National Green Tribunal
Mr. Domnic Almeida vs The Member Secretary Goa Coastal Zone ... on 19 July, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Appeal No. 47/2016(WZ)
Mr. Domnic Almeida & Anr. Appellant(s)
Versus
The Member Secy GCZMA Respondent
Date of hearing: 19.07.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant: Mr. Sangramsingh Bhonsle & Ms. Aarti D. Bhonsle, Advocates
ORDER
1. This appeal has been preferred against order of Goa Coastal Zone Management Authority (GCZMA) dated 21.07.2016 directing as follows:
"NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986, and read with power vested with the GCZMA vide order S.O. 2264(E) dated 22.07.2014 issued by the Ministry of Environment & Forest, Government of India, the GCZMA hereby directs:
i) Mr. Domnic Almeida and Mrs. Synthia Almeida D's Souza alias Mrs. Christilia Almeida, the heirs of Mr. Peter Almeida, R/o H. No. 172 G(1)/2, Alto Duler, Mapusa, Bardez-Goa AND ALSO, at C/o Sea Valley Restaurant, Next to Paradiso Club, Anjuna, Bardez-Goa to demolish the entire structures which includes Sea Valley Restaurant (G+1 structure), shops, retaining wall on nallah situated in the property bearing Sy. No. 212/11 of Village Anjuna, Bardez-Goa as decided by the Authority in its 131st meeting held on 01.07.2016 and restore the land to its original condition, 1 within 15 days from the date of receipt of this order failing which the Dy. Collector & S.D.O. of Bardez, to verify if the structures are removed/demolished and in the event it is not removed as per these directives, then the Deputy Collector & S.D.O. of Bardez shall remove the said structures thereafter within a time period of two weeks and recover the expenses incurred from Mr. Domnic Almeida and Mrs. Synthia Almeida D's Souza alias Mrs. Christilia Almeida as the arrears of the land revenue. Mr. Domnic Almeida and Mrs. Synthia Almeida D's Souza alias Mrs. Christilia Almeida is required to submit a compliance report in respect of compliance of the afore-stated directions to the GCZMA within next 3 days of expiry of the aforementioned 15 days time period.
ii) The Chief Electrical Engineer, Electricity Department to disconnect the power supply connection to the said structure i.e. Sea Valley Restaurant (G+1 structure) and the shops situated in the property being Sy. No. 212/11 of Village Anjuna, Bardez-Goa.
iii) The Chief Engineer, Public Works Department (PWD) to disconnect the water supply connection to the said structure i.e. Sea Valley Restaurant (G+1 structure) and the shops situated in the property being Sy. No. 212/11 of Village Anjuna, Bardez-Goa."
2. The impugned order states that on receiving complaint dated 30.07.2015 that constructions of the appellants are in NDZ, without requisite permission, show cause notice was issued to them as to why the same be not demolished. The appellants filed reply claiming the constructions to be prior to 1991 when there was no bar to such constructions. However, the said plea has not been accepted on the ground that there is no record to prove existence of the said structure prior to 1991 nor of any permission of any competent authority. As per Google map of 2003 produced by the complainant, no structure existed in that year and the plot was barren land. Relevant extracts from the impugned order are:
"AND WHEREAS, the Authority perused the reply filed along with the documents produced by the heirs of Mr. Peter Almeida and noted that no documents placed on record so as to prove the existence of the structure prior to 1991 i.e. prior to coming in force of CRZ Notification nor there were any permission issued by the competent authorities/departments placed on record which shows that structure is legally constructed.2
Further, upon perusal of the counter reply filed by the Complainant Mr. Surendra Govekar, the Authority noted that the Google mapping image of the year 2003 produced by the Complainant so also the survey plan shows that no structure or residential house of coconut lodge was existing in the said plot and said plot was barren land. The Complainant further placed his reliance upon several documents pertaining to Inventory Proceedings, Land acquisition proceedings which proves that there was no commercial structure earlier existing in the said property bearing Sy. No. 212/11 of Village Anjuna."
xxx ................................xxx.........................................xxx "After hearing Advocate Kerkar a question was posed to him whether the structure is still being used as a coconut lodge to which it was answered that the structure is no longer used as a coconut lodge but the same is used as a Bar & Restaurant. Further, it was questioned whether any bar license was obtained from the Excise Department prior to 1991 to which it was answered that no bar license have been obtained to 1991.
The Authority observed that though the NOC's of the year 1985 and 1986 issued by the Village Panchayat of Anjuna for repair of coconut lodge which justifies existence of the structure prior to 1991 as submitted by Advocate Kerkar it was noted that the structure in question was no longer used as a coconut lodge and the same was being used as a Bar & Restaurant which is a commercial activity without obtaining any permissions from the concerned including that of the GCZMA. The Authority also noted that the Respondent by using the said structure under reference as a Bar & Restaurant has changed the use of land structure which is not permissible as per the CRZ Notification 2011 so also there is no evidence on record for construction of the said structure (i.e. G+1) being used as Bar & Restaurant from the concerned authorities as required under law."
3. We have heard learned Counsel for the appellant. None appears for the respondents.
4. Only contention raised by learned Counsel for the appellant is that the construction is shown to have existed prior to 1991 and only use was changed after 1991 from Coconut Lodge to Bar & Restaurant with name Café Sea Valley Restaurant without license. Thus, construction cannot be held to be illegal, being pre-1991.
5. We are unable to accept this contention. As found in the impugned order, google image of the year 2003 shows that the area was a barren 3 land in the said year. There is no material to support existence of structure prior to 1991. Thus, not only change of use but even constructions are shown to be post 1991, after enforcement of CRZ notification, prohibiting such constructions in the area in question.
Accordingly, the appeal is dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM July 19, 2022 Appeal No. 47/2016(WZ) DV 4