National Green Tribunal
Mrs. Linet Nunes W/O Simon Lobo vs Goa Coastal Zone Management Authority on 6 September, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Appeal No. 48/2016 (WZ)
M.A.No.212/2016 (WZ)
Mrs. Linet Nunes Appellant
Versus
GCZMA & Ors Respondent(s)
Date of hearing: 06.09.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant: Mr. Hufeza Ahmadi, Senior Advocate with Mr. Shivan Desai & Mr.
Sivshankar Swaminathan, Advocates
Respondent: Ms. F.M. Mesquita, Advocate For R.1.
Ms. Jayant Kalbhor, Advocate For R. 7.
ORDER
1. This appeal has been preferred against the order of the Goa Coastal Zone Management Authority (GCZMA) dated 21.07.2016 under Section 5 of the Environment (Protection) Act, 1986 (EP Act) directing demolition of structures constructed illegally in 'No-development Zone' in CRZ-III in violation of CRZ Notification, issued under the EP Act. Operative part of the order is reproduced below:-
"NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 2264 (E) dated 22/07/2014 issued by the Ministry of 1 Environment & Forests, Government of India, the GCZMA hereby directs:
i) Closure of all commercial activity in the form of Night club, Bar & Restaurant being run by Edwin Nunes and Linet Nunes, Both R/o Curlies Restaurant and Night Club And Guest house, St. Michael Wado, Dando, Anjuna, Bardez-Goa in the structure standing in the property bearing Sy. No. 42/10 with further extensions in the adjacent plots / properties bearing Sy. Nos.
42/9, 11, 45/19, 45/41 of Village Anjuna, Bardez -- Goa forthwith.
ii) The Commissioner of Excise Department to withdraw the Excise license granted to Edwin Nunes and Linet Nunes for sale and consumption of liquor in the Curlies Night Club, Bar & Restaurant within a period of 30 days.
iii) The Chief Electrical Engineer, Electricity Department to disconnect the power supply connection to the said structure i.e. Curlies Night Club, Bar & Restaurant.
iv) The Chief Engineer, Public Works Department (PWD) to disconnect the water supply connection to the said structure i.e. Curlies Night Club, Bar & Restaurant.
v) The Secretary, Village Panchayat of Anjuna, to withdraw the Trade License to the activity carried out in the said structure i.e. Curlies Night Club, Bar & Restaurant and further to ensure its compliance.
vi) To demolish the illegal structure standing in the property bearing Sy. No. 42/10 of Village Anjuna, Bardez -- Goa having further extended in the adjacent plots / properties bearing Sy. Nos. 42/9, 11, 45/19, 45/41 of Village Anjuna and. restore the land to its original condition, within 15 days from the date of receipt of this direction failing which the Dy. Collector & S.D.O, Bardez-Goa to verify if the illegal structure standing in the property bearing Sy. No. 42/10 of Village Anjuna, Bardez -- Goa having further extended in the adjacent plots / properties bearing Sy. Nos. 42/9, 11, 45/19, 45/41 of Village Anjuna are removed I demolished and in the event it is not removed as per these directives, then the Deputy Collector & S.D.O of Bardez to remove the illegal structure standing in the property bearing Sy. No. 42/10 of Village Anjuna, Bardez -- Goa having further extended in the adjacent plots / properties bearing Sy. Nos. 42/9, 11, 45/19, 45/41 of Village Anjuna thereafter within a time period of two weeks thereafter and recover the expenses incurred from Edwin Nunes and Linet Nunes, as the arrears of land revenue. Further, Edwin Nunes and Linet Nunes arc required to submit a compliance report in respect of compliance or afore stated directions to the GCZMA within next 3 days of expiry of the aforementioned 15 days time period." 2
2. The impugned order shows that complaint dated 17.08.2015 was filed against the illegal construction of a restaurant and a night club in property bearing Sy. No. 42/10 and extension of the structures up to the adjacent properties bearing Sy. Nos. 42/9 and 42/11 at H. No. 774/2, St. Michael waddo of Village Anjuna, Bardez -- Goa carried out by Edwin Nunes.
3. On receiving the complaint, show cause notice was issued by the GCZMA to the appellant and in the light of reply filed, an enquiry was conducted. Report dated 03.02.2016 was submitted by the Deputy Collector/SDO which was contested by the complainant before the GCZMA as also by filing O.A No. 06/2016, Kashinath Jairam Shetye & Anr. v. Edwin Nuns & Linet Nunes Curlies Restaurant & Ors., before this Tribunal. The Tribunal disposed of the matter on 18.03.2016 with a direction to the GCZMA to provide opportunity to the complainant to contest the report. The matter was thereafter further considered by GCZMA and a decision was taken to conduct re-inspection in the light of objections of the complainant.
4. After re-inspection on 15.07.2016, further report was submitted which was against the appellant. It found illegal constructions of permanent nature in violation of CRZ Notification, 2011. GCZMA accepted the report and held that the structures in existence were not of temporary nature and were constructed post 2003. The same were not being reflected in the Google image of 2003. Plea that the structures in question existed prior to 1991 was rejected. The finding is as follows:-
"AND WHEREAS, the Expert Members who conducted the site inspection stated that the structure under reference standing in the .property bearing Sy. No. 42/10 of Anjuna Village cannot be called as a temporary structure and the same is permanent in nature with a cemented plinth, wooden floor; steel pipes 3 used as columns which support the top floor. The Expert Members also brought to the notice of the Authority that thought the G-1-1 Structure is constructed / erected in Sy. No. 42/10 it has been extended in the adjacent plots covering Sy. Nos. 42/9, 11, 45/19 and 45/41. The Google images of 2003 also does not show any structure in the, said property existing in 2003. Therefore, it is apparent that said structure is new and has been constructed in violation of CRZ Notification right on the High Tide Line of the sea.
AND WHEREAS, it was further discussed that the onus of proving that the structure existed prior to 1991 is on the Respondent and as it existed in NDZ area the Respondent also needs to give evidence of the existence of the commercial activity in the said structure i.e. Night club. Bar & Restaurant prior to1991.
AND WHEREAS, further, the Respondent is operating commercial activity in the structure and he is required to have Bar license to sell liquor, trade license of Panchayat, Commercial tax registration, Shops and Establishment license etc. The Respondent should have produced all those licenses/ permission as proof of the existence of the structure prior to 1991. However, the Respondent has not produced any evidence in support of the same.
AND WHEREAS, also the Respondent is operating a big Night Club, Bar & Restaurant which also has electricity connection which could also have proved its existence prior to 1991. However, the Respondent did not produce any evidence in this regard.
AND WHEREAS, in view of non production of any evidence supporting the existence of commercial activity prior to 1991 in the said structure can safely be drawn as an adverse inference which clearly establishes that the commercial activity of Night club / Bar & Restaurant came into operation in the said structure post 1991 i.e after coming into force of the CRZ Notification, 1991."
5. We have heard Shri Hufeza Ahmadi, Senior Advocate for the appellant and perused the record. Shri Ahmadi submitted that after submission of the second inspection report, the appellant was not given any opportunity of being heard. Construction existed prior to 1991 as shown by the certificate of the village Panchayat dated 15.12.1980 to the effect that the owner had intention to run a restaurant in survey No. 42/10, receipts of house tax dated 02.01.1991 and 06.01.1992 issued by Panchayat, earlier report submitted to GCZMA by the SDO, based on report of the Mamlatdar. Finally, it is submitted that, the factual position has been summed up in the report of the Inquiry Committee as follows:- 4
"11. Considering that N.O.C for repairs/ renovation of the existing structure (Annexure A) is of the year 1982; that the registration of the house no. 774/2 (Annexure B) for the purpose of house and light tax is from the year 1983-84; that the receipts of payment of house taxes (Annexure C Colly) are of the years 1991-1992, 1995; that the GAT Book (Annexure E Colly) shows the existence of an old structure of 242 sq.mts, the structure of the restaurant Curlies having an area of 242 sq.mts. in Sy.No. 42/10 and 42/11 of Village Anjuna, was existing prior to the date of CRZ Notification 19-02-1991. The GCZMA. to withdraw the show cause notice cum stop work order dated 31-38- 2015 of Edwin Nunes (affected party-1) and the show cause notice cum stop work order dated 01-10-2015 of Linet Nunes (affected party-
2)"
6. Opposing the above, learned counsel for the GCZMA submits that the appellant did not appear at the time of second inspection conducted on 15.07.2016 by the expert members of the GCZMA and did not seek opportunity to contest the same. Documents relied upon, including the earlier enquiry report, were rejected by the GCZMA for valid reasons. Order for second inspection was passed after considering the application inter alia submitting that in the year 2004, the earlier structure was demolished on directions of the High Court. The appellant raised fresh constructions. As per re-survey carried out by the GCZMA on directions of the Bombay High Court in W.P No. 422/1998, no structure was found on existence in the year 2008. The relevant discussion in this regard is as follows:-
"Mr. Kashinath Shetye stated that there was a small structure existed earlier however, the Hon'ble High Court of Bombay at Goa somewhere in 2004 had passed an Order for demolition of the structure under reference and the same was demolished accordingly. That his complaint with respect to the illegal construction carried out in Sy. No, 42/10 which further extended in the adjacent properties bearing Sy. Nos. 42/9, 11 and 41 of Village Anjuna, Bardez -- Goa. Even in 2008 when the resurvey was carried out by the GCZMA through RSI in view of the directions of the Hon'ble High Court of Bombay at Goa in W. P. No. 422/1998 there existed no structure. Even if the house was there no permission has been obtained from the GCZMA and that no Restaurant existed earlier. The construction is carried out right on the Anjuna beach and on the sand dune and the same is CRZ -- I area."5
7. We have given due consideration to rival submissions. We do not find any merit in the appeal and there is no ground to interfere with the impugned order. Documents relied upon by the appellant at best show that NOC was granted by the Panchayat in respect of some construction in Survey No.42/10. House tax receipts also show the same. These are the basis of earlier enquiry report and report of SDM. The same were rejected and fresh report submitted for the reasons noted above.
8. Question is whether structures now found are the same which existed prior to 1991 in respect of which NOC was given by Panchayat or house tax receipts were issued. Answer is 'no'. The nature of structure as at present is permanent construction, beyond the original temporary construction limited to Survey No. 42/10. Present constructions extend to Survey No. 42/9, 11, 45/19, 45/41. Though learned senior counsel submits that only structure in Survey No. 42/10 belongs to the appellant and other structures do not belong to the appellant. The fact remains that all the constructions are found to be occupied by the appellant. Even construction in survey no. 42/10 is not pre 1991. Fresh construction has been raised in replacement of original one for commercial purposes, without requisite permission in no development zone.
9. We thus do not find any merit in the Appeal which is accordingly dismissed.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM 6 Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM September 06, 2022 Appeal No. 48/2016 (WZ) M.A.No.212/2016 (WZ) AB 7