National Green Tribunal
Lavu Namdev Toraskar vs Goa Coastal Zone Management Authority on 6 May, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
**********
Appeal No. 07/2022(WZ)
I.A. Nos. 17/2022(WZ) & 35/2022(WZ)
IN THE MATTER OF:
Shri Lavu Namdev Toraskar,
H.No. 443/B, Vaddy, Candolim Bardez,
-Goa-403515
.....Appellant(s)
Versus
1. Goa Coastal Zone Management Authority
through its Member Secretary,
C/o Department of Science, Technology
& Environment, Government of Goa,
Office at 4th Floor, Dempo Towers,
Patto, Panaji-Goa.
2. Sh. Gurudas S. Toraskar,
H.No. 435, Vaddy, Candolim,
Bardez-Goa-403515
3. Sh.Shanil G. Toraskar
H.No. 435, Vaddy, Candolim,
Bardez-Goa-403515
.....Respondent(s)
Counsel for Appellant(s):
Mr. Shivan Desai, Advocate
Counsel for Respondent(s):
Ms. Fawia, Mesquita, Advocate for R-1(GCZMA)
Mr. Manjunath D. Mandrekar, Advocate for R-2 & 3
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Judgment Reserved on: 27.04.2022
Pronounced on: 06.05.2022
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JUDGMENT
1. The present Appeal has been filed by the Appellant Sh. Lavu Namdev Toraskar under Section 16(g) of National Green Tribunal (NGT) Act, 2010 against the impugned order bearing no. GCZMA/N/ILLE-COMPL/ 19-20/01 dated 03.01.2022 passed by the Goa Coastal Zone Management Authority (GCZMA) Respondent No. 1 under Section 5 of the Environment (Protection) Act, 1986 read with Environment (Protection) Rules, 1986, whereby the Appellant has been directed to demolish all the structures (illegal construction of the Restaurant, Ground Floor and Apartment on First and Second Floor) in Sy. No. 127/3 at Vaddy of Candolim Village, Bardez, Goa and to restore the land to its original condition, within 30 days from the date of receipt of the Order.
2. The brief facts narrated in the memo of Appeal are as follows:
(i) The Appellant is in possession of property bearing Sy. no.
127/3 of Village Candolim, Bardez-Goa along with an structure existing thereon since prior to 1991 which bore house no. 13/5 (Old), which originally belonged to one Mr. Manohar Hiru Naik Parulkar and his Mrs. Geetabala Manohar Parulkar. Prior to 1961, the said original owner handed over possession of the subject property along with the structure thereon to the father of the Appellant and since thereafter, the Appellant and his father were in possession of the said property. The house tax in respect of the said structure came to be assessed in the name of the Appellant's father who passed away in 1978 and since thereafter, the Appellant has been in continuous and peaceful possession of the same. Vide letter dated 10.07.2007, Village Panchayat of Candolim certified that 2 the house bearing no. 443/B (New) and 13/5(Old) situated at Vaddy, Candolim, Bardez-Goa, was an old house existing since prior to the year 1968 which was in the name of Namdev Babi Toraskar but due to inadvertence, the said letter could not be placed before the Respondent No. 1, hence, the Appellant has prayed that he may be allowed to rely upon the same.
(ii) Further, it is submitted that on 20.04.2016, the Appellant filed a complaint before the Respondent No. l pointing out illegal construction of permanent structure undertaken by Respondent No.2-Gurudas S. Toraskar in Sy. No. 125/1 of Village Candolim, Bardez Goa within 200 mts. of No Development Zone (NDZ), in violation of CRZ Notifications, in pursuance of which, the Respondent No. l (GCZMA) had issued show cause notice dated 25.04.2016 calling upon Respondent No.2 to show cause as to why the offending structure situated in Sy. No 125/1 be not demolished. Therefore, in this backdrop, the Respondent No. 2 filed a false and malicious complaint dated 04.05.2016 alleging that the Appellant was illegally running a business of restaurant and without any NoC from the original owners and on the basis of the same, the Respondent No. 1 issued a show cause notice dated 17.05 2016 to the Appellant. The Appellant filed a reply against the said show cause notice on 13.06.2016 stating therein that no new construction was undertaken on the subject property, rather the structure was an old one existing since prior to 19.02.1991, hence, CRZ Regulations were not applicable. In support of his version, the Appellant relied upon electricity bill showing energisation date as 02.01.1991 and relevant 3 extract of Gut Book of Village Candolim issued by the Talathi along with certificate issued by the architect certifying that the DSLR Plan (Directorate of Settlement & Land Records) and Gut Book Plan are of the same structure situated in Sy. No. 127/3 of Village Candolim, Bardez-Goa. On 28.09.2016, site inspection was carried out in the subject property by the Expert Member of the GCZMA before whom the Appellant produced all the relevant documents to establish the legality of the structure and the restaurant business, pursuant to which, site inspection report dated 06.12.2016 was prepared showing therein that the structure was in a Settlement Zone between 400 mts- 500 mts from the High Tide Line (HTL); the height of the structure was approximately 8.50 mts and was partially used as commercial and partially as residential; the structure was aligning with other residential and commercial structures along the Calangute-Sinquerim main road; the structure was shown on DSLR Plan; an application for regularization dated 07.12.2015 was pending before the GCZMA.
(iii) It is further submitted that the said inspection report dated 06.12.2016 establishes that there was no illegality attributable to the Appellant and that the structure was in keeping with the applicable provisions of law.
(iv) In pursuance of the site inspection, show cause notice ought to have been withdrawn but the same was kept pending. Thereafter, the son of the Respondent No.2 namely Shanil G.Toraskar filed a fresh complaint before the Respondent No.1 alleging CRZ violation, of which cognizance was immediately taken by Respondent No.1, 4 who proceeded to conduct a site inspection on 08.04.2019, conducted without notice and arrived at findings adverse to the Appellant. In pursuance of the said complaint and the site inspection report, the Respondent No. 1 had issued a notice dated 23.06.2020 for personal hearing to the Appellant, during which Respondent No.1 made a reference to a purported show cause notice dated 28.02.2019, which was never issued to him.
(v) In respect of the notice dated 23.06.2020 regarding personal hearing, the Appellant filed objection dated 21.07.2020 stating in brief as under:-
"a) No Site Inspection Notice was served upon him;
b) Subject structure was pre-1991 as established by the Gut Book;
c) The GCZMA had no jurisdiction in pre-1991
structures;
d) The issue with respect to the title and ownership of the property was a civil issue and beyond the scope of jurisdiction of GCZMA."
(vi) Further, it is submitted that in 273rd Meeting of Respondent No.1, the Appellant was posed with a query whether he had taken any step as the structure shown in Gut Book maintained by the Talathi was not shown in Gut Book held by the ISLR (Inspector of Survey and Land Records). In view of the same, the Appellant filed additional submission dated 10.11.2021 and produced additional documents i.e., notice dated 29.07.2021 issued by Dy. Collector which was in respect of Application for correction of Land Records which establishes that the Appellant had already taken necessary steps for correction of survey records.
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vii) Further it is submitted that the Appellant was under the belief that he would be given a personal hearing in respect of additional documents produced, but to his utter surprise in the 278th Meeting, the Respondent No. 1 took a decision to issue demolition order dated 03.01.2022 (Impugned order).
3. From the side of Respondent No.1, Sh. Dasharath M. Redkar, Member Secretary, GCZMA reply has been submitted to the Appellant's version saying that the Appeal is untenable both on facts and in law. The Appellant had absolutely no permission to erect the structures (offending structures) which are directed to be demolished. The Appellant had relied upon:- (a) Survey Plan of survey no. 127/3 in Vaddy of Village Candolim; (b) the Form I & XIV of in survey no. 127/3 in the same village; (c) the Gut Book extract from the office of the Talathi showing existence of a structure therein; Electricity Bills of the date 01.11.2017 and of the year 2000 (the date is not legible), which have been discarded by the Authority (Respondent No.1). The Gut Book extract from the office of the Talathi has also been discarded, the same being contradictory to the Gut Book held by Inspector of Survey and Land Records (ISLR) which shows no structure. The latter prevails over the former, as the former is only a referential book and any changes made, ought to have reflected in the principal book maintained in ISLR Office. Upon this reasoning which is elucidated in internal page no. 6 of the impugned order, the order has been passed. Similarly, the electricity bills have been discarded on account of major discrepancies and misrepresentation as the first bill shows subject structure was energized on 02.01.1991 while the second bill shows that structure was energized on 11.09.2000, although, the legacy number on both the bills are the same yet energisation date differs. Hence, the said reasoning in the impugned order is perfectly correct. 6
4. Further it is submitted that the subject structure did not exist since prior to 1991 in Sy. no. 127/3 nor the house tax was being paid with respect to the said structure as no document has been furnished by the Appellant to substantiate the same with respect to the structure, house no. 13/5(0ld).
5. It is further submitted that a letter was received from Village Panchayat Candolim stating that as per their record, house no. 13/5 is registered as house no. 447A(13/5) and stands registered in the name of Femina Ferrao Cardinho. The Appellant never produced before the Authority a letter alleged to have been issued by the Village Panchayat dated 10.07.2007. The Appellant has approached this Tribunal with unclean hands and has manipulated the records of the Village Panchayat. Annexure A-2 which is being claimed by the Appellant to have been issued by the Village Panchyat Candolim on 10.07.2007 is manipulated document wherein house no.443/B (New) and 13/5 (Old) situated at Vaddy, Candolim, Bardez-Goa is recorded as an old house existing prior to the year 1968. Discarding of the site inspection report dated 06.12.2016 is well explained in the impugned order dated 28.02.2019. The personal hearing notice is figuring erroneously and only one show cause notice was issued on 25.04.2016 to the Appellant and the same was acknowledged by the Appellant in his reply dated 22.07.2021, which forms part of the records.
6. From the side of Respondent Nos. 2 and 3/Complainants it is submitted that the present Appeal has been filed with sole intention of playing fraud upon the Authority. The subject matter of the present proceedings is illegal structure bearing house no.443-B comprising of ground plus two floors situated in the property bearing Sy. no. 127/3 of Village Candolim. The Ground floor is used for restaurant and first and second floor are being used as lodging. The said illegal construction was made by the Appellant without obtaining permission 7 from any authority, which is constructed within 500 meters from the High Tide Line (HTL) without maintaining the required setback and exceeding the permissible FAR. The said property belongs to late Manohar Hiru Naik Parulekar. The Village Panchayat has given house number to the said illegal structure somewhere in the year 1999. As per the certificate issued by Village Panchayat dated 18.01.2016 it can be distinctly seen that the said structure came into existence between 1999 to 2000. Initially, the Answering Respondent Nos. 2 and 3 had made a complaint before the Village Panchayat but the same was dropped by it on flimsy grounds. Thereafter, the Appellant feeling aggrieved, started making frivolous complaints against Mundkarial house of the Answering Respondents. Thereafter, the Respondent No.3 approached the Respondent No.1 (GCZMA) and an officer was designated to conduct site inspection on 28.09.2016 by the said Authority.
7. From a perusal of the said site inspection report dated 06.12.2016 prepared by Sh. Lavesh Shirodkar, Junior Scientific Assistant, it is evident that not a single document was produced by the Appellant to show that the structure in dispute existed since prior to 1998 nor could he produce any construction license. In spite of the above said illegalities, Sh. Lavesh Shirodkar, Junior Scientific Assistant, had gone extra mile to protect the said illegal structure, which is evident from his observations. However, the photograph annexed with the said report speaks volumes about the illegalities committed by the Appellant. The said illegal structure cannot be regularized in the teeth of patent violation of building rules. The Appellant is misguiding the authorities stating that regularization of the said structure is pending before North Goa Planning and Development Authority (NGPDA). The Respondent Nos.2 and 3 have obtained the copy of the reply given by NGPDA to the Appellant vide 8 letter dated 22.02.2016, the relevant paras of the said letter state as follows:-
"a) Proposed plan submitted for regularization does not tally to the site condition.
b) FAR Coverage exceeds permissible limits as per site condition.
c) Minimum required set back not maintain as per site condition.
d) The plot is affected by proposed 25.0 mts. wide road as such for 12.50 mts. from the center line of existing road to be left for road widening purpose.
e) The Property is falling within 500 mts from HTL Sea as such prior approval from GCZMA has to be obtained.
f) Clear title/ownership documents in favour of applicant has to be submitted."
8. From the above, it is amply clear that the illegal construction of the Appellant cannot be regularized. The site inspection was conducted on 28.09.2016, however, the Appellant deliberately suppressed the letter dated 22.02.2016 received from North-Goa Planning Development Authority (NGPDA). In the Affidavit sworn before NGPDA, Appellant has claimed to be owner of the property in question, however, survey records of property bearing Sy. no. 127/3 speaks otherwise. The Respondent Nos. 2 and 3 applied for extract of Gut Book maintained by ISLR, Mapusa and a bare perusal of the said extract, would show that the structure in question was not shown therein. There is no mention made about structure in dispute in survey record (Form I & XIV) nor is the said structure shown in survey plan which makes it clear that the extract of Gut Book produced by the Appellant is a fabricated document. Even, the electricity department doesn't have any document submitted by the Appellant at the time of energisation. Therefore, prima-facie the documents relied upon by the Appellant lack credibility and cannot be considered for deciding this Appeal. The Appellant has also relied upon a certificate dated 10.07.2007 issued by the Village Panchayat of Candolim in 9 which it is mentioned that the house no. 443/B (New) and 13/5(0ld) is an old house existed since prior to the year 1968 but the said certificate was not produced by the Appellant before the GCZMA. Hence, it renders the said document to be a forged one. In fact, the house no. 443/B and house no. 13/5 are two different houses. The house no. 13/5 is presently registered as house no, 447/A and it is in the name of Fermina Ferrao Cardinho regarding which a letter dated 04.04.2022 was issued by the Village Panchayat of Candolim. The certificate dated 18.10.2016 issued by the Village Panchayat of Candolim clearly certifies that the house bearing no. 443-B is existing from the year 1999-2000, standing in the name of the Appellant, as per the Village Panchayat records. There is not a single document on record to prove that house no. 443/B and House no. 13/5 are the same structure. Moreover, there is not a single house tax receipt of 1990 or 1989 produced by the Appellant.
9. Further, it submitted that the extract of Soil Classification Book pertaining to survey no.127/3, prepared in the year 1975, shows that the said property was being used for cultivation of coconut trees and that there was no mention of any construction in "Pot Kharab" column which makes it clear that as on 1975 there was no structure in the said property.
10. Now, we would like to refer to the impugned order, the issues considered therein and the appreciation of evidence made by the Respondent No. 1(GCZMA) in order to assess as to whether there is any deficiency/infirmity in the impugned order needing our interference. It would also be appropriate to mention here that we have to assess on the basis of evidence on record as to whether the Learned Member Secretary of GCZMA has followed the „Principles of Natural Justice‟ or not while deciding the dispute and whether appropriate 10 evaluation of the evidence is made in arriving at the conclusions drawn by him.
11. As regards following the „Principle of Natural Justice‟, the impugned order would reveal that the authority had received complaint on 04.05.2016 from Respondent No.2 regarding the alleged illegal construction by the Appellant. Whereafter, a show cause notice dated 17.05.2016 was issued to the Appellant. Thereafter, the Authority also carried out site inspection on 28.09.2016 and a site inspection report was drawn mentioning the illegalities in the property in dispute. Thereafter, another complaint dated 27.03.2019 was received by the Respondent No.1(GCZMA) from Respondent No.2 regarding the illegal construction upon the same property by the Appellant, whereafter, the site was inspected by the Expert Member of GCZMA on 08.04.2019 who submitted his report. Thereafter, various meetings of GCZMA were held which were attended by the Complainants/Respondent Nos. 2 and 3 as well as by the Appellant and, thereafter, finally on 03.01.2022 impugned order has been passed ordering demolition of the disputed property after giving proper opportunity of hearing to the both the sides. Therefore, it is quite apparent that the „Principles of Natural Justice‟ were followed in passing the impugned order.
12. Now, we would like to assess as to what were the points of consideration before the Learned Member Secretary, GCZMA and what findings have been rendered and the basis thereof and whether the same stands justified. The Authority has noted in the impugned order that it perused the Form No. I & XIV of the property in dispute and found that the same was registered in the name of one Manohar Hiru Naik Parulkar. The Appellant has not shown any connection between the said property owner and himself nor could he show as to how he acquired title of the said property where the disputed structure is 11 located. From a perusal of the said forms, it was apparent that under the heading of "Uncultivable Area" the column showed-"Nil", which clearly means that there was never any old structure standing in the property in dispute. Further, it is noted that the Expert Members observed that there is a Ground plus Two (G+2) structure with a restaurant on the ground floor and the Expert Members had noted that the Village Panchayat of Candolim did not grant any occupancy certificate to the illegal structure constructed at the site and that the Appellant had submitted documents to the Member Secretary, North Goa PDA vide letter dated 22.02.2016 for the development permission but the same was rejected citing the reasons that there were no ownership title documents, no setback from the main road and FAR exceeded the permissible limits. The Learned Authority has concluded from it that moving an application by the Appellant before NGPDA on 22.02.2016 makes it amply clear that the impugned construction was of the year 2016 and that the alleged illegal construction exceeded 33% of the FAR and that too without any permission and further violations were committed by using the same for commercial activity knowing full well that the said property fell within 200 mts-500 mts. of the HTL. It is further noted in the impugned order that Respondent before GCZMA (Appellant in NGT Appeal No. 07/2022) was present at the site at the time of site inspection and that he miserably failed to justify/prove that the structure in question was constructed prior to 1991. In fact, the Respondent before GCZMA (Appellant in NGT Appeal No. 07/2022) has relied on just two documents i.e. (i) a letter from Village Panchayat of Candolim dated 05.11.2016 wherein it is stated that the structure in question is shown on the survey plan and so the show cause notice issued by the Village Panchayat of Candolim is withdrawn. The Secretary, Village Panchayat of Candolim vide letter dated 05.11.2016 stated that, "Further, after verifying your reply filed by you on 14.06.2016, wherein you had submitted the survey plan, on 12 which it clearly shows the existence of the structure for which above referred show cause notice was issued, as the same is shown on the survey plan. Therefore, in pursuance to the resolution No. 6(27) passed in the monthly meeting held on 12.07.2016, it was resolved by the body to withdraw the above referred show cause notice, since the documents submitted by you show the fair existence of the structure on site thereby proving the existence of the same as an old structure". The Respondent No.1 (GCZMA) has held that the said reasons given by Village Panchayat cannot be considered as:-
"(i) The Survey Plan of the property bearing Survey No 127/3 does not show any existence of any structure standing thereon and;
(ii) The Form1 & XIV also do not indicate any area shown in the form as the area of the structure standing thereon."
13. The next consideration made by the Authority is relating to the extract of the Gut Book which is in the possession of the Talathi of the Village of Candolim in respect to the property in dispute, which shows that a structure stood therein. However, the Respondent Nos. 2 und 3 produced another Gut Book maintained by the Inspector of Land and Survey Records (ILSR), Mapusa, Goa wherein the impugned property is presently indicated as barren land without any structure whatsoever. The Learned Authority has noted in the order that the Gut book maintained by the Talathi does not have any legal bearing, being only a referential book given to the concerned office of the local Panchayat Talathi for mere reference. If the structure was standing and was subsequently inserted, there are no details furnished to the Authority to prove beyond doubt as to when were the details of the structure inserted. The Talathi has also not mentioned, nor has he given any details to show how and when the said disputed structure was inserted. Therefore, the Gut book being a sketch book given to the Talathi, does not have any legal bearing and cannot be considered as a 13 document to be relied upon to prove the legality of the structure. Moreover, it is also noted in the order that there seems to be some glaring and major discrepancy in the two Gut Books produced of the same Village regarding the same property maintained by two different Government Departments, as a result of which information in this regard cannot be relied upon to adjudge the legality of the structure in dispute, as the survey was promulgated in the year 1971-1974 and was kept open to the public for suggestions and objections. There is nothing on record to show that Appellant had objected for promulgation of the records in respect of the disputed property.
14. Further, it is noted in the impugned order issued by the Authority that there is no structure shown on the survey plan of the disputed property. Moreover, the Village Panchayat of Candolim vide letter dated 18.10.2016 has clearly stated that the house is in existence from the year 1999-2000 and stands recorded in the name of the Appellant, as per the Panchayat records of Village Panchayat Candolim and has also clearly stated that the Appellant has subsequently paid an additional amount of money as the additional house tax on the house in question from the year 2000-2001, but it is presumed by the Respondent No. 1(GCZMA) that the additional house tax is paid by the Appellant for the additional floors put up by him. It is further noted that the Appellant had relied on the House tax receipt to prove the existence of the structure but since the house is in existence from the year 1999-2000, which is way after the CRZ Notification came into force and further the same is used for commercial purposes without any approval or permission obtained from the office of the GCZMA, the entire structure is held to be illegal.
15. The next consideration made by the Respondent No. l (GCZMA) is that the Appellant has relied on the electricity bills issued by the electricity department, Govt. of Goa. In this regard, the Appellant had 14 produced two old electricity bills wherein the legacy numbers on both the respective bills are the same but the energisation dates differ. The first bill shows that the structure was energised on 02.01.1991 and the second bill shows that the structure was energised on 11.09.2000. In view of that, it was concluded by the Respondent No.1 (GCZMA) that there is misrepresentation on the part of the Appellant and a document has been created by him (Appellant) to protect personal interest. Due to major discrepancies, the said electricity bills were discarded, which were produced to prove that the structure of the Appellant stood since prior to 1991.
16. The next consideration made by the Learned Authority (GCZMA) relates to a certificate issued by the Architect and Valuer, produced from the side of the Appellant, it was held that it cannot not be considered, he being not a government recognized Architect and Valuer. Further, it has been held that, the Architect cannot verify the authenticity of the structure and would give his certificate based on the documents produced before him. Therefore, his report has also been discarded as regards proving legality of the structure in dispute. Further, it is recorded that plan drawn by DSLR, Mapusa dated 14.05.2015 displays a structure but it clearly states in the heading that ".... display of the newly surveyed features on this plan does not confer them legality". On this basis, it is held that on an application by the party to plot the structure on the survey plan, the DSLR has plotted but the department has clearly stated that the new structure plotted does not confer legality. It is for the GCZMA to check the legality of the structure as the area falls within its jurisdiction.
17. Further, the Respondent No. 1(GCZMA) has noted in the impugned order that the water connection of the impugned structure was released on 16.09.2000 which stood in the name of the Appellant 15 for house no. 443/B which clearly indicates the date of release of water connection.
18. Further, it is noted in the impugned order by the Learned Authority (GCZMA) that a perusal of the site inspection report prepared by Junior Scientific Assistant Mr. Lavesh Shirodkar dated 06.12.2016 would show that all the documents relied upon to base observations are specific documents produced after the CRZ Notification 1991. The Affidavit dated 29.07.1999 cannot be taken on record as the same is a mere statement of the concerned person not backed by any evidence like any documents or any government registered document. The documents relied upon in the site inspection report clearly brings out the fact that the structure in question is used for commercial purpose and is being run by the Appellant for the business purposes.
19. In the last, the Learned Authority (GCZMA) has noted in the order that the Appellant has failed in his efforts miserably to prove that the structure in question stood prior to 1991 as he could not produce any documentary evidence to that effect. He has not submitted any approved plan from any government department to prove the legality of the structure in question. He has also not obtained any construction/repair/renovation license from the concerned Village Panchayat of Candolim. The very fact that he has moved his file to the Town and Country Planning (TCP)/ North Goa Planning Development Authority (NGPDA) for the purpose of regularization of the structure clearly proves that the structure is illegally constructed without any approval. He has failed to produce any occupancy certificate from the office of Village Panchayat of Candolim and has also failed to produce any title document/ownership document to prove any ownership of the 16 property and, accordingly, the impugned order for demolition has been passed.
20. During the argument before us, the Learned Counsel for the Appellant has pointed out Annexure No.A-2 at page no. 30 of the paper book which is a certificate issued by Village Panchayat of Candolim certifying that the house number bearing 443/B(New) and 13/5(Old) situated at Vaddy, Village Candolim, Bardez, Goa is an old house existing since prior to 1968 which stands in the name of Sh. Namdev Babi Toraskar as per the Village Panchayat Records and that it has been issued at the request of the Appellant. Pointing out this document, it is argued by the Learned Counsel for the Appellant vehemently that the structure in dispute existed prior to CRZ Notification, therefore, no permission of any construction etc. would be required from the Respondent No.1-(GCZMA) but this document has been disputed from the side of Respondent No.1 by pointing out that the said document is a fake document because it does not bear proper seal of the Village Panchayat nor any name of Authority below the signature has been mentioned which has issued the same. As against this, attention is drawn from the side of Respondents to page no. 153 of the paper book which is a certificate issued by Secretary of Village Panchayat of Candolim, Bardez, Goa certifying that house bearing no. 443-B situated at Vaddy, Candolim, Bardez, Goa is existing from the year 1999-2000, standing in the name of Sh. Lavu Toraskar (Appellant) as per the Village Panchayat records, who paid additional house tax on the said house from the year 2000-2001.This certificate issued as per Resolution 6(9) passed in the Village Panchayat meeting dated 13.10.2016 at the request of Sh.Gurudas S. Toraskar (Respondent No.2). It is argued that this is the correct certificate which establishes that the house in dispute was existing from the year 1999- 2000 and it was not that the said construction is of prior to 1991 and 17 that CRZ Notification would not be applicable upon it. We are of the view that the said document relied upon by the Appellant at page no. 30 of the paper book does not appear to be a genuine one and in our opinion the same needs to be discarded and the document which has been presented from the side of the Respondents at page no.153 of the paper book appears to be genuine one which establishes that the property in dispute stood since 1999 and not prior to 1991. Hence, CRZ Notification must apply on the said property in our estimation.
21. The next argument made by the Learned Counsel for the Appellant was that the reasons recorded by the Learned Authority (GCZMA) are erroneous as no verification /authentication has been got done from concerned departments with respect to the documents. This is a very vague argument. In our opinion, the burden lay upon the Appellant to produce all the documents in support of his claim and it was his evidence alone on the basis of which, the Learned Authority was supposed to reach a conclusion as to whether he succeeded in proving his point that the disputed property was in existence since prior to 1991. The Authority‟s reasoning which we do not find any fault with, appears to be based on plausible logic.
22. One more controversy had arisen during the argument that was relating to the house number of property impugned in this Appeal. The house no. 443/B Vaddy, Candolim, Bardez, Goa is recorded as address of the Appellant while as per the information obtained by Respondent No.3 Sh. Shanil G. Toraskar under RTI which is at page no.152 of the paper book, house no.13/5 is registered as house no. 447/A (13/5) in the name of Fermina Ferrao Cardinho. There is another information obtained by Respondent No.3-Sh. Shanil G. Toraskar under RTI dated 04.04.2022 whereby it is informed that house no.443/B is registered in the name of Lavu Toraskar (Appellant). The house no.443-B is registered in the name of Ankush 18 Toraskar and house no.13/5 is registered as house no. 447/A (13/5) in the name of Fermina Ferrao Cardinho. A query was made by us from the Learned Counsel for the Appellant as to why there is a discrepancy with respect to the house number, as in RTI information dated 04.04.2022 house no.443-B is also shown registered in the name of Ankush Toraskar, he replied that total area of Sy. no.127/3 is 150 sqmtr and there is only one house situated thereon, that is of the Appellant and that there is no discrepancy in the house number as its old number was 13/5 and new number has become 443/B. This controversy is being generated by the Respondents only with a view to confusing the Tribunal. We are of the view that since the demolition order has been passed mentioning the survey number i.e. 127/3, hence, discrepancy with respect to the house number may be ignored, because it is admitted by the Appellant that there is only one house situated on the said survey number in question and that is of Appellant.
23. The Learned Counsel for the Respondent No.1 has argued that there is no infirmity in the impugned order as the same has been passed based on logical reasoning and evidence brought on record by the Appellant. The Village Panchayat does not have any authority to give conclusive finding regarding whether the disputed structure existed on the spot since prior to 1991 or was constructed thereafter. The obligation lay upon the Appellant to prove by his documents that the said structure was in existence since prior to 1991 but he has failed miserably in that. Therefore, this Appeal should be dismissed.
24. Respondent Nos. 2 and 3 have argued that the Appellant has played fraud upon the Court by producing false and fake document at page no. 30 of the paper book which is said to have been issued by the Village Panchayat of Candolim certifying to the effect that the disputed structure existed since prior to 1968 which document has been rightly 19 discarded by the Respondent No.1(GCZMA) and, therefore, the Appeal should be dismissed.
25. After having considered rival submissions and having perused all the documentary evidence on record, we come to the conclusion that there is no infirmity in the order passed by the Authority (GCZMA). The two documentary evidences which were mainly led before the GCZMA, are the two electricity bills which were relied upon by the Appellant before the Respondent No.-1 (GCZMA) as well. One of the bills is at page no.50 of the paper book, the energization date in which is 02.01.1991 which is in the name of the Appellant and the other bill is also in the name of the Appellant which is at page no.59 of the paper book. Because it is a photocopy, the energization date is not legible nor can the legacy number be matched but it has been argued in the open Court by the Learned Counsel for Respondent Nos. 2 and 3 that these bills which were relied upon by the Learned Counsel for the Appellant before the Respondent No.-1 (GCZMA) in order to establish that the property in question stood there since prior to 1991, have been rightly discarded for the right reasoning given by the Respondent No.-1 (GCZMA). In the impugned order, it is recorded that they were discarded due to discrepancies. The Learned Counsel for the Appellant did not put up any convincing argument before us to say that the said bills were not discarded for the right reasons.
26. The other argument which was hammered before us by the Appellant‟s Counsel is that at page nos. 51 and 52 of the paper book is the survey of 1971 of the property in question which shows construction existed on the spot and the same has not been taken into consideration by the Respondent No.-1 (GCZMA) but as against this, the Respondent‟s Learned Counsel has argued that the said document has been got prepared by a private surveyor, same has no evidentially value, while the one which has been annexed by him at page no. 145 20 of the paper book is authentic one which clearly indicates that there was no construction on Sy. no.127/3 at the relevant time. The Learned Counsel for Respondent No.-1 (GCZMA) has also informed with regard to the finding of Authority on Gut Book wherein it is held that extract of Gut Book in possession of Talathi of Village Candolim shows that a structure stood therein, however, the complainant (Respondent Nos. 2 and 3 in present Appeal) produced another Gut Book maintained by ILSR, Mapusa indicating the same land to be without any structure and, thus, finding major discrepancy in the two Gut Books, the same was discarded by the Authority rightly. In our opinion, there is absolutely right reasoning given by the Authority in discarding the said evidence and it is rightly held that on the basis of said documents, it cannot be held that the impugned structure stood since prior to 1991.
27. In inspection report dated 06.12.2016, it is recorded that the site is located in the property bearing Sy. no.127/3 at Vaddy of Village Candolim, Taluka-Bardez, Goa between 200mts to 500 mts from HTL of Arabian seas i.e. in the settlement zone. On site, there is a structure of approximately 8.50 mts in height which is a residential house, wherein the ground floor of structure is used as a restaurant and the first floor and second floor consisting of four rooms are used for residential purpose. The structure lies approximately between 400 mts to 500 mts from the HTL of the Arabian sea. The said structure is in line with other residential and commercial structures along with Calangute and Sinquirim main road. The structure is shown on DSLR Plan. The Application dated 07.12.2015 for regularization of the said structure is pending before the GCZMA. There is another inspection report which is at page nos. 63 to 65 of the paper book in respect of the disputed property wherein it is concluded that NGPDA has rejected the violators/Appellant‟s development permission on the ground that 21 he does not have ownership of the plot, the FAR proposed for structure exceeded the limits and there is no requisite set back from the main road in its front side, there are multiple violations pertaining to different departments. As per CRZ Regulation, within 200 mts-500 mts of CRZ-III area, new construction of either a ground floor structure or G+1 structure is permitted with GCZMA permission, provided the plot coverage is 33%, FAR is 33% and a height of the structure is not exceeding the 9 mts. The structure constructed by the Appellant is G+2 structure, FAR exceeds 33% and it is constructed without any permission from the GCZMA and other authorities. So, it becomes an illegal structure which demands action as per CRZ rules. The above mentioned two reports do make it clear that the property in question is governed by CRZ Regulations being situated within 200 mts-500 mts of HTL area and it is also clear that without any approval or permission from the relevant authorities, the said construction has been raised illegally.
28. Against the site inspection reports nothing has been argued by the Learned Counsel for the Appellant as to why they should not be believed to be correct and why the disputed structure be not treated to the existing in CRZ-III area as opined in the said inspection reports. Therefore, we are of the view that the disputed structure lies in CRZ-III area and as per Coastal Regulation Zone Notification, 2011 following activities are prohibited as well as permitted, for the sake of convenience which are as follows:-
"Category III (CRZ -III):
A. Area upto 200mts from HTL on the landward side in case of seafront and 100mts along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as "No Development Zone (NDZ)",-
(i) the NDZ shall not be applicable in such area falling within any notified port limits;22
(ii) No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities;
Construction/reconstruction of dwelling units of traditional coastal communities including fisherfolk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal communities including fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;
(iii) however, the following activities may be permitted in NDZ -
(a) agriculture, horticulture, gardens, pasture, parks, play field, and forestry;
(b) projects relating to Department of Atomic Energy;
(c) mining of rare minerals;
(d) salt manufacture from seawater;
(e) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II;
(f) facilities for regasification of liquefied natural gas subject to conditions as mentioned in subparagraph (ii) of paragraph 3;
(g) facilities for generating power by non conventional energy sources;
(h) Foreshore facilities for desalination plants and associated facilities;
(i) weather radars;
(j) construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads, provision of facilities for water supply, drainage, sewerage, crematoria, cemeteries and electric sub- station which are required for the local inhabitants may be permitted on a case to case basis by CZMA;
(k) construction of units or auxiliary thereto for domestic sewage, treatment and disposal with the 23 prior approval of the concerned Pollution Control Board or Committee;
(l) facilities required for local fishing communities such as fish drying yards, auction halls, net mending yards, traditional boat building yards, ice plant, ice crushing units, fish curing facilities and the like;
(m) development of green field airport already permitted only at Navi Mumbai.
B. Area between 200mts to 500mts,-
The following activities shall be permissible in the above areas;
(i) development of vacant plot in designated areas for construction of hotels or beach resorts for tourists or visitors subject to the conditions as specified in the guidelines at Annexure-III ;
(ii) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II;
(iii) facilities for regasification of liquefied natural gas subject to conditions as mentioned in sub-paragraph (ii) of paragraph 3;
(iv) storage of non-hazardous cargo such as, edible oil, fertilizers, food grain in notified ports;
(v) foreshore facilities for desalination plants and associated facilities;
(vi) facilities for generating power by non-
conventional energy sources;
(vii) construction or reconstruction of dwelling units so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans. Building permission for such construction or reconstruction will be subject to local town and country planning rules with overall height of construction not exceeding 9mts with two floors (ground + one floor);
(viii) Construction of public rain shelters, community toilets, water supply drainage, sewerage, roads and bridges b y C Z M A who may also permit construction of schools and dispensaries for local inhabitants of the area for those panchayats, the major part of which falls within CRZ if no other area is available for construction of such facilities;
(ix) reconstruction or alteration of existing authorised building subject to sub-paragraph; 24
(x) development of green field airport already permitted only at Navi Mumbai."
29. From the above, it is apparent that for the property which is located between 200 mts to 500 mts as in the present case, the development of the same was required to be done only with the prior permission/approval from the GCZMA which has not been done.
30. Now, this Tribunal would like to rely upon the judgment of the Hon‟ble Apex Court delivered in Vaamika Island (Green Lagoon Resort) v. Union of India (2013) 8 SCC 760, the relevant paras of the said judgment are as follow:-
"26. The Petitioner had effected the construction in violation of the provisions of Notifications 1991 and 2011 as well as Map 32-A, so found by the High Court. Factual details of the same and where actually the portion of some of the properties of the petitioner in the Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paragraphs 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the Panchayats to strictly follow the provisions of CRZ Notification which it was found, not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of Notification 2011 and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notification and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.
27. We are of the considered view that the above direction was issued by the High Court taking into 25 consideration the larger public interest and to save the Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. The Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognizing the socio-economic importance of this water body, it has recently been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the above mentioned perspective."
28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of CRZ Notifications 1991 and 2011 are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa and Others (2004) 3 SCC 445, wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned."
31. Further, we would like to rely upon the law laid down in Piedade Filomena Gonsalves v. State of Goa ((2004)3 SCC 445) which as follows:-
"4. We do not think that any fault con be found with the judgment of the High Court and the appellant can be allowed any relief in exercise of the jurisdiction conferred on this Court under Article 136 of the Constitution. Admittedly, the construction which the appellant has raised is without permission. Assuming it for a moment that the construction, on demarcation and measurement afresh and on HTL being determined, is found to be beyond 200 metres of HTL, it is writ large that the appellant has indulged into misadventure of raising a construction without securing permission from the competent authorities. That apart, the learned counsel for the respondent, has rightly pointed out that the direction of the High Court in the matter of demarcation and determination of HTL is based on the amendment dated 18.8.1994 introduced in 26 the notification dated 19.2.1991 entitled the Coastal Regulation Zone notification issued in exercise of the power conferred by section 3(1) and Section 3(2)(v) of the Environment Protection Act, 1986, while the appellant's construction was completed before the date of the amendment and, therefore, the appellant cannot take benefit of the order dated 25.9.96 passed in Goa Foundation v. State of Goa."
5. It is pertinent to note that during the pendency of the writ petition, the appellant had moved two applications, one of which is dated 11.7.1995, for the purpose of regularisation of the construction in question. Goa State Coastal Committee for Environment-the then competent body constituted a sub-committee which inspected the site and found that the entire construction raised by the appellant fell within 200 metres of the HTL and the construction had been carried out on existing sand dunes. The Goa State Coastal Committee for Environment, in its meeting dated 20.10.1995, took a decision inter alia holding that the entire construction put up by the appellant was in violation of the Coastal Regulation Zone Notification.
6. The Coastal Regulation Zone notifications have been issued in the interest of protecting environment and ecology in the coastal area.
Construction raised in violation of such regulations cannot be lightly condoned. We do not think that the appellant is entitled to any relief. No fault can be found with the view taken by the High Court in its impugned judgment."
32. Further, we would like to rely upon the observations made in Ratheesh K.R. v. State of Kerala (2013 SCC online ker 14359:(2013) 3 KLT840 which are as follow:-
"98. However, we would rather rest our decision without pronouncing on the validity of the permits as such. We have found that the Notification is applicable to the island, the island falls in CRZ-I and construction is impermissible. By merely getting a permit under the Building Rules, it cannot be in the region of any doubt that the company cannot arrogate to itself, the right to flout the terms of the Notification. We have already noticed Rule 23(4) of the Kerala Municipality Building Rules, 1999 and Rule 26(4) of the Kerala Panchayat Building Rules, 2011. In this case, we may also note that there is no 27 permission sought from the authority. It is apposite to note that paragraph 3 (v) clearly mandates that for investment of Rs.5 crores and above, permission must be obtained from the Ministry of Environment and Forest. In this case, the investment of the company is far above Rs.5 crores. In respect of investments below Rs.5 crores, for activities which are not prohibited, permission must be obtained from the concerned authority in the State. The company has not made any such attempt at getting permission. That apart, this is a case where, even if permission had been applied for, the terms of the Notification would stand in the way of any such permission being granted in so far as the island is treated as falling in CRZ-I. Construction of buildings as has been done by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible under the Notification and if the company had obtained permit from the local body, would have made its activities legal, cannot avail the company for the reason that under the terms of the Notification, such permit obtained from the panchayat will be of little avail to it in the light of the nature of the restrictions brought about by the Regulations in respect of CRZ-I in which zone the island falls. According to the panchayat, no doubt, the conditions have been imposed also as recommended by the Assistant Engineer who is alleged to have even visited the island. Whatever that be, as observed by us, in the light of the view we have taken, namely that the 1991 Notification applies to the island, it is squarely covered by the same being included in CRZ-I and the constructions were begun even during the currency of the 1991 Notification. The conclusion is inescapable that it is in the teeth of the prohibition contained in the 1991 Notification and, therefore, it is palpably illegal.
107. At this stage, we must deal with the argument raised before us by the company. It is submitted that a world class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safe- guards essential for the preservation of environment.28
108. We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its WP(C).NO.19564/11 & CON.CASES 24 terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument."
33. In light of the above position of law, it is clear that the property in dispute lies in CRZ-III between 200 mtrs to 500 mtrs which required permission from the Authority (GCZMA) for any kind of development which has not been done in the present case rather the Appellant has tried to put forth the argument that the structure was of the period of prior to 1991. Hence, the CRZ Notification would not be applicable. We are not ready to accept this argument in view of the discussion held above.
34. Thus, it is also apparent that all these site inspections were made in presence of the parties and it is also apparent that the entire proceeding which was held by the Respondent No.-1 (GCZMA) was in presence of the Appellant, Therefore, it cannot be said that he was not given adequate opportunity to defend himself and we are of the view that the disputed area being covered under CRZ Notification, 2011 no construction could have been made by the Appellant without prior permission of GCZMA and, therefore, we do not find any infirmity in the impugned order which needs to be upheld and is accordingly upheld and this appeal deserves to be dismissed and accordingly is dismissed. Cost easy.
35. All pending I.As. are also stand dismissed.
Dinesh Kumar Singh, JM 29 Dr. Vijay Kulkarni, EM May 06, 2022.
Appeal No.07/2022 (WZ) I.A.No.17/2022(WZ) I.A.No.35/2022 (WZ) 30