National Green Tribunal
M/S. Shree Par Fragrance Through Its ... vs Goa Coastal Zone Management Authority ... on 25 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Appeal No.63/2016(WZ)
M.A. 287/2016 (WZ) & I.A. No.156/2023(WZ)
IN THE MATTER OF:
M/s. Shree Par Fragrance
Through its Director,
Mr. Rajiv Bhat,
Son of Mr. Ashok Bhat,
Office at: Farenheit Hotel, S. No.239/15 &
239/16, Cobrawado, Calangute, Goa- 403 516.
.....Appellant
Versus
1. Goa Coastal Zone Management Authority,
C/o Department of Science, Technology &
Environment, Government of Goa,
3rd floor, Dempo Towers,
Patto, Pajani, Goa- 403 001.
2. Mr. Floriano Lobo
R/o H. No.173, Pirzona, Moira,
Bardez, Goa- 403 507.
.....Respondent(s)
Counsel for Appellant(s):
Mr. Satyan Vaishnav, Advocate along-with Mr. Gaurish Agni,
Advocate and Mr. Shivshankar Swaminathan, Advocate
Counsel for Respondent(s):
Ms. Supriya Dangare, Advocate for R-1/GCZMA
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh(Judicial Member)
Hon'ble Dr. Vijay Kulkarni(Expert Member)
Reserved on : 28.07.2023
Pronounced on : 25.09.2023
JUDGMENT
Appeal No.63/2016(WZ) Page 1 of 19
1. This appeal has been preferred against the order of GCZMA/respondent No.1 dated 21.07.2016, which has been prayed to be quashed on several grounds, which are enumerated in para nos. (I) to (XXIX) in the memo of appeal.
2. In order to keep the Judgment brief, we deem it appropriate to take the facts of this case, which are enumerated in the impugned order itself which it is prayed to be set aside, instead of from the pleadings.
3. The complaint dated 02.02.2015 was made by respondent No.2/Mr. Floriano Lobo against the appellant regarding illegal construction of a Hotel by M/s. Shree Par Frangrance Pvt. Ltd./respondent No.1 in the property bearing Survey Nos.239/15 & 239/16 of Village: Calangute, Bardez, Goa.
4. It is further mentioned in the impugned order passed by the respondent No.1/GCZMA that a Writ Petition bearing No.09/2015 was filed subsequently by the same respondent before the Hon'ble High Court of Bombay at Goa challenging the alleged illegal construction carried out by the respondent No.1 in the said Survey Number, which was heard by the Hon'ble High Court on 20.10.2015 and found appropriate to call the GCZMA to visit the subject property and submit a report as to whether the subject construction is existing at the site or not. Pursuant to that order, an inspection was carried out by an Expert Member of GCZMA on 26.11.2015 and submitted its report in brief as under:-
a). The present hotel building does not have the required setback,
b). A paved pathway is observed right up to the beach,
c). The original dune field is obliterated,
d). A permanent structure made of plywood and covered by sheets is found about 50 mtrs. from HTL hence in NDZ,
e). A kind of a stage with steel poles is built close to the HTL
f). The frontal dunes are severely degraded."Appeal No.63/2016(WZ) Page 2 of 19
5. It is further mentioned in the impugned order that at the time of inspection, the parties present at that time had decided and agreed for a fresh survey to be conducted to accurately mark and superimpose the existing G+1 building with/ on the structure shown in DSLR plan and accordingly, the re-inspection of the site was carried out on 23.12.2015 and 28.12.2015 by the Expert Member of GCZMA along-with the representatives from the Office of Directorate of Settlement and Land Records (DSLR) and other concerned parties and submitted its report as under:-
"a). That the structures are located in the NDZ area and violated the norms of CRZ Notification, 2011.
b). The extended structure (hotel) beyond the 200m limit does not seem to have maintained adequate setbacks from the plot boundary; the approvals of this building may have to be probed further with respect to the TCP Rules."
6. Based on the above site inspection report, a Show Cause Notice dated 15.01.2016 was issued by the Office of respondent No.1/GCZMA to the appellant with a direction to show cause as to why a direction to demolish the structures specified therein and restoration of the land to its original condition be not issued.
7. Thereafter, the matter was considered by the Hon'ble High Court on 25.01.2016, which disposed of the above-mentioned Writ Petition vide order dated 25.01.2016 with a direction to the GCZMA to decide the said Show Cause Notice after hearing the parties concerned, in accordance with law within a period of three months.
8. Thereafter, the respondent No.1/GCZMA was also in receipt of a reply to the said Show Cause Notice, filed by the appellant. Pursuant to the order of Hon'ble High Court cited above, the respondent No.1 held its Meeting on 29.03.2016 for grant of personal hearing to the parties. In that hearing, respondent No.2 pointed out that the order dated 15.12.2008 (annexed at Appeal No.63/2016(WZ) Page 3 of 19 page nos.32 to 35 of the paper book) passed by the respondent No.1 legalizing all the structures was improper. From the side of appellant, it was stated that mapping/demarcation of CRZ line was not carried out properly and that the structure under reference were constructed in the year 1992 with prior permission of the GSCCE (predecessor authority of the GCZMA) as per the demarcation line of the Naval Hydrographic Office (NHO) and that whether the existing structure was within 200 mtrs. of HTL or beyond that, the same has to be considered as per earlier NHO demarcation line and current maps prepared by the DSLR were required to be superimposed on the map prepared by the NHO for the verification of the said fact.
9. The respondent No.1 after having discussion and due deliberation and after having heard the parties concerned, decided to conduct re-inspection of the site in question along-with the officials of the Directorate of Land & Survey Records (DSLR) so as to verify the demarcation of the High Tide Line and also decided to carry out thorough verification of all the documents available in the office records so as to clarify on the various discrepancies raised by the respondent No.2/Complainant in respect of the earlier order of respondent No.1/GCZMA dated 15.12.2008.
10. Thereafter, the re-inspection of the site in question was conducted on 21.04.2016 by the Expert Member of GCZMA and its report was submitted as follows:-
"A site inspection was carried out on 26.11.2015 in S.No.239/15 of VP Calangute, based on a complaint of Mr. F. Lobo. The complainant and a surveyor from DSLR were present. A site inspection report was submitted on 27.11.2015."
11. The above paragraph in the impugned order does not appear to be in accordance with the paragraph just above that where-in it is mentioned that the Expert Member of the GCZMA conducted an inspection of the site on Appeal No.63/2016(WZ) Page 4 of 19 21.04.2016 because the above paragraph "discloses the date of inspection to be 26.11.2015", therefore, this error in this order was noted.
12. Further, it is found mentioned in the impugned order that it was again decided that fresh survey was necessary to accurately mark and superimpose the existing G+1 building with/ on the structure shown in DSLR plan. Accordingly, a site survey was carried out by DSLR officials and a report with coloured plan dated 05.01.2016 showing old and present structures was submitted by DSLR to GCZMA. A second inspection report after the survey by DSLR was forwarded on 12.01.2016.
13. Further, it is found mentioned in the impugned order that in the meeting by the respondent No.1/GCZMA on 29.03.2016, the property owners raised some queries regarding the accuracy of the survey plan/ map. As such, a third inspection was done on 21.04.2016 by the respondent No.1/GCZMA along-with a DSLR surveyor. The Officials of DSLR re-checked the plan of 05.01.2016 but did not find any error/ changes in the survey. Therefore, the DSLR plan of 05.01.2016 is still valid. On the basis of Map, following is found to be the position:-
"Within 0-200 m from HTL - NDZ: A. A wooden platform with permanent vertical steel pipes along / close to the HTL, B. A conference hall that occupies the entire width of the plot, located on the pioneer dune, about 30-40 metres from HTL. C. A rectangular tiled portion adjacent to / landward of the Conference Hall, D. A tiled pathway that leads eastward, towards the interior of the plot, E. Another tiled surface and a swimming pool close to the 200 m line, F. An intervening open strip that is marked by gardens, G. It appears that a part of the Conference Hall crosses the seaside and the northern boundary of the plot."
14. Further, it is found mentioned in the impugned order that between 200-500 mtrs. from HTL: a) The survey identified a new structure in addition/ an extension of the one that existed earlier and shown on DSLR plan; b) The western tip of the elongated building has encroached into the NDZ by about 7-8 mtrs.; and c) A STP is located at the eastern extremity of Appeal No.63/2016(WZ) Page 5 of 19 the plot. Further, it is recorded that 1) All the structures described above and particularly those located in the NDZ (0-200 mtrs. from HTL) have violated the CRZ- 2011 norms given in Annexure- III of CRZ Notification; 2) The extended structure (hotel?) located beyond the 200 mtrs. limit did not seem to have maintained adequate setbacks from the plot boundary; the approvals of this building may have to be probed further with respect to the TCP Rules. The above details with respect to the structures are being attributed to the site inspection report dated 29.06.2016, which though is stated to be annexed as Annexure A-II but the same is not found annexed, so we cannot verify it.
15. Further, it is found mentioned in the impugned order that the same report of inspection dated 29.06.2016 was considered by the GCZMA in its meeting dated 06.07.2016 for grant of personal hearing to the parties. In this proceeding, Mr. Floriano Lobo/respondent No.2 was present in person, Mr. Rajiv Bhat, representative of M/s. Shree Par Fragrance Pvt. Ltd./appellant along-with his learned Counsel Mr. G. Agni remained present and also Mr. Sachin Chaudhary, representative from the Office of the DSLR was present. In this hearing, from the side of appellant, learned Counsel Mr. G. Agni had stated that the fresh inspection report was nothing but it is just a replica of an earlier report and was accordingly disputed and further stated that the conference hall is a temporary structure for which no permission was obtained. However, permission from the erstwhile GSCCE was taken for the main structure, which is located beyond 200 m of HTL and as per the order dated 15.12.2008 (supra) passed by the GCZMA, the proceedings initiated against the appellant were dropped, which cannot be re-looked into. The GCZMA cannot go against its own orders. The construction of the Hotel was carried out merely by obtaining repair and reconstruction license and no MoEF clearance had been obtained. From the Appeal No.63/2016(WZ) Page 6 of 19 side of respondent No.2, the same was argued that the construction of the Hotel was carried out merely by obtaining repair and re-construction license and that the same needs to be demolished.
16. Further, it is found mention in the impugned order that based on the site inspection report dated 29.06.2016 (cited above), the respondent No.1 decided to issue directions under Section 5 of the Environment Protection Act, 1986 read-with other enabling provisions to the appellant to remove/demolish all the structures within 200 m from the HTL, which includes i) A wooden platform with permanent vertical steel pipes along / close to the HTL; ii) A conference hall that occupies the entire width of the plot, located on the pioneer dune, about 30-40 meters from HTL; iii) A rectangular tiled portion adjacent to / landward of the Conference Hall; iv) A tiled pathway that leads eastward, towards the interior of the plot; v). Tiled surface and a swimming pool close to the 200 m line; and vi). An intervening open strip that is marked by gardens and further, directed the appellant to show cause as to why criminal proceedings be not initiated by the GCZMA against it for violation of the EP Act, 1986 and there-by 15 days' time was provided to reply to the said Show Cause Notice. We find that it is above order, which is under challenge before us, which has been assailed on several grounds, which we will take up now.
17. During argument, the learned Counsel for appellant stated that out of the above directions pertaining to the demolition to be carried out by them, (ii) conference hall; (iv) a tiled pathway; and (vi) an intervening open strip marked by gardens are required to be demolished in compliance with the said order as the rest of the directions have already been complied with because they have already been demolished by the appellant on their own. Appeal No.63/2016(WZ) Page 7 of 19
18. Out of the above three structures, we find that only conference hall is of significance as the rest of the structures, which are said to be the structures, do not appear in our estimation to be the structures because one is tiled pathway leading eastward and other is an open strip that is marked as garden.
19. The learned Counsel for appellant has drawn our attention to page no.42 of the paper book, which is a Map prepared by the Directorate of Settlement and Land Records (DSLR), where-in it is indicated that a line is drawn between the conference hall and the Arabian Sea and from the conference hall towards Arabian Sea, there is a pathway shown with dotted line, which is said to be the tiled pathway. Having drawn our attention to this, the learned Counsel for appellant argued that this Map is erroneous because there is no beach shown between the conference hall and the Arabian Sea in the Map. It is also indicated by the learned Counsel for appellant that the line, which is drawn in this Map between the conference hall and the Arabian Sea, shows that conference hall is almost in water, which cannot be a correct position in the present matter.
20. Thereafter, the learned Counsel for appellant has drawn our attention to I.A. No.51/2023(WZ) at page nos.265 to 269 of the paper book, which is an amendment application moved by the appellant, where-with an order dated 13.12.2021 passed by the GCZMA has been annexed along-with a Map (annexed at page no.280 of the paper book). Having drawn our attention to this, it is pointed out by him that by this order, permission for erection of 2 temporary structures and 1 shack/Restaurant in the property in question has been granted, which, according to him, is nothing but the same conference hall, which is now being ordered to be demolished. We fail to understand as to how we can conclude from this permission that it Appeal No.63/2016(WZ) Page 8 of 19 pertained to grant of permission for erecting the conference hall. Even by the Map, which has been found annexed at page no.280 of the paper book, we are not able to make out as to which are the two structures and one shack/restaurant, which are permitted to be erected. However, the learned Counsel for appellant said that the structure shown by (A) in the Map is a conference hall, which is shown towards the Arabian Sea side. But we are not in agreement with his argument as there is no sound proof on the basis of which we can conclude that this permission related to the conference hall.
21. The learned Counsel for appellant has also tried to put an argument to the effect that this order dated 13.12.2021 was in fact regularizing the already existing structure of conference hall but that is beyond our comprehension.
22. Thereafter, the learned Counsel for appellant has drawn our attention to Volume-III of the said appeal, where-on M.A. No.356/2016(WZ) is found with the prayer that additional documents may be taken on record, where- with a map prepared by the Gram Panchayat of Village: Calangute, Goa is annexed, in which by black pencil, an existing structure is shown, which is being referred as conference hall and that it was permitted, long back on 21.01.1992, to be constructed/approved. We find this argument very vague as to how the said structure could be treated to be the said conference hall, which now is being directed to be demolished.
23. Thereafter, the learned Counsel for appellant has drawn our attention to the Order of GCZMA dated 15.12.2008, which is annexed at page nos.32 to 35 of the paper book, where-in it is recorded that based on the report received from the office of the Collector, North, Panaji, Goa, a Show Cause Notice dated 20.06.2007 under section 5 of the Environment (Protection) Act 1986 was issued to Shri Rajiv Bhat (appellant) for the violation of CRZ Appeal No.63/2016(WZ) Page 9 of 19 Notification- 1991 and Show Cause Notices dated 09.06.2006 and 01.03.2007 were issued to Shri Ashok Bhatt/Shri Rajiv Bhatt and M/s Farenheit (Par Fragrance) Bar & Restaurant for violation of the CRZ Notification- 1991. In this, there is a table drawn, in which serial no.2 related to the Survey No.239/15, Calangute, the date of Show Cause Notice entered in 09.06.2006 and the type of construction is mentioned "Temporary shacks with wooden poles, bamboo matting and floor covered with ceramic tiles platform constructed with ceramic tiles" and area is shown to be 150 sq. mtrs. It is being said that this description in the construction type pertains to the conference hall in question. But we have no reason to be in agreement with the argument of learned Counsel for appellant that the said description relates to the conference hall in question. There is no copy of the notice issued to him, submitted before us, in order to show as to whether in that notice, any reference was made of the conference hall in question, therefore, how could this order dated 15.12.2008 be treated to be pertaining to the said conference hall.
24. Assuming that description to be a conference hall, the learned Counsel for appellant drew our attention to page no.35 of the paper book, in which it is mentioned that "in meeting on 19.06.2008, the GCZMA considered (i) the objections filed to the report of the Collector (North); (ii) the arguments put forth by the petitioner; (iii) the site inspection conducted by the GCZMA members indicating the demolition carried out by Shri Bhat with respect to the structures within 200 mtrs. from the HTL; (iv) the clarification from the Town and Country Planning Department; and (v) the approvals granted earlier by GSCCE. The GCZMA thereafter came to the conclusion that the structure in question existing on the landward side of the 200 meters, is not in violation of the CRZ Notification- 1991". Appeal No.63/2016(WZ) Page 10 of 19
25. Thereafter, the learned Counsel for appellant submitted that according to him, the order/decision of the GCZMA dated 15.12.2008 establishes that the conference hall was found to be existing landward side of the 200 mtrs., hence it would not be in violation of the CRZ Notification 1991.
26. We have already given our opinion that the said description, which is mentioned above, does not pertain to conference hall in our estimation, hence we cannot hold that this order pertains to permission of the conference hall having been earlier approved and now the same order is being reviewed by the present order, which has been assailed before us.
27. Thereafter, the learned Counsel for appellant has drawn our attention to last para of the impugned order at page no.27 of the paper book, in which it is mentioned that there were various discrepancies, which need to be clarified, therefore, the learned Counsel hammered before us that these discrepancies were not properly got verified and the impugned order has been passed. The learned Counsel for appellant has further argued that the response given to the Show Cause Notice, which was issued to him, was not considered and that the respondent No.1/GCZMA has indulged in pick and choose theory. There were number of other structures, which were closer to the Sea and yet only his structure was selected by the GCZMA for being ordered to be demolished.
28. The learned Counsel for appellant has argued before us that instead of ordering demolition of the alleged illegal construction made by the appellant, the same ought to have been regularized by the respondent No.1/GCZMA and for this, he has placed reliance upon the case of Secretary, Kerala State Coastal Management Authority vs. DLF Universal Ltd. [(2018) 2 SCC 203]. We have gone through the said Judgment and find that in the Appeal No.63/2016(WZ) Page 11 of 19 said case, the dispute was between the developers of a housing project and the environment authorities to the effect that the different authorities had taken variant stands. It was the say of the developer that they obtained all requisite permissions and had proceeded with the project in pursuance thereof, while the coastal management authority and the environment authority controverted the same. The Coastal Zone Management Authority was found to wake up after a long slumber all of a sudden and found various violations wanting to put the clock back. The allegation was against the DLF of large-scale violations, which were not found factually correct by the Hon'ble Supreme Court and therefore, it was held that there was no need to bring down the structure. The fault of DLF was that it should have stayed its hand till CRZ permission had also been obtained. But the fact remains that on account of delay in the same, it was perceived as a deemed permission case under Para 8(3), 2006 EIA Notification- rightly or wrongly. The construction in between was also stopped but the appellant i.e. Coastal Zone Management Authority itself decided to recommend the project proposal to MoEF on 20-03-2010 on the basis that the narrow canal was a drainage canal. If there was any doubt about the same, it should have been settled at that stage itself. The sub-committee appointed by the Kerala State Coastal Zone Management Authority also categorically observed that the narrow canal was a drainage canal but recommended a fine being imposed for not obtaining prior approval/clearance. The Hon'ble Supreme Court held that the matter should have ended there only with a quantification of the fine to be imposed. It is further held by the Hon'ble Supreme Court that the lackadaisical attitude of the authorities had permitted the DLF to raise the issue of a deemed environment clearance by virtue of Para 8(3) of the EIA Notification, 2006. The environment clearance was applied on 27-11-2007 and the integrated clearance was granted on 11-12-2013 after six years, the Appeal No.63/2016(WZ) Page 12 of 19 project was completed by 2012. It is held in this Judgment by the Hon'ble Supreme Court that the approach of MoEF also appears to be very strange and there was a complete contradiction between what was stated before the High Court and before the Supreme Court three weeks after the conclusion of the hearing. The Ministry of Environment and Forests has indulged in a complete flip-flop-flip in their affidavit in explaining the reasons for the same. The contradictory stands of the authority and the endeavour to set up a different case, was not found to be acceptable. It is also recorded in this Judgment that only a part of the project area was found in CRZ-II category. After going through all the procedural requirements, the appellant (Coastal Zone Management Authority) made a recommendation on 31-08- 2010 that the construction falls in CRZ-Il areas and that the narrow canal was not an impediment to the construction and decided to recommend the proposal to the MoEF. The proposal was cleared by SEIAA, being the final authority, which was never withdrawn or cancelled or challenged. It is also observed in this Judgment that from the inspection itself, there should have been clarity on what was permissible and what was not. Accordingly, it was held that impugned order be set aside while sustaining the fine of Rs. 1 crore.
29. We do not find anywhere mentioned in the said Judgment that illegal structure raised in CRZ area should be open for consideration to be regularized. It is very strange as to how the learned Counsel for appellant is relying upon this Judgment before us, in order to convince us that the authorities may be instructed for considering regularization of the alleged illegal structures, which are ordered to be demolished.
30. In this regard, we may also refer here to a Judgment of Hon'ble Supreme Court delivered in the case of Kerala State Coastal Zone Appeal No.63/2016(WZ) Page 13 of 19 Management Authority vs. State of Kerala, Maradu Municipality & Ors. [(2019) 7 SCC 248], where-in, in para no.16, following is held:-
16. Further, reference has also been made to a decision of the Kerala High Court in Ratheesh K.R. v. State of Kerala [2013 (3) KLT 840]. The same are extracted below:
"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 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 WP(C).NO.19564/11 & CON.CASES 21 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 WP(C).NO.19564/11 & CON.CASES 22 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 Appeal No.63/2016(WZ) Page 14 of 19 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.
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."
31. Based on above decision, it is clear that regularization of illegal structure in CRZ area is not permissible.
32. From the side of respondent No.1/GCZMA, reply affidavit dated 29.04.2023 has been filed, where-in it is submitted that the appellant is taking undue advantage of the fact that the present appeal involves numerous legal proceedings and various directions by the answering respondent. In the Order dated 15.12.2008, the violations recorded were for different structures while the structures, which were ordered to be demolished in the present matter, challenged before this Tribunal, are different, which can be seen from the type of construction mentioned on the first page of the order. The impugned Order under appeal specifically enumerated the structures, which are in violation of CRZ Notification 2011 and are clearly depicted on the Plan dated 04.01.2016, which is marked at Exhibit P-3 Colly (page 42).
33. It is further mentioned in this affidavit by the respondent No.1/GCZMA that in the impugned order, following structures have been ordered to be demolished:-
" i). Wooden Platform with vertical steel pipes along /close to the HTL Appeal No.63/2016(WZ) Page 15 of 19
ii). Conference hall that occupies the entire width of the plot located on the pioneer dune about 30-40 mtrs. from HTL.
iii). Rectangular tiled portion adjacent to the Conference Hall.
iv). Tiled pathway that leads eastward towards the interior of the plot
v). Another tiled surface
vi). Swimming pool close to 200 mts from HTL
vii). Garden"
34. All the above mentioned structures fall within 200 mtrs. of the HTL. The structures pertaining to the order dated 15.12.2008 were demolished by the appellant as the construction was within 200 mtrs. from the HTL, hence the discharge order was issued. Subsequently, the appellants illegally re-constructed the present existing structures, reflected on the Survey Plan dated 04.01.2016, against which the appellants have now appealed. On the point of demarcation of 200 mtrs. (NDZ), the authority found the structures, enumerated in the plan drawn dated 04.01.2016 attached with the impugned order, were found to be falling within the NDZ. It is on the basis of various documents, 3 inspections and after giving opportunity of hearing to the appellant that the impugned order was passed. The averment made in the amended appeal cannot be considered in the present appeal because they are subsequent events, which legally cannot form part of the original appeal. The appellant has carried out the amendment to the present appeal, which include subsequent events of approval /permission for temporary structures.
35. It is further mentioned in this affidavit by the respondent No.1/GCZMA that the said approval was only for the temporary shack to be erected for tourism purpose. The same cannot be said to have any connection with the conference hall nor can it be held to be regularizing the conference hall. The contention of the appellant that the same has to be treated as regularized in view of the Order dated 13.12.2021, is bad in law. To say that the permission dated 13.12.2021 is an order regularizing the Appeal No.63/2016(WZ) Page 16 of 19 structure, is totally false. This permission was for temporary shack/restaurant, which pertain to only one Survey Number i.e 239/15. It is not true to say that the impugned Order is based on erroneous demarcation of 200 mtrs. from the HTL nor is it true to say that the appellant always maintained the line of 200 mtrs. The main building and swimming pool fall beyond 200 mtrs., is also wrong to say. The removal of swimming Pool needs re-verification after visiting the site. The appellants have produced a report from the Private Civil Engineer- Mr A.V. Aroskar, which cannot be taken on record as he is not a government approved surveyor. The pleadings with respect to "deemed regularization" of conference hall lacks any legal backing.
36. It is further mentioned in this affidavit by the respondent No.1/GCZMA that the answering respondent has given permission dated 13.12.2021 to erect temporary structures in Survey No. 239/15 but the same cannot be said to be an order to regularize the structure as claimed by the appellant in the present proceedings and that the appellants have admitted that they will apply for the permission to erect swimming pool, which clearly indicates that the swimming pool was constructed without any approval. It is also submitted that it is not true that the appellant has complied with the impugned order in respect of structure (i), (iii) & (v) as the same needs verification. The removal of swimming pool also needs to be re- verified after site visit. The structures mentioned in the order dated 21.07.2016 are illegally erected without any approvals. Lastly, it is submitted that the structures at serial nos. (iv) & (vi) also need to be demolished as per the demolition order in question.
37. After having heard the arguments of respective learned Counsel for the parties and after having perused the record, we are of the view that this Appeal No.63/2016(WZ) Page 17 of 19 matter is very old of the year 2016, which has been later on got amended by way of amendment in the memo of appeal, which is now been said by the learned Counsel for respondent No.1/GCZMA to be inappropriate because according to the GCZMA, the appellant has not demolished the earlier structures and whatever earlier structures, he is claiming to have demolished, have been re-constructed and that his claim to the effect that the same have been demolished, also need verification. Therefore, it would be appropriate for us to get the verification done from the side of respondent No.1/GCZMA.
38. We are also of the view that in view of the Judgment passed in the case of Sopan Maruti Thopte & Anr. vs. Pune Municipal Corporation & Anr. [(1996)(1) Mh. L.J. 963], it is very clear that in a case of demolition, when the authority passes an order regarding demolition of any particular structure, its specification should be very clear either by way of photograph or sketch map, which we do not find to be there in the present case. Lot of ambiguities appear to be there as to which structures which are ordered to be demolished. The relevant part of above Judgment is quoted herein below "19. Hence, on the basis of the law as discussed above, it is directed that after 1st May, 1996 the Bombay Municipal Corporation or the Municipal Corporations constituted under the B.P.M.C. Act would follow the following procedure before taking action under section 351 of the B.M.C. Act or under section 260 of the B.P.M.C. Act.
(i). In every case where a notice under section 351 of the B.M.C. Act/under section 260 of B.P.M.C. Act is issued to a party 15 days' time shall be given for submitting the reply. In case the party to whom notice is issued sends the reply with the documents, and shows cause, the Municipal Commissioner or Deputy Municipal Commissioner shall consider the reply and if no sufficient cause is shown, give short reasons for not accepting the contention of the affected party.
(ii). It would be open to the Commissioner to demolish the offending structure 15 days after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person.
(iii). In case the staff of the Corporation detects the building which is in the process of being constructed and/or reconstructed and/or extended without valid permission from the Corporation, it would Appeal No.63/2016(WZ) Page 18 of 19 be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchanama at the site and also by taking photographs of such structure and/or extension. The photographs should indicate the date when the same were taken.
(iv). In case where the Municipal Corporation has followed due process of law and demolished the unauthorised structure and/or extension, if the same is reconstructed without valid permission within a period of one year, it would also be open to the Corporation to demolish the same by giving a short notice of 24 hours.
(v). If the offending structure and/or extension which is assessed by the Corporation for two years, notice shall provide for 15 days' time to show cause. If the Deputy Municipal Commissioner comes to the conclusion that he requires assistance of the party, he may give an oral hearing if he deems fit and proper before passing the order. It is made clear that oral hearing is not at all compulsory but it is at the discretion of the authority.
(vi). In any other case the Corporation is directed to issue a show cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above. The Corporation shall provide for 7 days' time to show cause in such a case."
39. Therefore, in view of above vagueness, we deem it appropriate to allow this appeal with a direction to the respondent No.1/GCZMA to re-decide the matter in question by giving fresh opportunity of hearing to the parties concerned and if the order regarding demolition is required to be passed, the same shall be passed only after giving specific Map and photographs showing therein as to which structures of the disputed property are being ordered to be demolished by them. This process shall be completed within a period of one month from the date of uploading of this order/Judgment.
40. With the above directions/observations, we dispose of this appeal.
41. Pending applications, if any, also stand disposed of. No order as to cost.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM September 25, 2023 Appeal No.63/2016(WZ) M.A. 287/2016 (WZ) & I.A. No.156/2023(WZ) P.kr.
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