National Green Tribunal
Michael Fernandez vs Goa Coastal Zone Management Authority on 29 June, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 (Court No.1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 34/2020
(Earlier Appeal No. 55/2019 (WZ))
(I.A. No. 97/2019)
Michael Fernandes Appellant
Versus
Goa Coastal Zone Management Authority & Anr. Respondent(s)
Date of hearing: 29.06.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Appellant: Mr. Shivan Desai, Advocate
Respondent: Ms. Fawia Mesquita, Advocate for GCZMA
Mr. Rahul Choudhary, Advocate for R-2
ORDER
1. This appeal has been preferred against the order of the Goa Coastal Zone Management Authority (GCZMA) dated 03.07.2019 directing demolition of the structure in question, in violation of CRZ Notification, 1991 as follows:
" xxx..................................xxx.................................xxx NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection)Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3324 (E) dated 26/10/2016 issued by the Ministry of Environment & Forests, Government of India, hereby directs Shri Michael Fernandes, "M/S MICKEY'S BAR AND RESTAURANT" to demolish all the structures (M.N,O and WC) as shown in the Survey plan attached to the Inquiry committee Report in Survey No. 96/1 of Betalbatim Village.1
Further, Authority directs the Respondent Shri Michael Fernandes c/o "M/S MICKEY'S BAR AND RESTAURANT", to take necessary measures to restore the Sand Dunes to its original condition in coordination with the Goa State Bio Diversity Board for which all costs for such restoration shall be borne by Shri Michael Fernandes c/o "M/S MICKEY'S BAR AND RESTAURANT". Furthermore, this Authority directs the Respondent to immediately stop all the commercial activities being carried out in the name of M/s Mickey's Bar and Restaurant situated in the Survey No. 96/1 of Betalbatim Village, with immediate effect and further to restore the land to its original condition, within 30 days from the date of receipt of this order.
The Dy. Collector & S.D.O of Salcete, to verify if the structures as referred above located in the property bearing survey No. 96/1 of Betalbatim Village is demolished as per these directives; failing which the concerned Deputy Collector/S.D.O shall demolish all the structures to enable restoration of land to its original state and recover the expenses incurred from Shri Michael Fernandes, c/o "M/S MICKEY'S BAR AND RESTAURANT", as the arrears of land revenue. Further, Dy. Collector & S.D.O of Salcete is required to submit a compliance report in respect of compliance of afore stated directions to the GCZMA within next 3 days of expiry of the aforementioned 30 days time period. The proceedings are disposed off accordingly."
2. The impugned order shows that the Bombay High Court at Goa has been monitoring action against illegal structures in the CRZ area. By order dated 26.09.2007 in Suo Moto Writ Petition No. 02/2006, all the local bodies were required to submit action taken reports. Further orders on the subject were passed on 12.01.2015 and 21.06.2016.
3. In pursuance of above, the GCZMA initiated action and constituted an Inquiry Committee on 04.04.2015. The Inquiry Committee found the constructions in question to be illegal as shown by the following discussion in the impugned order:
"AND WHEREAS, the matter was placed in the 202 nd GCZMA meeting held on 29/05/2019. The Authority decided that, "The Authority partly concurred with the findings of the Inquiry Committee. The Inquiry Committee in its report had also held that the property is a coconut garden having survey no.96/1 of Betalbatim Village. The Inquiry Committee had described the construction on the site as, "The Arabian Sea is on the western side of the property. There is one permanent structure (marked as N on the plan prepared 2 by the DSLR at the time of Site Inspection of the inquiry Committee)' on the eastern side of the property and one temporary structure (marked as M on the plan prepared by the DSLR at the time of Site Inspection of the Inquiry Committee), open on all sides with wooden pillars and roof of mangalore tiles, one W. C and shed (marked as 0 on the plan prepared by the DSLR at the time of Site Inspection of the Inquiry Committee). On the northern side of the property there is an open space and the survey plan shows the existence of a structure (marked as P on the plan prepared by the DSLR at the time of Site Inspection of the Inquiry Committee) but structure is not existing at the site".
The Authority noted that with regards to the temporary structure marked as 'M' and 'O' in the plan dated 08/05/2014, the respondent produced the NOC dated 03.12.2012 of village Panchayat of Betalbatim for the construction of the temporary structure in Sy. No. 96/1 of village Betalbatim and NOC dated 03-02-2012 for the purpose of running Bar & Restaurant. The respondent had not produced any permission from the GCZMA. The respondent has violated the CRZ Notification as the Temporary structure falls in the NDZ area and the Respondent did not have any approval from this Authority.
The Authority noted that as per the documents available on record, the property was purchased by Miss Tania Barretto and Miss Nadia Barretto represented by their natural guardian Miniato Barreto, vide Deed of Sale dated 08/07/1992. Subsequently the same property was purchased by Shri. Ulrich Angerer vide deed of Sale dated 28/04/2000. Thereafter the said property was purchased by the Respondent Michael Fernandes vide Deed of Sale dated 11/10/2010.
The GCZMA had earlier issued a Show Cause Notice bearing reference no. GCZMA/S/27/322 dated 09/02/2004 and GCZMA/SAL/BEN/8/350 dated 26/10/2004 to Shri Ulrich Angerer for the illegalities of constructing a bungalow in survey no. 96/1, Betalbatim village. The GCZMA after conducting inquiry had issued demolition order dated 26/10/2004; stating that the structure belonging to Shri Ulrich Angerer was illegal and constructed in the property bearing survey no. 96/1 of Betalbatim is in violation of CRZ Notification. Aggrieved by the order, Shri. Ulrich Angerer had filed an appeal in the High Court in Writ Petition No. 557 of 2004 wherein the Hon'ble High Court vide order dated 31/08/2005, had upheld the order of the GCZMA dated 26/10/2004.
The Authority also noted that the recitals in the Sale Deed dated 11/10/2010 and in the Sale Deed dated 8/7/1992 did not mention of any structure. The Authority noted that the Respondent, after the purchasing the property constructed the structures in the property bearing survey 3 no. 96/1 of Betalbatim Village, without obtaining permission from the GCZMA.
The Authority that with regards to the permanent structure marked as 'N' in the plan; the Respondent after purchasing of the property under Survey No. 96/1 by deed of Sale dated 11/10/2010, constructed the house marked as 'N' on the eastern side of the property leaving the open area at the place where the structure marked by letter P was shown to be existing in the survey plan. The village Panchayat allotted the house no. 46 and imposed house and light tax to the house marked as 'N'. Subsequently when the Complainant filed a complaint before the Village Panchayat for allotment of house member to the respondent. The Village Panchayat passed a resolution revoking the allotment of house number 46 to the respondent. In an appeal the Additional Directorate of Panchayats by order dated 24/02/2015 quashed and set aside the resolution revoking the allotment of House No. 46 and the Secretary (Panchayats) by order dated 23/12/2015 confirmed the order of Additonal Directorate of Panchayats and set aside the resolution of the Panchayat of revoking the allotment of the house number 46 to the structure 'N' of the Respondent.
The authority noted that with regards to the order of Secretary (Panchayats); Government. of Goa, Secretariat under no P.P. No. MAR-1/1181/2013 the Petitioner Mr. Michael Fernandes in this case had clearly admitted that, "........the house bearing no. 291/1-A stands registered from the year 1996-97 in the name of Miniato Barreto who was the natural guardian of Miss Tanis Barreto and later the same house number was transferred to Shri. Ulrich Angerer in the year 2000-2001....." . The Secretary (Panchayats) by order dated 23-12-2015 speaks of house no. 291/1-A. and the Village Sernabatim, Vanelim, Colva and Gandaulim allotted the house No. 46 hence this document cannot be considered as it bears no relevant with this issue in dispute.
The above documents on record could not be considered to prove that the structure is legal as the Panchayat does not have the right to legalize any structure which falls within the CRZ Area. Keeping in view of the fact that the application was filed on 14/12/2011, the resolution granting house number is bad in law as no approval was sought from the GCZMA for the purpose of construction of the structure N. The authority noted the Ulrich Angerer purchased the property along with the house existing in Sy. No. 96/1. The sale deed dated 28-4-2000 speaks about the structure but the GCZMA has sought for demolition of the structure on 26/10/2004 and the Hon'ble High Court has upheld the order of the GCZMA vide their order dated 31/08/2005, in view of this the question of the structure existing on site is not maintainable.
4Further, the Authority noted that the Respondent relied on the certificate dated 06/01/2016 bearing no. 501 issued by NIZ Ramponkarancho Ekvott, Benaulim and the Caste certificate dated 18/12/2016 under no. 140/2016, which does not have any significance nor relation to the illegal structure in survey no. 96/1 of betalbatim village and as such certificate are used for fishing activities and the structures in dispute are used for commercial activities.
The WC present on the plan is also illegal as it is marked as new structure and no permission was sought form GCZMA.
The Authority noted that with regard to the permanent structure marked as 'P', the sale deed of 1992 and the sale deed of 2010 purchased by the Respondent did not mention any structure existing on site. The property bearing survey no 96/1 of Betalbatim village, is shown as barren land without any structure.
The Authority also noted that in the Survey Plan prepared by the DSLR dated 08/05/2014 submitted in the Inquiry Report shows plinth 'P' but no structure is existing on site. However, the plan maintained in the Office of the GCZMA does not show the structure 'P'. This discrepancy was never clarified by the Respondent. Moreover, the Form I & XIV further confirms that there was no structures existing in the property bearing survey no. 96/1 of Betalbatim village prior to 1991. In any case existence of plinth 'P' on survey plan doesn't justify the new construction 'N' carried out by the Respondent.
The Authority noted that all the documents (i.e. NOC for temporary structures issued by village Panchayat of Betalbatim dated 3/2/12; application to allot house no. in survey no 96/1 of Betalbatim village addressed to the Village Panchayat Betalbatim dated 09/05/2012; order, of the Additional Director of Panchayats-I under case no P.P. No. MAR-1/118/2013; order dated 23/12/2015 passed by the Secretary (Panchayats), in case No. P.P. No. MAR-1/118/2013; sale Deed dated 1992, sale Deed dated 2000 and Sale Deed dated 2010; certificate dated 06/01/2016 bearing no 501 issued by NIZ Ramponkarancho Ekvott, Benaulim and the Caste certificate dated 18/02/2016 under no. 140/2016), CRZ notification of 1991.
The Respondent has failed to prove the points of determination framed by the Authority. The Respondent has failed to prove that all structure in Sy. No. 96/1 of Betalbatim village are legal. Also, the respondent has never produced any approved plan for the structures, or any subsequent approvals obtained from any departments for the construction, extensions/alteration of the structures thereof.
Therefore, the Authority concluded that all the structures present in Sy. No. 96/1 of Betalbatim village are illegal with no prior permission from any of the Competent 5 Authorities. Therefore, Authority resolved to issue demolition order against all the structures (M, N, O AND WC) as shown in the survey plan attached to the Inquiry Committee Report in Survey No. 96/1 of Betalbatim village.
Further, this Authority resolved to direct the Respondent Shri Michael Fernandes c/o M/s Mickey's Bar and Restaurant, to take necessary measures for restoration of Sand Dunes to its original condition, in coordination with the Goa State Bio Diversity Board. All costs for such restoration would be borne by Shri Michael Fernandes c/o M/s. Mickey's Bar and Restaurant. Furthermore, this Authority resolved to issue directions for immediate stoppage of all the commercial activities being carried out by Shri. Michael Fernandes in the name of M/s. Mickey's Bar and Restaurant in Survey No. 964/1 of Betalbatim village. Necessary directions in this regard to be issued to Commissioner, Excise, Director of Tourism, FDA and Commissioner Sales Tax" to withdraw all permission, licenses granted to Shri Michael Fernandes in the name of M/s. Mickey's Bar and Restaurant by following the due process of law."
4. We have heard learned Counsel for the appellant and perused the record. Main contention on behalf of the appellant is that there is no prohibition against reconstruction of an existed authorized structure, not exceeding the permissible FSI. In support of this submission, reliance has been placed on a judgment of this Tribunal dated 29.03.2017 in Appeal No. 67/2016(WZ), Mr. Pritidas M. Sawant v. Goa Coastal Zone Management Authority & Ors. Relevant discussion is quoted below:
" xxx.............................xxx.................................xxx
13. Para 8(III)A(ii) of the CRZ Notification, 2011 reads as under:
(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 1[especially] 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 11 communities 1[especially] fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended 6 by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;
14. Note in Para 8(i) in CRZ Notification, 2011 explains the word "existing" used in the aforesaid provision in following term:
Note:- The word existing used hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 [when the CRZ Notification, 1991], was notified.
15. The Respondent No.1-GCZMA while applying the said provision to the facts and circumstances in the present case ought to have considered whether the permission sought by the Appellant for the proposed development or reconstruction of existing authorised structure exceeded existing FSI, existing plinth area and existing density keeping in mind that nowhere this provision made any utterance about the location save only "within NDZ area in CRZ-III". Pertinently, restrictive term used in the said provision is "not exceeding" but not the term "not beyond". Use of term "not exceeding" restricts quantity of existing FSI, existing plinth area and existing density but not as it would have restricted spatial limit with the use of term "not beyond" - the location in reference to the said phrase. The Respondent No.1 - GCZMA was also expected to consider whether shifting of the location is within NDZ area and such shifting would in any way be invitation to dangers of natural hazards in coastal area or promote sea level rise due to global warming, and further ought to have analysed the entire issue on scientific principles governing the same.
16. As noticed earlier, there has been amalgamation of two contiguous plots into one plot of total area of 606 sq. mtrs and the total area of two plots remained the same vide Area Adjustment Statement enclosed with letter dated 9th January, 2014 of the Inspector of Surveys and Land Record City Survey, Mapusa, Goa, at Annexure 'D' (page 446) to the Affidavit in Reply of the Respondent Nos.2 and 3. The record reveals that construction has shifted in the amalgamated plot in the NDZ area towards landward site. Nothing has been brought to our notice or is apparent from the impugned order to suggest any adverse environmental impact, particularly in terms of the dangers posed to the coastal environment and its marine area. We, therefore, do not see violation or breach of the provisions under para 8(III)A(ii) of the CRZ Notification, 2011 due to shifting of location of the existing construction within the same NDZ area comprising of amalgamated contiguous plots of land, if the proposed reconstruction, as conceived, does not exceed existing FSI, existing plinth area and existing density as it existed on 19th February 1991."
5. While we proceed on the footing that reconstruction is permissible in place of a pre-existing authorized structure, not exceeding the 7 permissible FSI, in the present case, the construction in question is not covered by the said principle. There is nothing to show that previously any authorised structure existed. All the documents relied upon have been found to be post 1991. In the survey plan prepared in 2014 no structure was found in existence. In the sale deed of 1992 and 2010 in respect of the property in question, no structure was mentioned.
Certificate dated 06.01.2016 relied upon by the appellant was also found to be unrelated to the property in question. Document relating to temporary structure relied upon by the appellant were not from any authorized authority but by Village Panchayat. There is an adverse order of the High Court to which predecessor of the appellant was party.
6. In these circumstances, we find it difficult to accept the contentions raised on behalf of the appellant. We do not find any error in the view taken in the impugned order.
7. We may add that GCZMA appears to be working only on the basis of complaints against illegal structures and large number of illegal structures continue to exist inspite of directions of the High Court noted in para 2 above. It may be desirable to have an inventory prepared in respect of such structures based on an independent annual survey, to be updated periodically to avoid selective action against the violations of the CRZ. An effective monitoring mechanism needs to be set up by GCZMA to advance the rule of law.
The Appeal is dismissed except for the observations in para 7 which may be conveyed to the GCZMA by sending a copy of this order by mail.
8In view of order in the appeal, I.A. No. 97/2019 will also stand disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM M. Sathyanarayanan, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM June 29, 2021 Appeal No. 34/2020 (Earlier Appeal No. 55/2019 (WZ)) I.A. No. 97/2019 DV 9