Bombay High Court
Shri Felix Menino Jesus Serrao vs State Of Goa & Others on 2 March, 2000
Equivalent citations: 2000(3)BOMCR507, AIR 2001 BOMBAY 294, (2000) 1 GOALT 337 (2000) 3 BOM CR 507, (2000) 3 BOM CR 507
Author: R.K. Batta
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.K. Batta, J.
1. The petitioner in Writ Petition No. 76/95 seeks directions to respondent No. 3 to act in pursuance of notices dated 24th February, 1994 and 16th February, 1995 to demolish the compound wall and the building illegally constructed by the respondent No. 4 In Writ Petition No. 237/99 the petitioner (who is respondent No. 4 in Writ Petition No. 76/95) seeks quashing and setting aside of order dated 2-2-99 passed by respondent No. 3 therein and for directions to respondent No. 2 to consider the regularisation of the petitioner's structures in Survery No. 54/4 and 51/2. The controversy in the two petitions centres around the same property and, as such, the petitions were taken up together. Learned Advocate for the petitioner in W.P. No. 237/99 had requested on 27-9-99 to take up this petition alongwith W.P. No. 76/95 and, as such, arguments on merits in respect of both the petitions were heard.
2. In Writ Petition No. 76/95 the petitioner contends that the property of respondent No. 4 under Survey 54/4 is situated within less than 200 metres from the High Tide Line and that respondent No. 4 has made construction of compound wall, dug a well and constructed a building in the said property without obtaining any permission or licence and that respondents No. 2 and 3 have already rejected the plans for construction of compound wall and the well. It is further the case of the petitioner that inspite of the fact that respondent No. 3 has issued notices for demolition of compound wall and the building, the respondent No. 3 is not taking any action to demolish the same. According to the petitioner, the respondent No. 4 had escavated sand dunes for the purpose of the said construction.
3. Respondent No. 4 filed affidavit dated 23rd June, 1995 in which it was contended that the property in question had already a construction consisting of laterite pillars covered by palm leaves and thatched roof used partly to store coconuts and partly for residence during summer for sea bathers. It was further urged by respondent No. 4 that in front of petitioner's plot that is between the petitioner's plot and the sea beach, there are residential houses and also a hotel. Respondent No. 4 admitted in this reply that the property in question which is purchased by her consists mainly of sand dunes. According to respondent No. 4 she wanted to convert the existing hut into residential rooms and she was told that since the structure was existing, it was not necessary to apply for conversion and not to take any permission or licence for the said purpose. Subsequently by application dated 19th November, 1994, the respondent No. 4 applied for regularisation of the constructions and for necessary licence. But no order on the same has been passed by the authorities. According to respondent No. 4 the construction done by her is required to be regularised. Subsequently, respondent No. 4 filed additional affidavit on the ground that certain subsequent developments had taken place and certain additional facts were required to be placed on record. Accordingly, in this affidavit, it was stated that the respondent No. 4 had not excavated any sand dunes in the suit property. It was specifically stated in this reply that the construction put up by respondent No. 4 is beyond 200 metres of H.T.L. and that the order dated 20-10-95 by the Goa State Coastal Committee of Environment had never been communicated and it is only on 2-2-99 that the said order was communicated which is sought to be challenged by filing Writ Petition No. 237/99. In this affidavit, it was also stated that the construction in Survey No. 54/4 was started on 13-7-94 and completed on 17-8-94.
4. In Writ Petition No. 237/99 the challenge to order dated 2-2-79 passed by respondent No. 3 therein is that the said order has been passed in violation of the principles of natural justice; that there always existed a structure of thatched roof of laterite stones pillars which was used by sun bathers and visitors; that the construction of the building in place of the said structure was started on 13-7-94 and completed on 17-8-94 and that the said structure of the petitioner is 200 metres away from H.T.L. It was also urged in this petition that the application for regularisation has not been disposed of.
5. Respondent No. 3 has filed affidavit in this petition stating that the representation dated 17-5-95 and 11-7-95 of the petitioner was discussed in the 8th G.S.C.C.E. meeting held on 20th July, 1995 and on the said day the Sub-Committee decided to inspect the site and after inspection of the site, decision was taken in the matter on 20-10-95 which was communicated to the petitioner, by letter dated 8-12-95 against which the petitioner never reacted. It is specifically urged by respondent No. 3 that in order to create a cause of action, the petitioner has maliciously misled the respondent to give her a fresh copy of the decision taken by G.S.C.C.E. at the 9th meeting held on 20-10-95. According to respondent No. 3 the construction is completely illegal inasmuch as no permission or licence has been secured from the respondents nor from the Colva Village Panchayat. It was also stated that the structure is on sand dunes and it is within 200 metres from H.T.L.
6. In rejoinder, the petitioner has affirmed that order dated 20-10-95 was never communicated to the petitioner and respondent No. 3 has produced xerox copy of the outward register wherein the said letter dated 8-12-95 is shown to have been despatched to the petitioner.
7. We have heard learned Advocates, appearing in the matter. Learned Advocate Shri S.S. Kantak has taken us through the facts of the case and has submitted that the constructions made by the petitioner are without any licence and without obtaining permission from the authorities concerned and that the constructions are within 200 metres of the H.T.L. and that the constructions have been made on the sand dunes which is not permissible as per C.R.Z. Regulations. He also pointed out that the change of stand by respondent No. 4 in Writ Petition No. 76/95 and in this connection has drawn our attention to the two affidavits filed by the respondent No. 4. After drawing our attention to the said affidavits, it is urged that though the respondent No. 4 had admitted in the first affidavit that the construction had been stopped after the notice dated 26-11-94 was received, but in the second affidavit the respondent No. 4 has stated that the construction had already been completed by 17-8-94. Shri Kantak also drew our attention to C.R.Z. Regulations and pointed out that Colva has been classified as C.R.Z. III, except sand dunes which are classified as C.R.Z. I and that in C.R.Z. III there are restrictions on the constructions to which our attention has been drawn by him. He therefore contends that the constructions in question are liable to be demolished.
8. Learned Addl. Government Advocate Ms. W. Coutinho, pointed out before us that the demolition notices have already been issued. She further urged that the decision taken by G.S.C.C.E. on 20-10-95 was communicated to the petitioner by letter dated 8-12-95 against which respondent No. 4 never reacted and belatedly sought to challenge the said order on the ground that the same was not received.
9. Learned Advocate Shri Lobo, appearing for respondent No. 3 stated that notices for demolition have already been issued.
10. Learned Advocate Shri V.A. Lawande, appearing on behalf of respondent No. 4 in Writ Petition No. 76/95 and for the petitioner in Writ Petition No. 237/99 strenuously urged before us that the construction in question does not fall within 200 metres of H.T.L. that H.T.L. has still not been demarcated; that the structure existed in the property in question and the petitioner in Writ Petition No. 237/99 had merely repaired the said structure; that the petitioner Piedade Gonsalves is entitled to regularisation of this construction in question in view of amended Rule 3 of the Goa, Daman and Diu Village Panchayat (Regulation of Buildings) Rules, 1985 and that the application for regularisation has not been disposed of by the authorities so far. He, therefore, contends that the decision taken by G.S.C.C.E. is required to be set aside. Besides this, it is pointed out that the said G.S.C.C.E. is neither a statutory body nor it is in existence now.
11. We had given liberty to the petitioner Piedade Gonsalves to place before us material in order to substantiate her contention that the construction in question is liable to be regularised in accordance with Rules and Regulations. This opportunity was given since the petitioner Piedade Gonsalves had alleged that no opportunity was given by the G.S.C.C.E. before decision was taken by them to the effect that the construction in question could not be regularised and that principles of natural justice have been violated.
12. The central question which is required to be dealt with in these petitions is whether the constructions put up by Piedade Gonsalves are in accordance with the Rules and Regulations. The said Piedade Gonsalves had in categorical terms admitted in affidavit dated 23rd June, 1995 that the suit property consists mainly of sand dunes. It was nowhere specified in the said reply or the reply filed thereafter or any other document placed for the purpose of regularisation as to which part of the property consisted of sand dunes. This was absolutely essential since Piedade Gonsalves had herself admitted that the property in question consisted mainly of sand dunes. It is also to be noted at this stage that the construction of the compound wall, the well and the construction of the building in Survey No. 54/4 does not have any permission nor any licence from any authority. According to Piedade Gonsalves there already existed a structure in the suit property and the said petitioner had merely repaired the same. The details of the said structure, the location of the said structure, the extent of the said structure was nowhere specified by the petitioner Piedade Gonsalves. Besides this, a bare look at the photographs produced by the petitioner Felix Serrao which are at page 23 clearly show that it is not a case of repairs, but it is a case of total reconstruction. The photographs at page 22 of the petition show the existence of sand dunes, cutting and levelling of the sand dunes. The photos have not been disputed though it is stated in para 2 of affidavit dated 25-6-99 filed in W.P. No. 76/95 that photos are clicked at a particular angle so as to create an impression that the structure is on sand dunes which have been cut. The photos speak for themselves.
13. Besides this, the case of the authorities as well as the petitioner Felix Serrao is that the construction is within 200 metres of H.T.L. This was disputed by Piedade Gonsalves and her case is that the property in question as well as the structures are beyond 200 metres away from the H.T.L. Here again it is not disclosed by Piedade Gonsalves as to how far away is the suit property from the H.T.L., except for saying that it is beyond 200 metres of H.T.L. At this stage, it is relevant to note that as per C.R.Z. Regulations, the village of Colva has been classified as C.R.Z. III, except stand dunes which are classified as C.R.Z. I. In C.R.Z. III, the area upto 200 metres of H.T.L. has been earmarked as 'No Development Zone' and no construction is permitted except for repairs of existing authorised structures not exceeding existing F.S.I., existing plinth area and existing density and for permissible activities under the notification including facilities essential for such activities. Development of vacant plots between 200 and 500 metres of High Tide Line in designated areas of C.R.Z-III with prior approval of Ministry of Environment and Forests (M.E.F.) is permitted for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines at Annexure-II. The guidelines impose further restrictions on development of vacant plots between 200 and 500 metres of H.T.L. Though the petitioner Piedade Gonsalves has stated that her construction is beyond 200 metres of H.T.L., yet she has nowhere disclosed that the structures are beyond 500 metres of H.T.L. Therefore the restrictions in respect of the vacant plots would be directly applicable to the suit property in question and no construction in such area can be carried out without prior approval of the Ministry of Environment. No such approval has been obtained by the petitioner Piedade Gonsalves from the Ministry of Environment and Forests.
14. It is also pertinent to note that the petitioner Piedade Gonsalves has been changing her stand in the matter from time to time. In the affidavit dated 23rd June, 1995, it was categorically stated in para 13 that the petitioner Piedade Gonsalves had stopped the work of construction on the receipt of notice dated 25-11-94 which means that the construction had not been completed till then. However, inspite of the said stand, petitioner Piedade in subsequent affidavit dated 25th June, 1999 changed her stand and stated that the construction in Survey No. 54/4 had been started on 13-7-94 and had been completed on 17-8-94. This stand is totally contrary to the material on record.
15. The petitioner Piedade Gonsalves had filed applications dated 17th May, 1975 and 11th July, 1995 for the purpose of approval of the construction in question. The G.S.C.C.E. which was the competent body at that time had in the 8th Meeting held on 20th July, 1995 had decided that the sub-committee shall inspect the site. The site was duly inspected and it was found that the construction in question falls within 200 metres of the H.T.L. and the construction had been carried out on existing sand dunes. In view of the said site inspection report, a decision was taken by the G.S.C.C.E. in its meeting on 20th October, 1995 to the following effect :-
"Item No. 45 :---Proposed construction and regularisation of existing building in Survey No. 54/4 at Colva village by Smt. Piedade F. Gonsalves. (DJ/6030) This case was placed in the last 8th G.S.C.C.E. Adjourned meeting held on 20-7-95. The Committee had decided to inspect the site. Accordingly the site has been seen by the G.S.C.C.E. Sub-Committee on 12-9-95 and it was observed that:
1) The applicant has proposed for regularisation of building newly constructed sand dunes.
2) The applicant has already constructed partly i.e. 9 rooms are constructed which are also not as per the site conditions.
3) The portion to be constructed i.e. common room and rooms with 4 toilets with porch is to be done on the existing sand dunes. The said dunes partly have been already cut and flattened by the applicant.
4) The site plan submitted does not tally as per the site condition. The . applicant already carried out partly construction of compound wall. The existing building which is constructed does not have required side set back. The completed building provided flat terrace.
5) The entire existing and proposed construction falls under cultivable land as per the regional plan and within the 200 mts. from H.T.L. The G.S.C.C.E. agreed to the above observations of the sub-committee."
16. This decision is said to have been conveyed to the petitioner Piedade Gonsalves vide letter dated 8-10-95, but the fact that it was conveyed is disputed by the petitioner Piedade Gonsalves and respondent No. 3 has placed before us the outward register by which this letter was despatched to the petitioner Piedade Gonsalves. Thus, in effect the request of the petitioner Piedade Gonsalves for approval as well as for regularisation of the construction in question, has been duly considered by the competent committee. Besides this, the petitioner Piedade Gonsalves has not been able to satisfy us that the constructions in question are liable to be regularised. As we have already pointed out, the constructions have been done without obtaining any permission or licence or prior approval of the Ministry of Environment and Forests, as required under the C.R.Z. Regulations. The costructions in question are totally illegal and, as such, are liable to be demolished.
17. For the aforesaid reasons, the Writ Petition No. 76/95 is allowed and the compound wall, well and the building falling in Survey Nos. 51/1, 51/2 and 54/4 are ordered to be demolished. Respondent No. 3 shall therefore take necessary action in that regard. Rule is accordingly made absolute in the aforesaid writ petition. The interim order dated 24-7-95 is hereby vacated. In the facts and circumstances, the costs shall be borne by respondent No. 4 in Writ Petition No. 76/95.
18. Writ Petition No. 237/99 is dismissed with costs.
19. Writ petition dismissed.