National Green Tribunal
The Goa Foundation vs State Of Goa on 18 August, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
INTERLOCUTORY APPLICATION No. 106 of 2023
IN
ORIGINAL APPLICATION NO. 54 OF 2023
IN THE MATTER OF :
THE GOA GOUNDATION,
Through its secretary, Dr. Claude Alvares,
Age 74 years, having Regd. Office at
Room No. 7, Above Mapusa Clinic,
Mapusa, Goa- 403507
.....Applicant
Versus
1. The State of Goa,
Through its Chief Secretary,
c/o Secretariat,
Porvorim, Goa- 403521
E-mail- [email protected]
2. The Goa Coastal Zone Management Authority (GCZMA)
Through its Member Secretary,
Dempo Towers, 4th floor,
Patto, Panaji, Goa- 403001.
Email Id: [email protected]
3. M/s Fomento Resorts & Hotels Ltd.
Having office at Cidade de Goa,
Vainguinim Beach Goa- 403004,
Email Id: [email protected]
....Respondents
Counsel for Applicants :
Ms. Norma Alvares, Advocate
Counsel for Respondent(s):
Ms. Supriya Dangare, Advocate for R-2/GCZMA
Mr. Parag Rao, Advocate along with
Mr. Shivshankar Swaminathan, Advocate for R-3
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 08.08.2023
Pronounced on : 18.08.2023
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JUDGMENT
1. By this Application, the Applicant has prayed for condoning delay of 3 days in filing of Original Application wherein prayer is made that the Respondent No.1(appears to have been wrongly mentioned as 'Respondent No.1', instead of 'Respondent No.2) be declared to demolish the concrete structure or embankment in its entirety, constructed by the Respondent No.3/Fomento Resorts & Hotels Ltd. across the Vainguinim beach approximately 13-15 metres away from the existing boundary wall from the Respondent No.3/M/s Fomento Resorts & Hotels Ltd.
2. The brief facts of this case, as submitted by the Applicant, are that the present Original Application was filed by the Applicant on 13.04.2023 being aggrieved by the illegal concrete embankment/ structure raised by the Respondent No.3 within the no-development area of the CRZ of Vainguinim Beach, North Goa, which structure has been put up without any permission from the Respondent No.2/GCZMA. The issues regarding the said concrete embankment/ structure were first raised before the Hon'ble High Court of Bombay at Goa in the P.I.L. W. P. No. 29/2022, filed on 21.09.2021, which was disposed of by the Hon'ble High Court of Bombay at Goa by order dated 07.10.2022, relevant portion of which is as follows:
"2. After this petition was heard for some time, we are of the opinion that the issue which are canvassed in this petition are issues which can be effectively agitated before the National Green Tribunal by the petitioner. We accordingly dispose of the petition with liberty to the petitioner to approach the National Green Tribunal.
3. All contentions of the parties are expressly left open."
3. The said order was uploaded on 10.10.2022. The limitation period of six months under Section 14 of the National Green Tribunal Act, 2010, therefore, would begin from 10.10.2022 and would end on 10.04.2023 while present Original Application has been filed by the Applicant on 13.04.2023 with delay of three days.
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4. Further, it is mentioned that the Director of the petitioner organization, who was the authorized signatory and was conversant with this particular matter, suffered a heart attack in the third week of October 2022 and was advised complete rest for a period of three months. On 10.04.2023, it was realized that copies of some of the maps and photographs, which the Applicant wanted to annex to this Original Application were inadvertently damaged and had to be redone. Thereafter, the applicant had to ask its Architect to locate and work on these maps, which took 2 days i.e. 11th April and 12th April 2023. The O.A. has been filed on the very next day, i.e. 13th April 2023. The Applicant has been diligently pursuing matters relating to public access to the Vainguinim Beach in public interest right from 1998 onwards, who was a Petitioner/ Respondent in cases filed before the Hon'ble High Court of Bombay at Goa and the Hon'ble Supreme Court when attempts were made previously by Respondent No.3 to privatize the beach and deny public access to the said beach. The Applicant has also relied upon the judgment of the Hon'ble Supreme Court in Vedabai Patil Vs. Baburao Patil, (2001) 9 SCC 106; Collector, Land Acquisition Vs. Katiji, (1987) 2 SCC 107 and of this Tribunal in M.A. No. 262/2015 in Appeal No. 96/2015 (Wireless Colony Co-op. Housing Society Vs. Government of Maharashtra), wherein condoning small delay is not held to be prejudicial and that a liberal approach should be adopted by this Court in condoning the delay. It is also held in these cases that when the substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred.
5. From the side of Applicant, additional affidavit dated 14.07.2023 has been filed where-in it is submitted that this Tribunal had expressed while hearing on the issue of limitation on 26.04.2023 that a clarification would be required from the Hon'ble High Court of Bombay at Goa regarding the time spent by the Applicant before the Hon'ble High Court in pursuing the grievances relating to the construction in question. Page 3 of 14 Accordingly, the Applicant moved an M.C.A No. 196/2023 before the Hon'ble High Court of Bombay at Goa in which an order has been passed on 07.07.2023 which is annexed as Annexure I. The said order is quoted hereunder:
"1.Heard.
2. This is an application for modification of the order dated 07.10.2022 with a prayer to include a direction in respect of limitation.
3. On 07.10.2022, this court disposed of the Public Interest Litigation by passing the following order:
"PC :
Permission to delete respondent No.5. Amendment to be carried out forthwith.
2. After this petition was heard for some time, we are of the opinion that the issues which are canvassed in this petition are issues which can be effectively agitated before the National Green Tribunal by the petitioner. We accordingly dispose of the petition with liberty to the petitioner to approach the National Green Tribunal.
3. All contentions of the parties are expressly left open.
4. Disposed of accordingly.
5. No costs.
4. Learned counsel for the applicant- Goa Foundation, Ms. Norma Alvares, for the reason stated in the application, urged that as there was no specific observation as regards the limitation in respect of the period spent in prosecuting the petition, there is some difficulty faced by the petitioner before the National Green Tribunal (NGT) on the aspect of delay. Hence the application.
5. The application is vehemently opposed by Shri Rao, learned counsel for the respondent nos. 4 and 5. Placing reliance on the decision of the Supreme Court in the case of Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Ors., the learned counsel emphasized on paragraph 12 thereon in support of his submissions. Paragraph 12 reads thus:
"12. The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to Page 4 of 14 a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification, clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what are cannot do directly ("Quando aliquid prohibetur ex directo, prohibetur et per obliquum")
6. Reliance is also placed by learned counsel on the decision of the Supreme Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors., more particularly paragraphs 40 to 41 in support of his submission that the petitioners were well aware that the subject matter of the Public Interest Litigation petition pertains to the jurisdiction of the NGT and, therefore, the proceedings prosecuted before this court were not bonafide. It is also submitted by Shri Rao that the petitioners have filed several petitions in this court wherein they have been directed to avail the remedy provided under the NGT Act, hence apart from the fact the present application is not maintainable, it is submitted that this application is not bonafide. A grievance is made by Shri. Rao that he has not been sufficiently heard in the present application.
7. We are of the opinion that considering the nature of request made, the application deserves to be allowed in the interest of justice. The petitioner had approached this court by way of Public Interest Litigation. This court while disposing of the Public Interest Litigation, was of the opinion that the issues which are canvassed in this petition are issues which can be effectively agitated before the NGT by the petitioner. In this light of the matter, the petition was disposed of with liberty to the petitioner to approach the NGT. All contentions of the parties were expressly left open.
8. Once this court has observed that the issues raised in the petition can be effectively agitated before the NGT by the petitioner, as a result of which the petitioners were directed to approach the NGT, it goes without saying that the petitioners were pursing the petition bonafide before this court. We are inclined to observe that the period spent in prosecuting the petition was bonafide and the period spent in bonafide prosecuting the present petition needs to be sympathetically considered by the Tribunal while deciding the issue of limitation.
9. Whether the proceedings before the NGT are bonafide or not, is a contention the petitioner can raise before the NGT which can be considered on its own merits as this court has already left all contentions of the parties open.
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10. In our opinion, the observations which we are inclined to make while disposing of the Misc. Civil Application, do not amount to a modification of a judicial pronouncement.
11. The application is disposed of."
6. From the side of Respondent No.3/M/s Fomento Resorts & Hotels Ltd. (PP), reply affidavit dated 17.07.2023 has been filed, where-in it is submitted that it has wrongly been submitted by the Applicant that there is delay of only three days for filing the O.A. despite the fact that there is delay in the present matter which is more than 540 days because the Applicant has been litigating before this Tribunal at least since the year 2012. It is wrongly being said by the Applicant that the construction of the wall started sometime in the months of April and May 2021, without any approval from the Goal Coastal Zone Management Authority (GCZMA).
7. The said retaining/ linear wall has been existing as a natural feature for the last 100 odd years. The Respondent No.2/GCZMA in a previous round of litigation, being in Writ Petition No. 245/2007, had placed a report dated 07.06.2007 on record, of the Hon'ble High Court that the retaining wall was existing prior to the year 1991. The Respondent No.2/GCZMA also had filed a report on 24.08.2015 to the effect that the linear/ retaining wall was in existence from the time the hotel was constructed and eventually the GCZMA, vide order dated 22.01.2016, had held that the structures were in existence prior to CRZ Notification, issued in the year 1991 and accordingly the same was legal. Despite this fact, the Applicant has brazenly made false statement that the said structure was constructed in the months of April-May 2021. The condonation of delay being a discretionary relief, needs to be allowed only if the Applicant comes with clean hand, which is not the case herein.
8. Further, it is mentioned that Applicant had participated in the proceedings initiated by the Respondent No.2/GCZMA in respect of the said structure pursuant to the complaint filed by Vainguinim Valley Residents Association. The Show-Cause Notice was issued by the Respondent Page 6 of 14 No.2/GCZMA on 28.04.2021 wherein the Applicant participated and was heard. Further, it is mentioned that the Writ Petition No. 1187/2021(F) was filed by Vainguinim Valley Residents Association prior to the filing of P. I. L. Writ Petition No. 29/2022 by the Applicant before Hon'ble High Court. The Writ Petition No. 1187/2021(F) was disposed of on 11.02.2022, a copy of which was provided to us during the hearing through the E-mail.
9. The said order of Hon'ble High Court reflects that the Vainguinim Valley Residents Association, through its President had raised a grievance that Respondents- GCZMA and others were not acting upon representations and complaints made by the Petitioners with regard to the alleged illegal construction being carried out at Vainguinim Beach. Therefore, it was prayed that the Respondent No.6 (in that writ petition) ought to be restrained from carrying out the alleged illegal construction. During the pendency of the writ petition, it was apprised before the Hon'ble High Court that the hearing was going on by the GCZMA in the matter and subsequently before passing of this order, the order passed by the GCZMA dated 14.10.2021 discharging the Show Cause Notice was provided to the Hon'ble Court. Thereafter the Hon'ble High Court held that the petitioners can now avail of appropriate remedies with respect to the order dated 14.10.2021 passed by the GCZMA before the National Green Tribunal under Section 16 of the National Green Tribunal Act 2010.
10. The learned counsel for the Respondent No.3/Fomento Resorts & Hotels Ltd. vehemently stressed that the proceedings held by the GCZMA, in which order dated 14.10.2021discharging the Show Cause Notice to the Respondent No.3, was very much in the knowledge of the present Applicant as its complaint had also been dealt with by the GCZMA by that order dated 14.10.2021. Therefore, even if the applicant was not a party to the above Writ Petition No. 1187/2021 (F), it does not mean that the Applicant was not knowing about the order dated 14.10.2021 having been passed by the GCZMA and it is pointed out that a copy of the order of GCZMA, which Page 7 of 14 is annexed at Page No. 248 to 256 of the paper book, was also endorsed to the Applicant in the present case.
11. Further, it is mentioned in the said affidavit that the PIL Writ Petition filed by the Applicant before the Hon'ble High Court was in respect of the same very structure which was subject matter of Writ Petition No. 1187/2021 (F). Despite being aware that the petition in respect of the alleged construction would only lie before this Tribunal, the Applicant filed the PIL Writ Petition before the Hon'ble High Court on 20.09.2021. Further, it is mentioned that the inspection was admittedly conducted by the GCZMA on 20.04.2021. Therefore, the alleged construction was to the knowledge of the Applicant at least from 20.04.2021.
12. Further, it is mentioned that even if 28.04.2021 is taken as the date, which was the date for the issuance of Show Cause Notice to the Respondent No.3, 144 days were allowed to elapse by the Applicant even before filing the above Writ Petition before the Hon'ble High Court. Further, it is mentioned that the period between 20.09.2021 to 07.10.2022 i.e. the period for which the Applicant kept pursuing the matter before the Hon'ble High Court was not directed to be excluded by this Tribunal, by the Hon'ble High Court when it disposed of the petition before it on 07.10.2022. The Hon'ble High Court, in its order dated 07.10.2022, has made it clear that all the contentions of the parties were kept open which includes objections to be raised on the ground of limitation which is available to the Respondent No.3. In view of there being no clear direction from Hon'ble High Court to exclude above mentioned period for the purposes of counting limitation, the said period between 20.09.2021 to 07.10.2022 should not be excluded.
13. Further, it is mentioned that the petition was pending before the Hon'ble High Court for 382 days and thereafter adding the period of 144 days to the same, delay comes to 526 days on the date of filing of this Application. Further, it is mentioned that even after passing of the order by the Hon'ble High Court on 07.10.2022, the Applicant has approached this Page 8 of 14 Tribunal only on 13.04.2023, therefore from 07.10.2022 till 13.04.2023, 176 days elapsed. If this period of 176 days is added to the delay computed above, the total delay would come to stand at 702 days.
14. Further, it is mentioned that since the period of six months would be counted from 20.04.2021, the limitation for filing the O.A. would end on 19.10.2021. Over and above that, this Tribunal could condone delay upto 60 days more only, which would also end on 19.12.2021. Therefore, this Application having been filed on 13.04.2023, would be treated to be barred by a delay of 540 days, if said delay is counted from 19.12.2021. Hence, this Application deserves to be dismissed being time barred.
15. We have heard the learned counsel for the parties and perused the record.
16. We find from the record that a complaint was made by Bhanu Shirodkar regarding alleged illegal construction & development being carried out within the CRZ & NDZ by the Respondent No.3 Owners/ Management of Fomento Resorts, which was dealt with by the Respondent No.2/GCZMA by order dated 14.10.2021. During the hearing of that matter, the Applicant in the present O.A. also appeared before the GCZMA as a complainant and argued before the GCZMA that the survey plan given by the Expert Committee and DSLR be compared. On comparison, it does not show the structure in question. This having been pointed out during argument, it was argued by the learned counsel for the Respondent No.3 that the Applicant of the present O.A. had appeared before GCZMA in pursuance of the complaint made by the them and full arguments were placed before the GCZMA and thereafter the GCZMA discharged the Show Cause Notice issued to the Respondent No.3 by the impugned order. In this order it is also held by the GCZMA that alleged construction, is said to have taken place in NDZ area, there was no substance found in the said allegation and that the linear wall was found to be existing prior to 1991. Therefore, repairs were permissible to the existing structure which was in Page 9 of 14 existence prior to 1991 and the GCZMA had given permission for the same on 25.07.2017.
17. We find from the record that while the above order was passed by the GCZMA on 14.10.2021, it appears, prior to that, already Vainguinim Valley Residents Association had approached the Hon'ble High Court of Bombay at Goa in Writ Petition No. 1187/2021 (F) seeking direction to be issued to the GCZMA and other government authorities to proceed against alleged illegal construction being done at Vainguinim Beach by the Respondent No.3. During the hearing before the Hon'ble High Court, it had been appraised that before the GCZMA, this matter was already under consideration and during the course of the hearing and passing of the order by the Hon'ble High Court, the GCZMA had passed an order dated 14.10.2021 discharging the Show Cause Notice against the Respondent No.3. Therefore, it is apparent that the Applicant of the present case having been issued notice by the GCZMA while passing an order dated 14.10.2021, had full knowledge about the discharge order dated 14.10.2021 passed by the GCZMA, against which the Hon'ble High Court has held in order dated 11.02.2022 that an Appeal would be maintainable before the National Green Tribunal (NGT). Therefore, when any plea was to be brought with respect the structure in question allegedly raised by the Respondent No.3 on Vainguinim Beach illegally, the said order dated 14.10.2021 ought to have been challenged in the appeal by the Applicant, which has not been done, instead of that, the Applicant has chosen to file an O.A. under Section 14 of the NGT Act, in order to take benefit of getting larger period of limitation.
18. Even if we consider that the O.A. may be filed by the Applicant, the same has been filed on 13.04.2023 after the Hon'ble Bombay High having passed an order on 07.10.2022, which is said by the Applicant to have been uploaded on 10.10.2022, therefore the Applicant has calculated six months' period of limitation from 10.10.2022 onward which, according to the counsel for the Applicant, would expire on 10.04.2023 and therefore it is Page 10 of 14 submitted by the Applicant that only three days delay in the filing of the present Original Application which may be condoned on the grounds mentioned above of illness of the Applicant counsel.
19. In this regard, it may be noted here that the Hon'ble High Court vide order dated 7th July, 2023, has though held that the Petitioner/ Applicant was pursuing the said petition bonafidely before it, therefore, the period for which it remained pending before the Hon'ble High Court should be considered sympathetically but it has left the matter of bonafide to be decided by this Tribunal on merits.
20. We are convinced from the arguments made by the learned counsel for the Respondent No.3 that the Applicant had full knowledge about the order dated 14.10.2021 passed by the GCZMA whereby the discharge order was passed in respect of the same structure, in respect of which an appeal should have been filed instead of the present O.A. because the Applicant had also filed a complaint in that regard before GCZMA. The Applicant itself has stated in Para-12 of the O.A. that it had written letters to the GCZMA on 21.04.2021 to remove the offending structure. Therefore, knowledge of that structure would be imputed to the Applicant on that date and therefore first cause of action would be treated to have arisen from said date i.e. 21.04.2021.
21. If we take into consideration the exemption of the limitation period granted by the Hon'ble Supreme Court in Miscellaneous Application No. 21 of 2022 vide order dated 10th January 2022 from 15.03.2020 to 28.02.2022 to be excluded for the purposes of counting limitation period, in the case in hand, the limitation would be counted from 01.03.2022 which would expire on 30.08.2022 (for six months period). Thereafter, even if we exercise discretion of two months further, even that period would expire on 30.10.2020. Therefore, in this manner if the counting is done, then too the present O.A. stands barred by limitation.
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22. We may rely upon the judgment of Hon'ble Supreme Court in Civil Appeal No. 3136 of 2020 in Sridevi Datla Vs. Union of India 2021 (5 SCC 321) wherein in para-27 following is held:
"Yet another dimension to the issue was highlighted in Maiben Devraj Shah Vs. Muncipal Corpn. Of Brihan Mumbai (2012) 5 SCC 157, where the court underline a distinction between a case where the delay is inordinate, and a case where the delay is of few days and that in the former case the consideration of prejudice to the other side will be a relevant factor; in the latter case, No such consideration arises. After noticing that a liberal and justice-oriented approach needs to be taken, it was stated that the court, equally should be sensitive to the fact that "the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost." The court then held that:
"24. What colour the expression „sufficient cause‟ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
Relying upon the above position of law, we are of the view that Respondent No.3 has already contested the matter in the Hon'ble High Court and till that stage, the structure in question was not held to be illegal, therefore a right has accrued to the Respondent No.3 on the basis of the judgment / order which remained unchallenged for a long time. Therefore, we have also to consider the right of successful litigant (Respondent No.3 herein) in this regard.
23. We find that the above ruling is fully applicable here because by lapse of time, a right has accrued in favour of the Respondent No.3 which should not be taken away by liberally granting the condoning delay in the present matter.
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24. The learned counsel for the Applicant vehemently argued that she had approached the Hon'ble High Court because she did not press for CRZ violation rather she was pressing before the Hon'ble High Court the issue of Public Trust Doctrine, because the act of Respondent No.3 having raised the construction/wall was prohibiting general public free access to the beach but later on it was realized by the Hon'ble High Court that even matter covered by the Public Trust Doctrine could be taken up before the NGT, because of which the Hon'ble High Court has directed applicant to approach the Tribunal. We are not inclined to accept this argument made by the learned counsel for the Applicant because the Public Trust Doctrine can always be pressed before this Tribunal, that is settled position of law from beginning. Learned counsel for the Applicant, being such senior counsel cannot be taken to be not knowing this. We may also highlight here that the relief which was prayed before Hon'ble High Court was similar which is being prayed before us. We have already given our opinion above that in the matter in hand it was Appeal which was required to be filed before the Tribunal against the order passed by GCZMA dated 14.10.2021.
25. As regards bonafides of the Applicant, we would like to mention that the Applicant was fully aware of the alleged illegal construction having been held to be legal by GCZMA by order dated 14.10.2021 and that the Appeal was maintainable against that order before this Tribunal but even then the Appellant chose the forum of Hon'ble High Court and continued to contest there for a long time, which is now being prayed to be excluded from being counted while calculating the limitation. The same does not appear to be bonafide approach of the Applicant. The Applicant could have straight-away filed an appeal before us soon after the order was passed by the GCZMA dated 14.10.2021. Therefore, we are not convinced about the bonafides of the Applicant in this matter.
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26. We reject I.A. No.106/2023 and consequently Original Application No.54/2023 is dismissed as time-barred.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM August 18, 2023.
Interlocutory Application No. 106 of 2023 In Original Applicatioin No. 54/2023.
Sachin J.
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