority and is required to communicate and defend the decisions taken by the Authority. The affidavits of the Member Secretary of Authority are drafted based upon instructions/documents on record and legal advice by allotted Government counsels in the matter. The Authority noted there is nothing contrary in the affidavits filed by Member Secretary of the Authority (predecessor) as they are based on records before the Authority. The Member Secretary of the Authority is entitled to take all the grounds available in law to defend the litigation filed against the decision of the Authority in a Court of law.Page 37 of 57
The Authority did not find any merit in submissions of the Respondent in this regard and answered the issue in the negative.
Issue no. II:
The Respondent has taken the plea that the structures that are subject matter of the Show Chance Notice dated 16/03/2020 have always existed from the beginning and certainly existed prior to 1991.
The Authority noted that it is an undisputed fact that the structures which are subject matter of the show cause notice dated 16/03/2020 are within No Development Zone in CRZ III Zone of Calangute village. The CRZ Notification clearly states the area up to 200m from the HTL is be earmarked as 'No Development Zone'. No constriction shall be permitted in this zone except for repairs of existing authorized strictures not exceeding existing FBI, existing plinth area and existing density.
As far as affidavit dated 26/11/2018 of the Village Panchayat of Calangute is concerned, the Authority was of the view the was only filed to justify the regularization of structures and under Goa Panchayat Raj Act 1994. The statement of the Panchayat has no bearing on the present matter as only this Authority has the power to consider construction/reconstruction/ regularization other permissible activity in CRZ area {No Development Zone) under the CRZ Notification.
As far as submission of the Respondent that there are errors in the Report dated 13/01/2020 prepared by Expert Member GCZMA is concerned, the Authority was of the view that said Report gives correct findings and clearly depicts the factual situation at loco.
Insofar as the Respondent's argument that there are different findings by same field surveyors on different occasions. is concerned, the Authority is of the view that the role of field surveyor is only to assist the Expert Member of GCZMA during a site inspection. The Authority noted 'on the occasion of site inspection the structures were only mapped by the field surveyor who have submitted their map which was part of the Report dated 13/01/2020. The findings are only given by the Expert member of GCZMA in said Report dated 13/01/2020. The inability to identify the rooms expressed by the same field surveyor at the time execution of demolition on 24/07/2019, the same cannot be construed as a contrary finding and conclusion.
With respect to the contention of the Respondent that the sketch /map dated 06/10/2006 cannot be relied upon, the Authority was of the view that the sketch was prepared in discharge of the statutory duties pursuant to site joint site inspection and cannot be overlooked. Admittedly a member of the Authority was part of the said joint site inspection which was arising from complaint filed for waste discharge being examined by Goa State Pollution Page 38 of 57 Control Board Further, the Respondent also admits that said Report dated 06/10/2006 was never challenged or findings challenged in court of law.
As far as the contention of the Respondent that there are errors in the Inspection Report about demolition order of year 2005 is concerned, the Authority was of the view that the same only to indicate that there was an earlier demolition order of the year 2005. Be that as it nay, the status of the demolition order of the year 2005 is a matter of record and cannot be left to any inference.
The Authority observed that there are no logical fallacies or inconsistencies in the Report dated 13/01/2020 submitted by the Expert Member GCZMA. The decree dated 11/1I/2005 along with Plan submitted by Respondent is relied upon however the same between inter se private parties. The Authority noted it is not party to the said decree and plan. On perusal of the decree and plan, it is seen that the said the suit was filed against the present Respondent for permanent injunction and mandatory injunction. The plan is only prepared to demarcate the property between the parties. The said decree is also a consent decree. The Authority hence rejected the submission that the decree dated 11/11/2005 along with Plan submitted by Respondent gave the correct factual position at loco. The Report dated 06/10/2006 1s correctly relied upon by the Expert Member in his Report dated 13/0I/2020.
The Respondent has relied upon house tax receipts, light tax receipts, permission dated 16/01/1987 armed by Village Panchayat of Calangute, electricity bills dated 17/11/1985, declaration dated 12/04/1990, 20/09/1988, ration card of the year 1987, 1988, challan dated 12/12/1985, NOC dated 27/12/1986, decree dated 11/11/2005, panchayat letter dated 24/12/1988, electricity bill of the year l989, letter dated 27/04/1989 from of office of PWD, declaration of consent dated 13/11/1984 to build cottage.
The Authority noted that although the Respondent has produced the abovementioned documents which were prior to 1991, however the nature of construction has changed at loco. The Authority observed that the said documents produced by the Respondents cannot justify the structures existing at loco. The Expert Member in his Report doted 13/01/2020 has clearly brought out nature of constriction in property. The mapping plan submitted by office of DSLR has indicated only one small red dotted stricture admeasuring 25 sq. mts. existed in Sy no. 242/1 however at time of inspection no such stricture existed at site. The Respondent has not produced any permission NOC issued by this Authority or its predecessor GSCCE to show that reconstruction/constriction was carried with prior permission. The Respondent has failed to produce any approved plan from any licensing Authority. The Respondent's structures are within the No Development Zone only reconstruction is permissible on Page 39 of 57 existing plinth of authorized structure after 19/02/1991. The Respondents have blatantly and clearly violated CRZ norms, having carried out construction of the said structures within the No Development Zone of CRZ III, Calangute village.
The Authority noted that in the demolition order dated 15/02/2012, it hue been categorically mentioned that two rooms were existing prior to 1991. In the earlier demolition order dated 16/03/2020 directing demolition of 14 rooms, Mo rooms were to be demolished from Structure "H". The Inspection Report dated 13/01/2020 discloses that four rooms are existing in Structure "H". However, no new construction is found and therefore after demolishing two rooms from said Structure "H", the two remaining rooms is Structure "H" are existing pre-1991. This fact is further corroborated from the D5LR plan of 2020 that shows two pre-existing rooms were in Structure "H".
The sum and substance of the foregoing discussion is that the Respondents have no evidence at all to prove that the offending structures were in existence prior to 19/02/1991. In the present case, the Respondents had to prove through documentary evidence that the strictures were in existence prior to 1991, moreover, the one small red dotted structure admeasuring about 25 sq. metres and shown in survey plan ceased to exist on site.
The Respondent has failed to discharge the burden. Accordingly, this issue is also answered in the negative.
In view of the afore stated observations and findings, the Authority decided to confirm the Show Cause Notice dated 16/03/2020 and issue directions to the Respondents under 5ec. 5 of the Environment Protection Act to demolish all the structures that are subject matter of the said Show cause notice and identified in the DSLR plan in property bearing Survey No. 242/1 (part), Sauntawaddo, Calangute, Bardez Goa and restore the land to its original condition. Further, the Authority decided to impose Rs. 5,00,000/- (Rupees Five Lakh only) as penalty upon the Respondents as punitive costs for environmental violations by the Respondents. "
27. From the above it is clear that earlier Show cause notice dated 29.09.2005 was issued to the Appellant by Respondent No.1- Authority and after giving opportunity of hearing to the complainant/Respondent No.2 as well as the appellant, the earlier order of 15/02/2012 was passed directing demolition of 18 rooms used for commercial purposes by the Appellant in the property in question. Against the said demolition order a long litigation was resorted to by the Appellant, initially before the Bombay High Page 40 of 57 Court at Goa thereafter before NGT and matter also travelled to the Hon'ble Supreme Court, and when the Appellant lost from all these forums, the Execution Application (EA) was filed, which was also decided and ultimately the demolition of 18 rooms was made with the aid of Demolition Squad and initial round of litigation came to an end. But at the time of giving effect to demolition it came to notice that there were additional constructions raised by the Appellant on the said property including a swimming pool which is unauthorized, therefore a Show cause notice dated 16/03/2020 was issued to the Appellant asking him to show cause as to why all the additional offending structures, i.e. swimming pool, Structure A, 2 rooms; Structure B consisting of Ground plus two (G+2) i.e. consisting of 3 rooms; Structure C toilet structure consisting of 2 rooms; Structure D a Bar with two rooms inside; Structure E Ground Plus 2 (G+2 having residence on the ground floor and 4 rooms on each upper floor total 8 rooms); Structure F ground structure with 2 rooms; Structure G ground structure with 1 room; Structure H a ground structure with 4 rooms; Structure I ground structure with 6 rooms; Structure J ground structure with 2 rooms; Structure K a toilet structure with 2 rooms; Structure L a Plinth/foundation of demolished structure, admeasuring about 126 sq. mtrs. that has been constructed by the Appellant post 06/10/2016 in the property bearing Survey No.242/1-B of village Calngute, Bardez, Goa, be not ordered to be demolished and also punitive cost for damage to the environmental violations on the basis of 'Polluter Pays Principle', be not imposed. It is after giving opportunity of hearing to both the complainant/Respondent No.2 as well as the Appellant that the impugned order dated 07.03.2022 has been passed by Respondent No.1, ordering demolition of all these structures in the property Page 41 of 57 bearing Survey No.242/1 of Calangute, village Bardez, Goa within a period of 30 days.
28. Mr. Ameet Kumar Deshpande, learned Senior Counsel for the Appellant has drawn attention to page 76 of the paper book, which is a document called 'declaration of consent' executed by Shri. Luis Antonio Jose Sarto Pires (earlier landlord of the property in question) allowing the Appellant to build structures on his cottage in the area of 1550 sq. mtrs. on Survey plot No.242/1. Then he drew attention to page No.137 of the paper book, which is demolition order dated 15.02.2012, passed by GCZMA, directing the Appellant to remove all the 18 rooms used for commercial purpose which were found to have been constructed in violation of provisions of CRZ Notifications amended from time to time. In the said order at page 140 of the paper book it was pointed out that the GCZMA had observed that there were 20 rooms in structures in question, used for touristic/commercial purpose. Barring 02 rooms, there were no approvals for other 18 rooms for tourist/commercial purpose. From the documents submitted, it was found that a structure did exist prior to 1991. However the same appears to have been extended from time to time with no approvals. Thereafter he has drawn attention to page No.96 of the paper book which is a show cause notice dated 01.04.2002, issued by GCZMA, in respect to the same property and it was pointed out that there was no mention of name of the property/structures regarding which he was supposed to show-cause. Then he drew attention to page no.79 of the paper book which is 'no objection' granted by the previous owner to the Appellant for building of the rooms and for water tank in the said property which is dated 27.12.1986. Thereafter, he drew attention to page No.80 of the paper book which is a declaration by the earlier owner that he had Page 42 of 57 no objection to transfer the house tax of House No.2225, water connection and electricity connection to the said house dated 20/09/1988 in the name of the Appellant. Thereafter, he drew attention to page No.81 which is a letter issued by the Sarpanch of the village Calangute dated 16.01.1987 granting permission to the Appellant to repair and renovate the wall of the store room bearing House No.2225. Then the Appellant drew attention to the page No.82 of the paper book which is a letter addressed to the Appellant issued by the Sarpanch of village Calangute dated 24.12.1988 granting 'no objection' to the Appellant for accommodating tourist in 2 rooms of the house property No.2225. He also drew attention to the page Nos.88 and 89 of the paper book which are receipts dated 17.11.1985 and 12.12.1985 in respect of the same house property No.2225 and based on these documents it was vehemently argued that they prove that there were 2 rooms in existence which were of prior to the year 1991 and were not falling under the CRZ norms and yet in the present show cause notice the Respondent No.1 (GCZMA) has illegally ordered demolition of the entire structure situated on Survey No.242/1. All these documentary evidences which were extended before the Respondent No.1/Authority were lightly ignored without any justifiable reasons.
29. As against this, the learned Counsel for Respondent No.2 has argued that these documentary evidences cannot be considered again because when the demolition order dated 15.02.2012 was passed all these documentary evidences had been taken into consideration right up to the level of Hon'ble Supreme Court and that order has become final.
30. We find force in the arguments of learned Counsel for Respondent No.2 because these evidences which have been already Page 43 of 57 considered once by this Tribunal as well as the higher forums and the demolition order of 18 rooms, on the said property has already been finalized and concluded, therefore to rely on the same documents again cannot be permitted to the Appellant under law.
31. Thereafter learned Counsel for the Appellant has drawn attention to the paper No.272 of the paper book which is joint Inspection Report dated 06.10.2016 carried out at the direction of the Member Secretary along with Tourism Department and GCZMA department, of Unit Sunset Cottages. It shows that it consists of 2 member of State PCB, 2 members of Tourism department and 1 member of GCZMA
32. For the sake of convenience, observations made in this Report are reproduced herein below:
"Observations :
The unit was in operation at the time of inspection. The unit has applied for consent to operate from Board..
The unit has blocks within the premises. Block, B, C & D are ground based structures and block E is G+2 based structures and Block E is G+2 structures.
Block A has 6 rooms, Block B has 4 rooms, Block C has 4 rooms and Block D has 6 rooms. Total sums up to 20 rooms. (Refer Fig I below).Whereas Block F, ground floor is the owner of Mr.Dsouza's residence and first floor & second floo of the Block E has total 8 rooms.
As informed by Mr. Dsouza, the unit operates on 20 rooms i.e. Block A to D and Block E additional 8 rooms belongs to Mrs. Elvira D'costs and not part of the unit Sunset Cottages. No records produced for the same.
Mr Dsouza also informed that, Mrs. Elvira Dcosta is in process of applying consent from tourism and Board for 8 room's guest house.
The unit also has restaurant with seating capacity 30 nos.
As per CPHEO0 norms the water consumption (for 20 rooms & restaurant) is - 9.3 KLD and the waste water generated is - 7.4 KLD is diverted into septic tank & Soak pit.
The unit has DG set of 82.5 Kva with stack height of- 4 meters.Page 44 of 57
The solid waste generated is collected by the Panchayat.
No discharge was observed at the time of inspection on this unit".
33. Learned Counsel for Appellant drew attention to 4th point in the observation. It is recorded that unit operates on 20 rooms i.e. Block A to D and Block E of additional 8 rooms belongs to Mrs. Elvira D'Costa and which is not part of the unit Sunset Cottages. No records were produced for the same. Then learned Counsel has again drawn our attention to page-40 of the paper book which is part of the order of GCZMA, regarding that the GCZMA Members after perusing the records observed that there were 20 rooms in the structures, being used for tourist/commercial purpose. From the documents submitted, it were 20 rooms for the structures, used for touristic/commercial purpose. Barring 02 rooms, there were no approvals for other 18 rooms for tourist/commercial purpose. From the documents submitted it was found that a structure did exist prior to 1991, it appears to have been extended time to time. Having drawn attention to this it was argued by him that there was no map showing the said construction, hence there is ambiguity in the present case as to which 18 rooms have been demolished and 2 rooms were left to be demolished. Therefore, it is apparent that 2 rooms existed on the said property which were of the year prior to 1991 and could not have been ordered to be demolished. Thereafter, learned Counsel for the Appellant drew attention to page-276 of the paper book which is part of Field Inspection Report of the property in question at the direction of GCZMA by an Expert Member along with field surveyor of DSLR, who visited the site on 13.01.2019 in presence of the Appellant, wherein following observations have been made:
" Observations:
1. As per the mandate, the team went to the site at given time Page 45 of 57 and carried out the inspection.
2. The presence of Adv, Nilesh Takkekar representing Ms, Nalini Da Rosa Fernandes was objected by the representatives of Mr. Sylvester D'Souza on the ground that he was not marked a copy of the Inspectionnotice. However, the Expert member allowed Adv. Nilesh Takkekar to be part of the inspection team as a representative of Ms. Nalini Da Rosa Fernandes as she was marked a copy of the notice.
3. I noticed one of the structures Marked L on the map was demolished on the 24th July, 2019 (As informed by the Manager of Sunset Cottages) having an area of 13.95/9.0 meters.
However, the permanent cement and concrete plinth/foundation of the demolished structure along with debris can still be seen.
4. Mr. Dattaram N Kamat, Talathi, Calangute had visited the site for the inspection on 2nd January, 2020 wherein he has observed that a temporary shed was erected on the demolished site by Mr. Sylvester D'souza. The same has been Reported by him to his higher Authority (The Mamlatdar of Bardez, Mapusa Goa) vide letter number TAL/BAR/CAL/REP/CRZ/2020 dated 2nd January, 2020 (As obtained from Dy.Collector Mapusa on Watsap (Annexed as annexure I).
5. This indicates that Mr. Sylvester D'Souza has illegally erected a structure (temporary shed as mentioned by the Talathi) on the permanent plinth/foundation violating the demolition clause as seen in the photo.
6. The representatives of Mr. Sylvester D'souza were not in a position to show any documentary evidence issued by the Coastal Zone Management Authority granting permission to construct any of the structures existing in the said survey number. The team observed that there are total twelve structures (including the plinth/foundation of the demolished structure) number of structures existing at loco. The same has been identified and marked on the survey map by the Surveyors DSLR, Govt. of Goa. (Annexed as annexure 11).
7. The joint inspection carried out by the team comprising of representatives from Goa State Pollution Control Board, Tourism Dept. and GCZMA on 6.10.2016 identified five blocks comprising of 20 rooms being operated by Mr. Sylvester D'souza. In addition to this, the team also identified a Ground plus two a residence and owned by Elvira D' costa (Annexed as annexure III).
8. The representatives of Mr. Sylvester did not allow the team member to enter the rooms. Rooms have been counted based on the doors by Mr. Yeshwant Bicholkar. FS, GCZMA on 14th January, 2020. The details of structures along with number of rooms as of 13/14th January, 2020 are as follows: Page 46 of 57
Sr. Structure as on Structures as per Conclusion No. 13th /14th Joint Commi1tee January, 2020 as of 6th October 2016 1 Structure A Structure A The respondent Mr. consists of a however with six Sylvester D'Souza seems restaurant, a rooms to have reception with 8 Carried additional rooms (3+5 construction post-October, rooms) 2016 to join the restaurant and structure A as can be seen in the enclosed plan.2
Structure B Not appearing (in) It appears that this seems consists of the Joint to have been constructed post- Ground plus two Inspection Report October, 2016 (G+2) consisting of three rooms 3 Structure C is Not appearing (in) It appears that this seems toilet structure the Joint to have been constructed consisting of two Inspection Report post October, 2016 FOOMS 4 Structure D is a Not appearing (in) It appears that this seems Bar with two the Joint to have been constructed rooms inside Inspection Report post-October, 2016 5 Structure E is G+2 structure It appears that this Ground Plus with 8 rooms. structure seems to have been Two (G+2) Ground floor erected post demolition order residence and 1st issued in the year 2005 and and 2nd floor 8 reissued on 15.02.2012 rooms 6 Structure F is Not appearing (in) It appears that this Ground structure the Joint structure seems to have been with two rooms Inspection Report erected post demolition order issued in the year 2005 and reissued on 15.02.2012 7 Structure G is Not appearing (in) It appears that this Ground structure the Joint structure seems to have with one room Inspection Report. been erected post demolition order issued in the year 2005 and reissued on 15.02.2012 8 Structure H Structure B with Exists as of October is a ground four rooms 2016 structure with four rooms 9 Structure I Structure D Exists as of October, ground structure with six rooms 2016. Since 12 rooms out of with six rooms 18 contained in the demolition order of 2005/2012 have been demolished in structure L this six rooms in structure as shown in the map enclosed to be demolished in order to comply with the demolition order issued In 2005/2012 Page 47 of 57 10 Structure J 1s Not appearing (in) It appears that this a ground the Joint structure seems to have been structures with Inspection Report erected post demolition order two rooms issued in the year 2005 and reissued on 15.02.2012 11 Structure K Not appearing (in) It appears that this is a toilet the Joint structure seems to have been structure with Inspection Report erected post demolition order two rooms issued in the year 2005 and reissued on 15.02.2012 12 Structure L is Structure C with During demolition carried a four out in July 2019, it appears Plinth/foundatio rooms that there were 12 rooms n of demolished existing on-site structure admeasuring about 126 Sq Meters.
13 Swimming pool as Was not existing Seems to be new construction
shown in the during the post October, 2016.
legend in the map inspection
enclosed conducted in
October, 2016.
1
0. Adjoining to the structure H, a dotted line shows a structure as per the survey plan admeasuring about 25 Sq meters. However, such structure was not seen nor identified by the representatives of Mr. Syslvester D'souza on loco.
11. Mr. Damodar Kharbe informed that Mr. Sylvester D'Souza owns the structure H and rest are owned by Agusta, Maria and Elvira D'costa, Mr. Kharbe was not sure of the ownership and every time was changing the names. As per the form I & XIV, the survey number on which these structures have been erected belongs to Mr. Sylvester D'Souza. (Annexure IV). Hence the submission made by Mr. Damodar Kharbe the structures other than H and L are not owned by Mr. Sylvester D'Souza is false.
12. The Expert Member repeatedly asked Mr. Damodar Kharbe, Adv. Karan Jayant, Adv. Dilesh Ashwekar the construction permission copy from the representatives of Mr. Sylvester for the structures marked, A, B, C, D, E, F G, H, I, J, K L, restaurant and the swimming pool. However, Mr. Damodar Kharbe failed to produce the permissions.
13. The Manager and both the Advocates representing Mr. Sylvester D'Souza refused to provide any legal documents issued by the Goa Coastal Zone Management Authority to 573 prove structures existing on the above survey number are legal. The same may be validated from the documents of GCZMA.
14. Photos taken during the inspection are enclosed. Conclusion: Therefore GCZMA may issue a show cause notice for the additional structures observed on 13/14 January as listed in the table above and direct the Dy. Collector to demolish structure I as indicated in the map enclosed having six rooms in order to comply with the demolition order 2005 and 2012". Page 48 of 57
34. Having pointed out above, it is argued by the learned Counsel for the Appellant that a wrong comparison has been made of the structures existing on the property in question as on 13- 14.01.2020 and 06.10.2016 and on the basis of this wrong comparison, no such findings could have been given as given in column No.4 of the conclusion at Sr. No.1, that the Appellant seems to have carried out additional construction post-2016 to join restaurant and structure-A as can be seen in the enclosed plan. Further, it was pointed out by him that there is huge discrepancy with respect to the referring to the offending structures, some times as structure, some times as block and this non-clarity led to complete chaos and would amount to not determining the offending property with accuracy and hence no demolition order could have been passed when there was no clarity with respect to offending property.
35. This argument has been vehemently refuted from the site of Respondent No.2 and it has been argued that in the Inspection Report dated 06.10.2016, observation at point-4 clearly indicates that the Appellant's property consists of 20 rooms i.e. block A to D and that in the subsequent Inspectiondated 13.01.2020, there is break up given of structures A to D, which according to him would be nothing but block A, B,C, and D referred to in earlier Report dated 06.10.2016 and in structure-A, on 13-14/01/2020, they had found 8 rooms while in October 6, 2016 there were existing only 6 rooms in that structure, which shows that 2 rooms were additionally constructed by the Appellant post-October, 2016 inspection without any valid permission from any competent Authority, as no permission has been shown to Respondent No.1 Authority. Similarly, with respect to structure B,C and D, 3,2 and 2 additional rooms are found to have been constructed post- Page 49 of 57 October, 2016. At Sr. No.6 in table of Field Inspection Report dated 13.01.2020 structure-F on 13-14/01/2020 shows that there is ground structure with 2 rooms which did not appear on 06 October, 2016, hence these 2 structures were also constructed additionally by the Appellant, post-October, 2016. Similarly, at Sr. No.7 in respect of structure-G in January 2020 there was found ground structure with one room while earlier there was no such structure in October 2016. Hence, this structure was also subsequently raised by the Appellant and all these additional structures are apprehended to have been raised after passing of earlier demolition order. With respect to structure-J at Sr.No.10 also, a ground structure with 2 rooms which did not exist in 2016, is found existing in January 2020. At Sr. No.11, structure-K, a toilet structure with 2 rooms is found to exist in January 2020 which did not exist in 2016, at Sr. No.13 a swimming pool is shown to exist as shown in the legend in the map enclosed which did not exist at the time of inspection conducted in October 2016.
36. Then learned Counsel for Respondent No.2 drew attention to Sr. No.10 of the observations which shows that a dotted line showed a structure of about 25 sq. mtrs. as per survey plan, which was not seen nor identified by the representative of Appellant in survey conducted in 2020, and having drawn attention to it he argued that it was this structure which existed prior to 1991 which now was found not in existence in the year 2020. Whether it was demolished by the Appellant himself or what happened has not been made clear but the fact remains that on the survey conducted in the year 2020, the said structure did not exist. It is also recorded at point No.13 in the observations that the Learned Counsel for the Appellant refused to provide any legal documents Page 50 of 57 to show that there structures which existed on the Survey number in question were legal.
37. Having taken into consideration rival contentions on this point, we are of the view that there is nothing shown from the side of the Appellant strong enough to discard the Field Inspection Report dated 13.01.2020, which has been conducted in presence of his representative and it has also come on record that no documentary evidence was extended from the side of the Appellant to prove that these structures which were found to be in existence on the said Survey Number were constructed with due permission obtained under law from the competent authorities and therefore the argument that there was wrong comparison made of the structures in the light of earlier joint committee Report date 16 October, 2016 and the Field Inspection Report dated 13- 14.01.2020 does not hold good. There appears no other evidence to determine how these structures came on the said place. This was responsibility of the Appellant to explain, how these structures came up which he failed to discharge miserably. He is trying to take benefit of doubt that it is on the basis of wrong comparison with respect to the property/structures on the spot, that these structures are ordered to be demolished under the impugned order, which is sweeping order saying that all the structures standing on the said plot by demolition. One more point we would like to add is that the Learned Counsel for the Appellant also drew our attention in this regard to page-130 of the paper book which is a part of reply to notice dated 18.02.2011 given by the Appellant to GCZMA, wherein it was pleaded that he wanted to examine following witnesses;
a) The Sarpanch, Village Panchayat of Calangute and
b) The Secretary of Village Panchayat of Calangute Page 51 of 57
c) Mrs. Vignette Andre, (unclear)
d) Mrs. Alvira D'costa.
But the said permission was not allowed. To this argument the rebuttal was made from the side of Respondent No.1 by saying that if the Appellant wanted version of these witnesses to be brought on record, he had opportunity to produce their affidavits on record but he failed to do that, hence no benefit of this plea can be allowed to the Appellant. We are in agreement with the arguments of Learned Counsel for Respondent No.1, as well as Respondent No.2. The burden lay upon the Appellant to prove as to what structures existed on the impugned property prior to 1991 by leading evidence from his side in clear terms, particularly, giving a sketch map of the construction, but he failed to do so and now he is illegally trying to take benefit of this un-clarity with respect to structures which are ordered to be demolished. This fact is all the more necessary in this case because the Appellant has been engaging in long litigation and the same had gone up to the Hon'ble Apex Court, consuming enormous time in securing demolition of the earlier structures.
38. Learned Counsel for the Appellant drew our attention to page-202 of the paper book which contains resolution No.II (01) dated 20.2.2012 of village Pnachayat Calangute, wherein a finding is given that " there can be no doubt (that) the structure (is) in existence much before the year 1987 and much before the Panchayat Rules and Regulations came into force ....." The Secretary has confirmed as per the Panchayat Records that the structures of Mr. Sylvester D'Souza are very old structures which existed before 1991, even the ward Member Mr. Annely Fernandez confirmed that he also stays in the said locality and he also knows that the structure of Mr. Sylvester D'Souza existed much prior to Page 52 of 57 before the year 1991". After perusing the evidence which was placed before Village Panchayat, case of the Appellant was found fit for regularization. Based on this documentary evidence, it is argued that this document has not been taken into consideration by the GCZMA before passing the impugned order illegally. In rebuttal, it was argued by the Learned Counsel for Respondent that this document has already been considered while earlier demolition order date 15.02.2012, had been finalized, now the same cannot be raised again. To this again, the Learned Counsel for the Appellant rebutted that the said resolution was not set aside by the any legal forum before which the matter of earlier demolition order went for consideration and hence this document can be taken into consideration in the present case. We are not in agreement with the view point of the Learned Counsel of the Appellant and uphold the arguments of the Learned Counsel for Respondents.
39. Learned Counsel for the Appellant candidly admitted that the Swimming Pool which was found existing in the Inspection Report of 2020, has been illegally constructed. This goes to show that he should have given clear picture with respect to other constructions as well, as to on which date they were raised that could have made the task of this Tribunal easier to pass an appropriate relief order. Further, it is argued by the Learned Counsel for the Appellant that the purpose of environmental law is not to demolish and that in case of vagueness in the structures and as to when they were raised, is not appropriate to order their demolition and hence the impugned order should be treated as perverse order. We partially agree with the Learned Counsel for the Appellant that the demolition is not the main aim of the environmental law but certainly, if violation is found to have been Page 53 of 57 caused by someone which results in polluting the environment, in that case not only compensation can be awarded proportionate to the damage caused to environment but such structure which is responsible for causing pollution can also be ordered to be demolished so that in future no environmental violation occurs.
40. Another important point which has been raised by the Learned Counsel for the Appellant is that the demolition notice stands vitiated because of pre-decision of the Authority issuing show-cause, which was prejudiced against the Appellant and in that regard reliance has been placed upon case- Oryx Fisheries Pvt Ltd v Union of India 2010 (13) SCC 427 wherein it is held that "the notice must state charges only and not the definite conclusions of the alleged guilt. If the show cause notice contains alleged guilt, the proceedings stand vitiated". Having drawn attention to this position of law, our attention was drawn to show- cause notice dated 16.03.2020, wherein it is recorded " to issue show cause notice as to why a direction to demolish structures and to restore land to its original condition should not be issued to you"
and thereafter it was urged that this language of the notice clearly shows that determination of demolition was already there in the mind of GCZMA Authority and only in order to show that opportunity of hearing was given to the Appellant, the said notice was given. This shows strong bias and hence the said notice deserves to be set aside.
41. We have gone through the impugned order in which it has been clearly explained by the Authority as to how it functions. It is not only the Member Secretary of GCZMA rather the said Authority while making consideration of the matters comprises, not only the Member Secretary who is spokesperson of the GCZMA but other authorities also such as Chairman, Member Secretary along with Page 54 of 57 Expert Members and other ex-officials, Members from various Departments, the Secretary Environment who is the Chairman of Authority etc. So many people being there on the Authority there could hardly be any possibility of bias against the Appellant and we are totally in agreement with the view taken by the Authority in discarding this argument.
42. In the light of analysis, we are of the view that there is no infirmity in the impugned order, by which demolition has been ordered and thus the appeal does not have force and the impugned order needs to be upheld and the appeal needs to be rejected with cost and is accordingly rejected with cost.
ORDER ON OA NO.91 OF 2021
43. In this Original Application the prayer is made by the Applicant that direction be issued to Respondent Nos.1 and 2 to demolish illegal construction raised by him at Survey No.242/2 (part) at Sunset Hotel at Saunta Vaddeo, Calangute, Bardez Goa, comprising swimming pool, structure-A, 2 rooms; structure-B, ground plus 2 rooms; structure-C toilet structure consisting of 2 rooms; structure-D, a bar with 2 rooms inside; structure E (G+2), having a residence on the ground floor and 4 rooms each on the upper floors, total 8 rooms; structure-F, ground with 2 rooms; structure G, ground floor with 1 room; structure-H, ground floor with 4 rooms; structure-J, ground floor with 2 rooms; structure-K, a toilet structure with 2 rooms and structure-L, which is plinth/foundation admeasuring about 126sq. mtrs. and further direct demolition of swimming pool and further direction be issued to Respondent No.1 to conclude the proceedings pending before it regarding Show cause notice dated 16.03.2020 within a period of 3 months. The facts narrated by the Applicant in this Application are Page 55 of 57 the same which are narrated in the Appeal No.14/2022 by Respondent No.2.
44. The Respondent No.1 has submitted status Report dated 21.03.2022 which says "I say that Show Cause notice dated 16.03.2020 issued by Respondent No.1 in term of decision taken in the 221st meeting of GCZMA held on 25.02.2020. I say that in pursuance of the said Show cause notice the concerned parties i.e. the Applicant and Respondent No.2 herein provided several opportunities to present their case before the Respondent No.1 Authority.
45. In view of above Report of RespondentNo.1 as well as the Judgment delivered by us in Appeal No.14/2022, this Application stands disposed of in terms of said Judgment.
46. It is further directed that the Appellant shall comply with the order and carry out directions given by Respondent No.1- Authority within a period of fifty (50) days positively, failing which an amount to be calculated at the rate of Rs.5 Lacs (Rs.Five Lacs) per day till full removal of offending structures, shall be payable by the Appellant to be deposited in the Environment Relief Fund set up under Sub-Section (3) of Section 7-A of the Public Liability Insurance Act, 1991.
The Appeal as well as Original Application No.91/2021(WZ) along with Caveat and IAs stand disposed of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 23, 2022.
Appeal No.14/2022 (WZ) Page 56 of 57 IA.39/2022 (WZ) IA.04/2022, Caveat No.04/2022 (WZ) with Original Application No. 91/2021(WZ) (I.A. No. 04/2022) HK Page 57 of 57