National Green Tribunal
Colva Civic And Consumer Forum vs Goa Coastal Zone Management Authority on 2 July, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
ORIGINAL APPLICATION NO. 66 OF 2014 (WZ)
The Colva Civic and Consumer
Forum having registered office at
H.No.257/1, Bagdem, Ward 3,
Colva, Salcete, Goa, represented
By its Secretary Mrs. Judith A.B.
Almeida, major of age, R/o Bagdem,
Colva, Salcete, Goa .... Applicant
Versus
01. The Goa Coastal Zone Management Authority,
Through its Member Secretary,
Department of Sciences, Technology and
Environment, Government of Goa,
3rd Floor, Dempo Towers,
Patto, Panaji, Goa
02. The Village Panchayat of Sernabatim,
Vanelim, Colva and Gandaulim,
Through its Sarpanch/Secretary, Colva
Salcete - Goa
03. Tonia Estates Resorts Pvt. Ltd.,
A Company registered under the provisions
Of the Companies Act, represented by its
Managing Director Shri Aleixo A. da
Piedade Sequeira, having its registered
Office at Raicho Ambo, Raia, Salcete, Goa
04. Shri Aleixo A da Piedade Sequeira,
Major of age, Managing Director,
Tonia Estates Resorts Pvt. Ltd., a
Company registered uner the provisions
Of the Companies Act, having its
Registered office at Raicho Ambo, Raia,
Salcete, Goa ....Respondents
APPEARANCE :
Applicant : Mr. Rahul Choudhary, Advocate
Respondents : Mr. S.U. Kamdar, Senior Advocate along with
Mr. Abhay A. Anturkar, Advocate and Mr. Dhruv
Tank, Advocate for R-1/GCZMA
Mr. Huzefa Ahmadi, Senior Advocate along with
Mr. Ninad Laud, Mr. Preetam Talaulikar,
Mr. Shivshankar Swaminathan and Mr. Ivo D‟Costa,
Advocates for R-3 and R-4
[NPJ] Page 1 of 36
CORAM : HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 12.04.2024
Pronounced on : 02.07.2024
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JUDGMENT
1. This Original Application has been filed with the prayers that a direction be issued to respondent No.1- Goa Coastal Zone Management Authority (GCZMA) and respondent No.2-Village Panchayat, Sernabatim to forthwith take action in accordance with law against the constructions of respondent No.3- Tonia Estates Resorts Pvt. Ltd. and respondent No.4- Aleixo A da Piedade Sequeira in Survey Nos.23/13 and 23/17 of Colva and to remove the offending structures and restore the beach to its original condition and the construction license/renewal of construction license issued on 16.01.2014 and occupancy certificate dated 13.02.2014 issued by respondent No.2-Village Panchayat, Sernabatim in respect of the revised plan of respondent Nos.3 and 4 be quashed.
2. The facts of the present case, in brief, are that the applicant is a forum registered as a Society comprising citizens of villages Sernabatim, Vanelim, Colva and Gaundalim, which is concerned about the large scale illegal and unplanned construction. On the basis of information gathered under the Right to Information Act, it is submitted by the applicant that an approval was granted on 18.05.2006 to respondent No.3 by respondent No.1 for repairs and renovation of existing beach resort on block `B‟ in above mentioned survey numbers of village Colva, which existed prior to 1991. Both these survey numbers lie within 200 mtrs of HTL in No Development Zone (NDZ). A copy of the said approval is annexed as Annexure-2. Since the existing structures in question were unauthorized, the matter was earlier referred by respondent No.1-GCZMA to Ministry of Environment and Forest (MoEF) (not a party to the present proceeding) on [NPJ] Page 2 of 36 17.08.1995 for "regularization of existing hotel" including basement in the said survey numbers in question, wherein through letter dated 29.06.2006, reply was insisted upon to be submitted by the MoEF within 30 days, failing which permission was to be granted by the local authority for the structures in question. Subsequently, on 30.01.2008, respondent No. 1-GCZMA purported to grant another approval to respondent no.3 for repairs and renovation of Block A and Block C, which were not considered earlier by respondent no.1 on 18.05.2006. Subsequently, respondent no.2-Village Panchayat granted construction license on 11.06.2008 for repair/alteration/renovation, stating therein that the same was based on clearance/approvals granted by respondent no.1- GCZMA, when no such approval was granted by respondent no.1. A copy of the said construction license dated 11.06.2008 is annexed as Annexure-5.
3. It is further submitted that as per the documents obtained under RTI from respondent no.1, it is revealed that the Member Secretary, Planning and Development Authority, Margaon (not a party to the present proceeding) had issued 3 show cause notices in respect of impugned structures, as to why demolition order be not passed, details of which are mentioned in para 2.5 at serial nos. (i) to (iii).
4. It is further mentioned that in view of the show cause notice dated 27.03.1991 and also letter of respondent no.1-GCZMA, requesting for regularization of the existing structures, it is amply clear that the so called structures existed prior to coming into force CRZ notification, 1991 in survey nos. 23/13 and 17 in No Development Zone within 200 mtrs, which was blatantly illegal and unauthorized, hence permission granted by respondent nos. 1 and 2 also should be treated to be blatantly illegal for repairs, alteration and renovation because only authorized structures could have been permitted to be repaired and not the illegal and unauthorized ones.
5. It is further mentioned that despite repeated complaints made by the applicant, the respondents did not initiate any action on the pretext that the [NPJ] Page 3 of 36 matter was sub judice before the Hon‟ble High Court in Writ Petition No.751 of 2008. A copy of note sheet thereof is annexed as Annexure-7. The applicant had brought to the notice of respondent no.1-GCZMA on 24.09.2012 that the entire construction amounts to a new construction within No Development Zone and requested for an enquiry to be conducted into the matter and take suitable action as per rules. A copy of the said letter dated 25.09.2012 is annexed as Annexure-10.
6. Further it is mentioned that due to these reasons, respondent no.2- Village Panchayat Sernabatim, on 10.12.2012, finally revoked the construction license and also on 26.12.2012, issued demolition notice citing several serious illegalities namely-
(i) An area of 3100 sq.mtrs was to be given to the Government as open space, however the structures A and C and swimming pool were constructed upon this land with no approved plan, construction license or conversion sanad for the same;
(ii) The constructions in the open space were without construction license and unauthorized;
(iii) There was no conversion sanad in respect of open space of 3100 sq.mtrs in the survey numbers in question and that in fact no conversion sanads could be issued within NDZ;
(iv) During survey on 07.11.2012, fresh encroachments were made into a nullah (i.e., a creek, affected by tidal action) on the western side which were detected and new constructions and a compound wall had also been raised;
(v) The construction license, plans and plinth were not as per plans approved prior to 1991 and completely false and the survey conducted by the Panchayat with a professional surveyor made it clear that the construction was wholly illegal and 6 structures identified as „B‟ were shifted and were not as per plans and not as per plinth area of original plan which was violation of clauses 9 (a) and 9(b) of the construction license.[NPJ] Page 4 of 36
7. Further it is mentioned that the show cause notice dated 10.12.2012 as well as demolition order dated 26.12.2012 were sent to respondent no.1- GCZMA and the office of respondent no.3-Project Proponent, which are annexed as Annexure-11 colly.
8. Further it is mentioned that vide letter dated 15.01.2013, the Town and Country Planning Department (not a party to this proceeding) with the subject "Issue of Technical Clearance for Revised Plan and Completion Certificate", after conducting site inspection, requested respondent no.4- Project Proponent to clarify three observations which are quoted in paragraph no.10 of the application from serial no (i) to (iii) and also the status of Writ Petition no.751 of 2008. These observations at serial no (i) mentions that NOC was issued for repairs/renovation of the existing structures based on clearance issued by respondent no.1-GCZMA. However it is noted that construction of the structures has been carried out and location of the structures seemed to have been shifted from that of the approved plan. The observations at serial no.2 state that the approval obtained from respondent no.1 for revised plan, showing the construction carried out at the site, if any may be submitted. The observation at serial no.3 states that respondent no.2 i.e. Village Panchayat on 05.12.2012, has cited various allegations and while withdrawing construction license and also demolition notice dated 26.12.2012 issued by respondent no.2 has been received by the Town and Country Planning Department.
9. The Town and Country Planning Department issued the Technical Clearance on 15.04.2013 and on 16.04.2013, the completion order was issued to respondent no.3-Project Proponent which are annexed as Annexure-13 colly.
10. Further it is mentioned that respondent no.2-Village Panchayat, after engaging services of an Architect had superimposed the plan on 13.08.2013 showing the alleged structures existing prior to CRZ notification, 1991, plans approved in 2006 and thereafter in 2013. It is evident that the original plans of 1991 approved only six structures (Shown by red colour in [NPJ] Page 5 of 36 the map annexed at page 56 of the paper book) in the year 2008, what was approved was eight structures (which are shown in the same map by thick black line) but with a different and visibly larger plinth. What was finally approved in the year 2013, as far as structures „B‟ and „C‟ are concerned, again involved complete shift of the plinth, which travels beyond repair and renovation and constitutes construction of a new building. The said plan prepared by the privately engaged architect is annexed as Annexure-14 colly.
11. By order dated 16.01.2014, respondent no.2-Village Panchayat issued a revised construction license for construction in terms of the revised plan to respondent nos. 3 and 4. The remaining texts of para no. 14 of the application is not understandable to us nor the same was explained by the Learned Counsel for the applicant during his argument.
12. Further it is mentioned that respondent no. 3 and 4 completely razed all alleged pre-existing structures and constructed new ones, taking their activity completely out of the scope of the definition of „repair and renovation‟ and therefore the said construction is to be treated as new building, which was wholly impermissible in terms of CRZ notification 1991 and thereafter CRZ notification 2011.
13. Further it is mentioned that the applicant, on 23.04.2014 and 25.04.2014, brought to the notice of respondent nos. 1 and 2 that the permissions granted for the said project wherein violation of rules and regulations of respondent no.1 and requested to conduct an inspection and institute a thorough inquiry into the project, but till filing of this application, no response was received by them. Hence the present application has been filed with the abovementioned prayers.
14. This matter was first heard by this Tribunal on 02.07.2014 when the notices were directed to be issued to the respondents.
15. From the side of respondent no.3 and 4-Project Proponents, reply dated 19.01.2024 has been filed, denying allegations made against them. It is stated that the tourist resort in question was in existence in the year [NPJ] Page 6 of 36 1986-1987, well before coming into force CRZ notification, 1991. The answering respondents as well as their predecessors-in-title had obtained necessary approvals at all points of time and had not committed any violation. On 29.04.1981, one M/s Progressive Estate Developers made an application to respondent no.2-Village Panchayat seeking grant of construction license for the purpose of construction of tourist resort at the site in question, which was granted on 05.05.1981, a copy of which is annexed as Annexure-R1 at page 115 of the paper book. After obtaining the said construction license, Progressive Developers have applied for and obtained necessary approvals/permissions from various Government Authorities to construct the said tourist resort, which also included approvals from Eco Coastal Committee (ECC) Goa , Ecological Development Council (EDC), Town and Country Planning Department and Village Panchayat - respondent no.2, the construction of tourist resort consisting of 6 cottages and swimming pool was completed in the year 1986. Sometime in the year 1987 the subject property along with the tourist resort was acquired by Pent House Builders Pvt Ltd. from Progressive Developers Pvt. Ltd. Thereafter Pent House Builders Pvt Ltd obtained loan of Rs.61,21,200/- from Economic Development Corporation Ltd. on 23.03.1987. The fact that tourist resort was operational prior to 1991 is evident from the first invoice/bill issued by Pent House Builders Pvt. Ltd. on 13.11.1987. The CRZ notification 1991 came to be notified on 19.02.1991, which declared the Coastal stretches influenced by tidal action (in the landward side) up to 500 mtrs from the High Tide Line (HTL) as Coastal Regulation Zone and CRZ-III has been described as follows:
"CRZIII
(i) The area up to 200 meters from the High Tide Line is to be earmarked as „No Development Zone‟. No construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density...
(iv) Reconstruction/alterations of an existing authorized building permitted subject to (i) to (iii) above."[NPJ] Page 7 of 36
16. Further it is mentioned that the Tourist Resort which was constructed and was operational prior to 1991 fell within the area of 200 mtrs from the HTL. Thus the same fell in CRZ-III area and is an existing authorized structure as per CRZ Notification 1991.
17. In view of clause (iv) of the said notification, extracted above, the reconstruction/alteration of the tourist resort was permissible. In the 8th meeting of the Goa State Committee for Coastal Environment (for short, „GSCCE‟), two additional structures for the tourist resort other than 6 cottages and a swimming pool were approved, which have been identified as Blocks „A‟ and „C‟, while 6 cottages have been identified as Block „B‟.
18. The said tourist resort came into existence prior to 1991, is also evidenced by letter dated 12.03.1996 addressed by the office of Town and Country Planning Department to the Chief Engineer, Irrigation Department, wherein it is recorded that „this particular resort is existing since 1987‟ the said letter was sent along with a House Tax Assessment Form issued by respondent no.2-Village Panchayat, which confirms the structures H.No. 424 and H. No 424(1) on the subject property were constructed in the year 1986 and 1987 respectively. The said letter is annexed as Annexure-R4 at page 125 and copy of the House Tax Assessment Form is annexed as Annexure-5 at page 125.
19. Since the Pent House Builders Pvt. Ltd had defaulted in servicing the loan taken from Economic Development Corporation Ltd. the subject property along with the tourist resort standing thereon were auctioned and sold by the Economic Development Corporation Ltd to one M/s R. G. Bakale on 22.06.2001, possession of which was handed over to him on 06.04.2002. The answering respondents acquired the same on 05.07.2005 when M/s R. G. Bakale and respondent no.3 Tonia Estates Resorts Pvt. Ltd. entered into an Agreement for sale in respect of the subject property along with tourist resort which culminated in Sale Deed dated 31.03.2008 executed in favor of respondent no.3 by M/s R.G. Bakale. By this time, the said resort had been [NPJ] Page 8 of 36 abandoned and was in ruinous condition, which the answering respondents intended to restart. Accordingly, an application was moved by them to respondent no.1 proposing repairs/renovation/alteration/reconstruction of the existing tourist resort. Vide letter dated 18.05.2006, respondent no.1 was pleased to grant approval for the proposed repair and renovation of existing Block „B‟ (Cottages) and Swimming Pool, a copy of which is annexed as Annexure R6 at page 128 of the paper book. Since approval to two other existing structures being Blocks „A‟ and „C‟, was deferred by Respondent no.1, the answering respondents made another application to respondent no.1 seeking approval for the proposed repair/ renovation/ alteration/ reconstruction for Blocks „A‟ and „C‟, which is granted by respondent no.1 on 31.01.2008, which is annexed as Annexure-R7 at page 132.
20. Thereafter the answering respondents obtained following permissions for the purpose of repair/ renovation/ alteration/ reconstruction of the said resort:
"a. Letter from the Public Works Department to Respondent No. 2 on 15th May 2008 stating that the proposal for repair/renovation/alteration of the Tourist Resort is technically approved. In other words, technical approval was granted. A copy of the letter dated 15th May 2008 from the Public Works Department to Respondent No. 2 is hereto annexed and marked as Annexure R-8 at pgl 35.
b. No objection Certificate ("NOC") issued by the Office of the Senior Town Planner, Government of Goa to Respondent No.2 for the proposed repairs/ renovation/ alteration/ reconstruction of the Tourist Resort on 19th May 2008. A copy of the NOC dated 19th May 2008 issued by the Office of the Senior Town Planner is annexed hereto and marked as Annexure R-9 at pgl 37.
c. Construction License issued by Respondent No. 2 to Respondent
No. 3 on 11th June 2008 granting permission for
repair/renovation/alteration/reconstruction of the Tourist Resort. This Construction License was issued on the basis of the clearance/approvals granted by Respondent No. 1 vide letters [NPJ] Page 9 of 36 dated 18th May 2006 and 31st January 2008. A copy of the Construction License dated 11th June 2008 issued by Respondent No. 2 to Respondent No. 3 is annexed hereto and marked as Annexure R-10 at pg. 143."
21. It is further mentioned that in the year 2011, a complaint was filed by one Shriram Raiturkar, a third person, against the answering respondents whereon respondent no.1 issued a show cause notice to the answering respondents. Another complaint was filed by the third party i.e. Goa Foundation against the answering respondents on 12.11.2011 with the GCZMA that there were additional constructions being undertaken over and above the existing plinth area. Upon receipt of this complaint, respondent no.1 vide letter dated 05.12.2011 requested Directorate of Settlement and Land Records (DSLR) to conduct a survey of the existing structures and identify any new structure as against the earlier survey conducted with regard to the subject property. Pursuant to the said directions, the DSLR shared a copy of the plan showing the structures surveyed by SSLR on 15.12.2011. A perusal of the plan shared by DSLR would show that the plinth area of the structures was found to be 2030 sq. mtrs which was well within the originally existing plinth area of 2117 sq. mtrs as per the past survey conducted on 07.04.2009. As regards swimming pool, the area was found to be the same as it was in the survey conducted on 07.04.2009 i.e. 115 sq. mtrs. A copy of the documentary evidence in this regard i.e. letter dated 26.12.2011 is annexed as Annexure-12 at page 147 of the paper book. On 20.06.2012, the answering respondents addressed a letter to respondent no.1-GCZMA requesting it to verify whether the repairs/ renovation/ reconstruction had been carried out as per the revised plans. Vide letter dated 23.07.2012, respondent no.1 requested DSLR to carry out mapping of the structures and confirm the details by comparing DSLR‟s record with that submitted by the answering respondents. The plans shared by the DSLR with respondent no.1 confirmed that the repairs/ renovation/ reconstruction was as per the approvals granted to the answering [NPJ] Page 10 of 36 respondents and within the existing CRZ survey plan. The plinth area was found to be unchanged and identical to what it was in the previous survey carried out on 15.12.2011, proof of which is annexed as Annexure-R14 at page 152 of the paper book. Thereafter respondent no.1 had issued a letter dated 23.08.2012 to the answering respondents confirming that the work carried out by them was in accordance with the approvals granted. A copy of the said letter dated 23.08.2012 is annexed as Annexure-R15 at page 154 of the paper book.
22. Further it is mentioned that after having completed repairs/ renovation/ reconstruction work, the Town and Country Planning Department had issued completion order to respondent no.3 on 16.04.2013, certifying that the repair/ renovation/ reconstruction of tourist resort (Blocks „A‟, „B‟ & „C‟) had been completed. A copy of the said completion order is annexed as Annexure-R16 at page 158 of the paper book.
23. Thereafter the answering respondents obtained Consent to Operate (CTO) from Goa State Pollution Control Board (GSPCB) on 16.05.2013, a copy of which is annexed as Annexure-R17 at page 159 of the paper book.
24. Respondent no.2 had not responded to the answering respondents‟ application for Occupancy Certificate, pursuant to which they had approached The Block Development Officer by way of an Appeal and the said Authority had passed an order on 20.08.2013 directing respondent no.2 to issue Occupancy Certificate to the answering respondents within a period of 10 days. A copy of that order is annexed as Annexure R-18 at page 168 of the paper book.
25. Thereafter, other formalities such as getting the registration done of the tourist resort with the Fire Department, applying for an electricity connection, applying for water connection etc. were also completed and having stated these facts, it is mentioned that the answering respondents have constructed the tourist resort on subject property after obtaining all requisite permissions and the same was in existence prior to 1991. The [NPJ] Page 11 of 36 construction carried out subsequently was only for repair/ renovation/ reconstruction of the said pre-existing authorized structures, after obtaining requisite permission from respondent no.1 and other relevant authorities.
26. In addition to above, it is further submitted that the applicant has challenged the impugned permissions granted by respondent no.2- Village Panchayat in the present case under a legislation which is not covered in Schedule-I to the NGT Act 2010 and hence it is beyond the scope of Section 14 of the NGT Act.
27. It is further submitted that the approvals/ permission which have been obtained by the answering respondents have withstood a challenge by another party in Writ Petition No. 751 of 2008, wherein the Hon‟ble Bombay High Court at Goa held that the said approvals/ permissions do not suffer from any legal infirmity and are in consonance with the CRZ notifications. The said finding is binding on this Tribunal in view of the judgment of the Hon‟ble Supreme Court rendered in State of Andhra Pradesh v. Raghu Ramakrishna Raju Kanumuru (M.P.); 2022 (8) SCC 156.
28. Further it is mentioned that the Hon‟ble Bombay High Court at Goa in Writ Petition No. 751 of 2008 clearly held that the approvals/ permissions granted to the answering respondents (their predecessor-in- title) were lawful and three structures being Blocks A, B & C were authorized and in existence since the year 1986-1987, much before the CRZ notification was issued and the said structures were not found to exceed the existing plinth area, existing FSI or existing density.
29. It is also mentioned that this Tribunal had issued notice to the answering respondents in the captioned OA on 02.07.2014 challenging the jurisdiction of this Tribunal vis-à-vis issues raised in captioned OA in view of Section 2(m) of the NGT Act and also on the ground that an identical issue was pending before the Hon‟ble High Court of Bombay at Goa in Writ Petition no. 751 of 2008 and consequently, a parallel proceeding before this Tribunal was not maintainable. Therefore Writ Petition No. 469 of 2014 was also tagged and heard along with Writ Petition No. 751 of 2008 by the [NPJ] Page 12 of 36 Hon‟ble High Court of Bombay at Goa. While disposing of Writ Petition No.s 751 of 2008 and 469 of 2014, vide Judgment and Order dated 20.06.2019 the Hon‟ble High Court had directed the answering respondents (i.e. the petitioners in Writ Petition No. 469 of 2014) to approach this Tribunal to seek disposal of the captioned OA. Against the said Judgment passed by the Hon‟ble High Court the applicant (i.e. respondent no.3 in Writ Petition No. 469 of 2014) filed Special Leave Petition (SLP) No. 27545 of 2019 before the Hon‟ble Supreme Court challenging the Judgment of the Hon‟ble High Court of Bombay at Goa, wherein by order dated 03.10.2023, the Hon‟ble Supreme Court directed this Tribunal to decide the captioned OA and the parties were granted liberty to raise all contentions/ objections as are available under law.
30. The answering respondents have also raised an issue of the Original Application (OA) being time barred. It is stated that the reliefs which ought to have been sought in an appeal under Section 16 of the NGT Act have been prayed to be granted in this application, for which limitation period is only 30 days plus 60 days (discretionary period). In the case in hand the impugned approval was granted to the answering respondents in the year 2006 and 2008. Therefore in view of the NGT Act being not in force at that time the applicant ought to have challenged these approvals with alacrity in writ proceedings.
31. Further it is stated that the applicant has tried to justify the limitation on the ground that respondent no.2-Village Panchayat had initiated action against the answering respondents, by order dated 10.12.2012, it had revoked the renewal of construction license dated 19.03.2012 by another order dated 26.12.2012, respondent no.2 had directed the demolition of the structures standing on the subject property and later on respondent no.2 Village Panchayat did volte face, because of which the applicant had to file the present proceedings. Further it is mentioned that the Completion Certificate and Occupancy Certificate were furnished to the applicant on 03.04.2014 and it was only thereafter the [NPJ] Page 13 of 36 present application could be moved by the applicant. The said reason is bad in law and not maintainable under sub-section (3) of Section 14 of the NGT Act, as only six months‟ period is provided to initiate the proceedings from the date on which first cause of action arose. The first cause of action which has arisen would have been treated to be July 2012 when the applicant had filed Misc. Civil Application No. 635 of 2012 in suo motu Writ Petition No. 2 of 2006 before the Hon‟ble High Court of Bombay at Goa wherein the applicant had made a grievance about the tourist resort structures of the answering respondents and sought an enquiry against the said structures. It is further stated the applicant was clearly aware of the work of repair/ renovation of the said tourist resort which was being carried out by the answering respondents, but they chose not to file any proceedings before this Tribunal within the prescribed period of limitation.
32. It is further mentioned that respondent no.1-GCZMA had decided the issues in favor of the answering respondents in the year 2018 after taking into consideration the report submitted by the Inquiry Committee of respondent no.1 in the year 2015. In this regard, following facts have been stated to be relevant:
"a. The Hon‟ble Bombay High Court at Goa by its Order dated 12 th January 2015 in Misc. Civil Application No. 635 of 2012 (which was filed by the Applicant) in Suo Motu Writ Petition No. 2 of 2006 had directed Respondent No. 1 to conduct an inquiry with respect to the structures existing in the No Development Zone of CRZ-III in Village Colva, which included, inter alia, the Tourist Resort. A copy of the Order dated 12th January 2015 passed by the Hon‟ble Bombay High Court at Goa in Suo Moto Writ Petition No. 2 of 2006 is hereto annexed and marked as Annexure R-28 at pg. 279.
b. The said enquiry was conducted by an Inquiry Committee constituted by Respondent No.1, comprising three members which included a retired District Judge (Mr. Afonso Araujo), retired Mamlatdar (Mr. Kanchan Lotlikar) and a retired Surveyor (Mr. Caetano Braganca), on 31st October 2013, in terms of the directions issued by the National Green Tribunal vide its orders [NPJ] Page 14 of 36 dated 3rd May 2013, 22nd May 2013 and 26th July 2013 in OA No. 68 of 2012.
c. The Inquiry Committee, after examining the relevant documents provided by the Answering Respondents and perusing the records of Respondent No. 1, submitted its report dated 19 th October 2015 wherein it was found that the structures in the subject property were pre-existing structures, which though within the No Development Zone, had only been repaired/ renovated/ reconstructed without exceeding the plinth area, and such repair and reconstruction of existing structure was permissible within the No Development Zone and the repairs/ renovations/ reconstructions carried out were in accordance with law. A copy of the Report dated 19th October 2015 of the Inquiry Committee of Respondent No. 1 is hereto annexed and marked as Annexure R-29 at pg.281.
d. Pertinently, the Secretary of the Applicant (who is the deponent in the captioned OA) was present and participated in the proceedings before the said Inquiry Committee, and advance arguments.
e. The said report was subsequently examined by Respondent No. 1 in its 179th, 180th and 181st meeting held on 19th July 2018, 31st July 2018 and 14th August 2018 respectively. Respondent No. 1, after hearing the Applicant and the Answering Respondents and examining the aforesaid report as well as a report submitted by DSLR, confirmed that the construction was as per the plans and plinth size submitted to the authority while obtaining approval. Thus, the findings of the Inquiry Committee‟s report dated 19th January 2015 came to be accepted by Respondent No. 1. A copy of the Minutes of the 179 th Meeting of Respondent No. 1 held on 19th July 2018 is hereto annexed and marked as Annexure R-30 at pg.285. A copy of the Minutes of the 180th Meeting of Respondent No.1 held on 31st July 2018 is hereto annexed and marked as Annexure R-31 at pg.308. A copy of the Minutes of the 181st meeting of Respondent No. 1 held on 14th August 2018 is hereto annexed and marked as Annexure R-32 at pg. 338."
33. Further it is mentioned that having lost before respondent No.1, the applicant is now seeking through present Original Application to challenge [NPJ] Page 15 of 36 the same approvals/permissions which had been held to be valid and lawful.
34. It is further mentioned that the issue of the tourist resort no longer survives in view of the judgment passed by the Hon‟ble High Court of Bombay at Goa dated 20.06.2019 in Writ Petition No.751 of 2008, wherein the Hon‟ble High Court has declared that the structures constructed on the subject property were constructed after obtaining requisite permissions and have been in existence and in operation prior to 1991. It also held that the construction carried out subsequently was repair/renovation/ reconstruction of the pre-existing structures, after obtaining requisite permission from respondent No.1 and meets the criteria for such repair/renovation/reconstruction as per the CRZ notifications. The applicant was a party and more importantly a contesting respondent in the proceedings and was duly heard before the Hon‟ble High Court. The contention of the petitioner in Writ Petition No.751 of 2008 and that of the applicant herein is virtually the same. The petitioner in Writ Petition No.751 of 2008 and the applicant were acting in collusion behind the scenes and filed several frivolous cases before multiple forums alleging that the structures of the answering respondents were illegal. The relevant paragraph nos. 3, 13 and 15 of the said judgment of the Hon‟ble High Court dated 20.06.2019 are quoted in paragraph Nos.74 to 76 of the reply of the answering respondents, as follows:
"3. The Petitioners have come to the Court with a case that in the property surveyed under Nos.23/13 and 23/17, there existed five cottages, one house structure, one building, one swimming pool, one open restaurant with four sit- outs. These were used as a beach resort under the name and style of Penthouse Beach Resort. The resort was lying in an abandoned condition for the last several years. In or around the first week of September 2008, the Petitioners noticed survey operations being carried out in the property. Upon inquiries made and information sought from authorities, including the Panchayat of Colva, Goa Coastal Zone Management Authority (GCZMA), and Town and Country Planning Department of the State, the Petitioners claim to have learnt that in the guise of sanctions obtained from the authorities for [NPJ] Page 16 of 36 repairs/alternations /renovations, Respondent No.5 (who had in or about 2008 acquired rights to the property) was reconstructing or newly constructing a beach resort at site; the plans of such construction showed total deviation from the plinth of existing structures. Whereas the existing covered area of five cottages and one house was 843.76 sq. metres, the six buildings proposed in their place would have a covered area of 1324.86 sq. metres. So also, the floor area of 1822.08 sq. metres of the existing structures was being increased to 2537.22 sq. metres. It is the Petitioners' case that even the existing structures, which were purportedly being repaired/altered/renovated, were unauthorised and did not have the requisite approvals from the authorities. The Petitioners claim to have applied to the concerned statutory authorities (Respondent Nos. 2, 3 and 4) for revoking and withdrawing the permissions and since they did not receive positive response, filed the present Petition.
13. On its plain terms, the Regulation makes it clear that what is permissible under CRZ III is not merely repairs or renovation of an existing authorised structure or building, but even reconstruction or alteration of an existing authorised structure or building. In either case, be it a proposal for repairs or renovation or a proposal for reconstruction or alteration, what is necessary is to maintain, that is to say, not to exceed "existing FSI", "existing plinth area"
and "existing density". There is nothing in the Regulation to suggest that exceeding of plinth area within the meaning of the relevant stipulation, implies either alteration of the plinth or its location or orientation. Learned Counsel for the Petitioners implores us to construe the expression 'not to exceed the existing plinth area', as not to alter the contours of the plinth or change the footprint of the structure in terms of contours or orientation. That, we are afraid, would amount to reading of words into the statute, which is clearly impermissible. When the words used in the statute are clear in themselves, it is not permissible to read words into it and construe the same differently.
"Plinth area" is always measured in square feet or square metres and exceeding the existing plinth area would, by a plain grammatical meaning, imply exceeding the total quantity of plinth area in terms of square feet or square metres, as the case may be. There is no scope to construe this expression as meaning a restriction on change of contours of the plinth or its location or orientation.
15. In the present case, the record of the case clearly bears out that the plinth area of the new construction does not exceed the plinth area of the originally authorised existing structures. The plan submitted by Respondent No.5 for repairs/renovations/alterations of the existing structures and which was approved by GCZMA in August 2006, shows six cottages of type B admeasuring a total plinth area of 1324.86 sq. metres. In addition to these cottages, there were two more structures referred to as type A and type C, respectively, admeasuring 605 sq. metres and 102.46 sq. metres, making the total existing plinth area as 2032.32 sq. mtres. There is substantial material [NPJ] Page 17 of 36 on record, and which appears to have been considered by the authorities whilst approving the subject plan, putting the total plinth area at 2032.32 sq. metres. When the initial construction plan (Phase-I) was before the authorities for consideration around the year 1986, the Eco Control Committee (ECC) of the State had scrutinized the plan and observed that the project was fulfilling the guidelines and norms prescribed by Eco Development Council (EDC) and decided to recommend the project for final decision. There is also on record a letter addressed by the Chief Town Planner to the Member Secretary of EDC, confirming that the project fulfilled the guidelines and norms specified by EDC and forwarding the file containing construction plans for the latter's approval. It is also on record that the original Phase I development was approved subject to the condition that the remaining land in the northern part of the plot shall be ceded to the Government. On that condition, the approval was conveyed to the predecessor of Respondent No.5 in 1986. The predecessor of Respondent No.5, thereafter, submitted plans for Phase II development, which was proposed within that part which was required to be ceded to the Government according to the original sanction. An in-principle approval was granted by EDC/ECC to this proposal, which was conveyed to the applicant sometime in 1988-1989. The minutes of meeting of EDC in this behalf (minutes of 28th ECC meeting held on 28th April, 1988) are on record. So also, is on record a communication of the Senior Town Planner, communicating such in-principle approval to the predecessor of Respondent No.5. Also on record is a letter of the Under Secretary to the Government of Goa (Tourism Department) informing the Chief Town Planner that the Government had decided to withdraw the condition regarding ceding of land (originally made part of the sanction for Phase I development). There is a communication from the Chief Town Planner, in turn, to Respondent No.4 about the Government decision to withdraw the condition regarding ceding of land. All this does show that further construction of Phase II development in respect of the areas denoted as A and C types was sanctioned by the authorities. In other words, there is ample material on record to show that these two types of structures, which were claimed as existing authorised structures, in fact did have authorisation.
35. Further it is mentioned that the Hon‟ble High Court of Bombay at Goa has also taken note of the points which are quoted hereunder:
The repair/ renovation/ alteration/ reconstruction of the existing structures as also the existing plinth area, along with the consideration of the repair/ renovation/ alteration/ reconstruction by ECC in the year 1986 and 1988; The recommendation granted to the repair/ renovation/ alteration/ reconstruction by EDC; and The subsequent letter of the Chief Town Planner to the Member Secretary of EDC confirming that the repair/ renovation/ alteration/ reconstruction fulfills the guidelines and norms specified by EDC."[NPJ] Page 18 of 36
It is mentioned that having considered the above material on record, the Hon‟ble High Court concluded that there is ample material on record to show that the structures were existing and authorized structures, constructed prior to 1991.
36. It is mentioned that in paragraph nos.16 to 21 and 24 of the said Judgment, the Hon‟ble High Court has taken note of the house tax assessment done by respondent No.2-Village Panchayat, which shows that the tourist resort had been in existence prior to 1991 and that the repair/renovation/reconstruction carried out by the answering respondents did not exceed the already existing plinth area. In paragraph Nos.16 to 21 and 24, the Hon‟ble High Court held as under:
"16. Apart from this authorisation, there is also evidence of lawful existence of the structures acknowledged by statutory authorities and, in fact, the structures being assessed to Panchayat tax on that basis. There is on record a house tax assessment on the part of Respondent No.4-Panchayat, showing construction of House No.424 in 1986 and House No.424(1) later, clearly suggesting that not only were B type structures existing as authorised structures, but even the structures designated as A and C types had always existed, as authorised structures, much prior to 1991. There are on record aerial photographs of Colva village in respect of the particular area where the beach resort was situate, showing all these structures as of 1991 and 1993. The existing structures find an endorsement on the part of GSCCE in its meeting (8th Meeting) dated 30.6.1995. Then there is a letter addressed to the Chief Engineer, Irrigation Department, by the Chief Town Planner on 12th March, 1996 indicating that the resort had been in existence since 1987 along with the site plan showing all structures. This communication was followed by a communication from the Director of Tourism to the Chief Town Planner conveying compliance of environmental guidelines by the beach resort and its construction in accordance with the permissions obtained from EDC/ECC from time to time. There is, accordingly, preponderance of evidence to suggest that not only were all structures, claimed in the plans submitted by Respondent No.5 in 2006, in existence, but they were also authorised.
17. As regards the plinth area of the existing authorised structures, there is once again abundance of material to show that the area was at least 2030 sq. metres plus swimming pool of 115 sq. metrs. There is a survey report by Government of Goa, Directorate of Settlement and Land Records, (DSLR) Panaji, Goa giving plinth area details according to (i) the survey conducted on 4th July, 2009 (stating the area to be 2117 sq. metres), (ii) as per the survey conducted on 15th December, 2011 (as 2030 sq. metres) and (iii) as per verification survey conducted on 25th July, 2012 (as 2030 sq. mtres.). Even the Petitioners' own surveyor's report shows that buildings A and C and the [NPJ] Page 19 of 36 swimming pool in the construction licence were substantially in conformity with the existing structures. All this material shows not only authorisation of B type structures, which is a matter of admission on the part of the Petitioners (in para 18 of the rejoinder, the Petitioners have accepted this), but even the other structures designated as A and C and the swimming pool were also existing at site and were duly sanctioned by the concerned authorities and that the plinth area of the structures in all was 2030 sq. metres.
18. It is nobody's case that the plinth of the new structures, which are finally sanctioned by the Chief Town Planner in 2012, exceeds 2030 sq. mtres. In other words, the work of repairs/ renovations/alterations carried out by Respondent No.5 at site, does not exceed the plinth area of the existing authorised structures. The only real grievance, if at all, in this behalf, as noted above, is that the location of the plinth and in particular, its orientation vis-a- vis the plot has been changed. That, as we have noted above, does not amount to any breach or violation of either of the two CRZ Notifications of 1991 and 2011.
19. The other submission of learned Counsel for the Petitioners is that there is no authorisation of GCZMA so far as the plans submitted by Respondent No.5 in 2012, based on actual construction carried out at site, are concerned. It is submitted that GCZMA, in its communication dated 23 August 2012, had simply considered a DSLR report of mapping of the exiting structures, i.e. the structures actually constructed at site and existing in 2012. It is submitted that the DSLR Report merely confirms what was actually repaired/renovated/altered and was existing at site. The submission is that there is no reference to the decision taken by the body on whether or not to allow revision of plans, that is to say, the alteration between sanctioned plans of 2006 and 2008, on the one hand, and those submitted in 2012 in accordance with the actual construction, on the other. A letter addressed by GCZMA to Respondent No.5 on 23rd August, 2012 clearly belies this submission. The letter explicitly states that the project has been approved by GCZMA in terms of clause (8)(i),(iii)(CRZ-III)(A)(ii) of the CRZ Notification, 2011, (earlier Notification, 1991). In other words, not only has GCZMA considered the report of DSLR showing actually constructed structures at site to be in accordance with the plan of 2012, but that there was a consideration of whether the plans should be approved and that approval was duly accorded by GCZMA in terms of the applicable notification.
20. The correctness and propriety of the plans submitted by Respondent No.5 have been scrutinized by the authorities on a number of occasions and found to be in order. The plans were first approved for structures B and swimming pool by GCZMA on 18th May, 2006. This was after the decisions were duly taken in the meeting of GCZMA, minutes of which are on record. In its 38th meeting held on 12.12.2007, GCZMA granted approval for repairs and [NPJ] Page 20 of 36 renovation of the structures marked as blocks A and C. Communication of such grant of approval by GCZMA to Respondent No. 5 is of 30-31st January, 2008. A saga of show cause notices/demolition notices, appears to have followed thereafter, presumably at the instance of the Petitioners herein and other interested parties. Respondent No.4-Panchayat issued show cause notices and even passed demolition orders. Whilst all this was being debated and the matter was already in Court, Respondent No.5 had proceeded to obtain a technical approval from PWD (15.5.2009), inspection report by the Senior Town Planner (15.5.2008), NOC of the Town Planner (19.5.2009), licence for repairs/alterations/ renovations granted by the Panchayat (11.06.2008). Notices issued by Respondent No.4-Panchayat were withdrawn on 15 June 2009. This was followed by a complaint made by Goa Foundation to GCZMA, alleging that the construction was being carried out without environmental clearance. At that stage, GCZMA directed DSLR to conduct an inspection of the site and verify whether the structures were being constructed as per the plinth area originally in existence. This was by a communication dated 5.12.2011. The DSLR appears to have conducted the survey of the structures and the plinth area was found to be 2030 sq. metres. The DSLR, by its communication dated 26th December, 2011, confirmed, based on its survey, that the construction was within the plinth area originally existing. It was after all these considerations that GCZMA granted its final approval to revised plan as of 30th August, 2012. There is nothing to suggest that all this was done without following due process of law.
21. Even after this, there was a further show cause notice issued by the Respondent Panchayat, on the basis of a complaint by Respondent No.3 in the companion petition (Writ Petition No.469/2014). A reply was filed to that show cause notice by Responded No.5. This was followed by a Misc. Civil Application in Suo Motu Writ Petition No.2/2006 by Respondent No.3-Colva Civic and Consumer Forum. Once again, in response, a show cause notice was issued by the Panchayat to Respondent No.5, which led to rejection of the construction licence and its renewal by Respondent No.4 Panchayat and a demolition order in pursuance thereof. This was challenged by Respondent No.5 before the Additional Director of Panchayats, who directed Respondent No.4 Panchayat to maintain status quo at site. The matter was once again heard at length by the Additional Director, who, by his order dated 29th August, 2013, passed an order quashing the show cause notices and demolition orders issued by Respondent No.4-Panchayat."
"24. An upshot of the above discussion is that matters such as (i) character of the existing structures as of the date of CRZ Notification, 1991 - whether in existence and whether authorized or unauthorized,
(ii) compliance by the owner in the work of repairs/renovations/alterations with the CRZ Notification, 1991 and [NPJ] Page 21 of 36 2011 and in particular, the restriction of the renovated/altered structures having to be within the existing plinth area; (iii) change of the footprint or alignment or orientation of the original plinth - whether it made any difference in the matter, were all considered by the concerned authorities from time to time and after hearing all concerned parties and assessing relative merits of the rival cases at length."
37. Reliance is placed by the answering respondents on the judgment of the Hon‟ble Supreme Court in the case of Raghu Ramakrishna (supra), wherein the Hon‟ble Supreme Court held as follows:
"11. In any case, no law is necessary to state that insofar as the Tribunals are concerned, they would be subordinate to the High Court insofar as the territorial jurisdiction of the High Court is concerned. A reference in this respect was also made to the judgment of the Constitution Bench of this court in the case of L. Chandra Kumar v. Union of India and Others.
12. We are, therefore, of the considered view that it was not appropriate on the part of the learned NGT to have continued with the proceedings before it, specifically, when it was pointed that the High Court was also in seisin of the matter and had passed an interim order permitting the construction. The conflicting orders passed by the learned NGT and the High Court would lead to an anomalous situation, where the authorities would be faced with a difficulty as to which order they are required to follow. There can be no manner of doubt that in such a situation, it is the orders passed by the constitutional courts, which would be prevailing over the orders passed by the statutory tribunals.
13. In that view of the matter, we are of the considered view that the continuation of the proceedings before the learned NGT for the same cause of action, which is seized with the High Court, would not be in the interest of justice."
38. Having cited the above Judgment of the Hon‟ble High Court, it is recorded that the findings of the Hon‟ble High Court are squarely binding on this Tribunal. It is mentioned that the issues were decided and concluded by the Hon‟ble High Court in its judgment dated 20.06.2019. It is mentioned that the question concerning the legality of the tourist resort is no longer res integra and no longer survives.
[NPJ] Page 22 of 36
39. Further it is mentioned that the applicant has heavily relied on the show-cause notices dated 08.05.1990, 21.02.1991 and 27.03.1991, issued to the answering respondents, but in this regard, it is stated that these show-cause notices were neither decided nor was it concluded that the structures of the answering respondents were illegal or unauthorized. It is further mentioned that the show-cause notice dated 08.05.1990 was issued for extension and construction of cottages alleging that the same was done without prior approval of South Goa Planning and Development Authority. It is, however, stated that these show-cause notices themselves demonstrate that the cottages and other structures were existing prior to 1991.
40. With respect to show-cause notice dated 27.08.1991, which was issued for carrying out construction of main building consisting of G + 1 structure and a portion of which is having basement floor, number of structures such as powerhouse, dressing room, check post, etc., swimming pool and addition to the existing villas, it is submitted that the said structures do have valid permissions as on date and that even though the show-cause notice had been issued in 1991, the same does not cast any shadow of illegality on the project and no final orders have been passed on the said show-cause notices.
41. With respect to the show-cause notice issued in February, 1991, it is stated that it contained that if no reply is received to the said show-cause notice within 15 days, SGPDA would take necessary steps as provided under the relevant Act, but it is apparent that demolition order was never passed pursuant to the said notice. Therefore, these notices ought not to be considered by this Tribunal.
42. Having mentioned above facts, it is prayed by the answering respondents that this Original Application should be dismissed with heavy costs.
[NPJ] Page 23 of 36
43. The stand taken by respondent No.1-GCZMA in the matter is that their record shows that 5 cottages, one house structure, one building, one swimming pool and one restaurant with 4 sit outs were existing in the subject property, which was being operated in the name and style as Pent House Beach Resort, located within 200 mtrs of the HTL (NDZ). Clause 6 (2)
(i) of CRZ notification 1991 provides that the area up to 200 mtrs from HTL is „No Development Zone‟, wherein no construction is permitted except for repairs of existing structures not exceeding FSI, existing plinth area and existing density. Clause 6 (2)(iv) of the said notification further provides that the construction of an existing authorized building in the NDZ is permitted subject to clause (i) thereof. Thus, repairs and reconstruction are permitted in NDZ vide clause 6 (2) of the CRZ notification 1991. A similar provision is also given in CRZ notification 2011 as well in clause 8(III)(A)(CRZ III)(ii).
44. It is mentioned that the answering respondent that respondent no.4 Alexio Sequeira submitted an application on 16.01.2006 to the answering respondent seeking its approval for the proposed repairs and renovation of the existing Beach Resort in the said property, which was approved and constructed between 1986 and 1998. The application was also accompanied with a report dated 05.09.2005 prepared by a Civil Engineer certifying that the Beach Resort was built in 1986 and that the structures, details of which were given in the Report, were in dilapidated condition due to lack of maintenance. The said report further certified that the structures were totally damaged and needed urgent repairs and reinforcement. The area statement submitted vide form-A stated that the existing covered area is 2032.32 sq. mtrs and the existing first floor area was 1791.89 sq. mtrs. Thus total floor area was state to be 3784.21 sq. mtrs.
45. It is further submitted that the answering respondent carried out the site inspection of the property and the proposal of respondent no.4 was processed and placed for consideration of the Authority‟s meeting held on 20.04.2006. After examining the site inspection report vis-à-vis earlier [NPJ] Page 24 of 36 approvals granted to the resort, the answering respondent considered the following:
"a. The 1st phase of the resort was originally approved on 05.05.1981 by the Village Panchayat.
b. The revised approved 1st phase plan was approved by the Town and Country Planning Department on 24.02.1986.
c. The erstwhile Eco-Development Council approved the swimming pool along with ancillary items.
d. The site inspection report which indicated that there are 8 existing structures on the site and one empty swimming pool structure, one open well, one generator room, and one guard room, and that the said structures were fully completed but in a highly dilapidated condition due to abandonment."
46. It is further submitted that the existing structures were indicated by letters A, B & C in the site plan submitted by respondent no.4 (annexed at page 371 of the paper book). Considering the aforesaid, the answering respondent granted its approval for the proposed repairs and renovation vide its letter dated 18.05.2006 for the structures indicated by letter „B‟. As regards structures indicated A & C, the decision was deferred.
47. The answering respondent has also referred to the following documents in order to hold that respondent no.4 had already obtained relevant permissions, details of which are given in paragraph 7 of its affidavit at serial nos. (a) to (h) which are as follows:
"a. Village Panchayat of Sernabatim, Vanelim, Colva and Gaundalim i.e. the respondent no.2 herein, had issued construction license dated 88/81-82 on 05.05.1981 for construction of a Tourist Resort on Colva beach to M/s Progressive Estate Developers.
b. The Collector (South Goa) had granted conversion sanad dated 01.06.1981 under Section 32(1) of the Goa Land Revenue Code, 1968 for conversion of an area of 2347 sq. mtrs. From Survey No. 23/13 and 23/17 for the purpose of tourist complex.
c. In the 12th meeting of the Eco-Coastal Committee held on 12.03.1985, the said Committee resolved to recommend the [NPJ] Page 25 of 36 proposed hotel project of M/s Progressive Estate Developers to Eco-Development Council.
d. The Eco-Development Council in its meeting dated 30.08.1985 cleared the project of tourist beach resort by M/s Progressive Estate Developers.
e. The Town and Country Planning Department approved the revised plans vide NOC dated 24.02.1986.
f. The Minutes of the 28th Meeting held on 28.04.1988 of the Eco Control Committee recommending Phase II of the hotel project to the Eco-Development Council for approval wherein it was noted that the consensus was that the plans were as per the norms of the EDC and PDA regulations and should be agreed to.
g. A letter dated 29.01.1988 from the Directorate of Tourism to the Chief Town Planner, Chief Electrical Engineer, and Member Secretary of the South Goa Planning and Development Authority informing that the concerned Court has allowed the Civil Application No. 485 of 1987 filed by M/s Penthouse Builders vide its judgment dated 19.01.1988 and directed the Electricity Department to release electricity supply to the party within 15 days from the said date.
h. Minutes of the 13th meeting of the Eco-Development Council held on 19.07.1988 approving the construction of recreation facilities along with swimming pool in the subject property."
48. It is further mentioned that respondent no.4 thereafter submitted another application dated 14.11.2007 seeking approval of the answering respondent to carry out repairs and renovation of two existing structures i.e. „A‟ and „C‟, which proposals were examined by the answering respondent in its 38th meeting held on 12.12.2007 and decided to grant approval for repairs and renovation of these structures as well in accordance with CRZ notification 1991, subject to condition that repairs and renovation of the existing structures in the subject property shall not exceed the existing FSI, existing plinth area and existing density and shall conform to the local building bye laws.
[NPJ] Page 26 of 36
49. It is further submitted on 21.11.2011, Goa Foundation lodged a complaint with the answering respondent with regard to construction of "Tonia Resorts" on the subject property, pursuant to which on 05.12.2011, the answering respondent requested the DSLR to verify whether these structures had been constructed as per plinth area originally existing and as per the DSLR survey/mapping carried out, pursuant to the directions issued by the Hon‟ble High Court of Bombay at Goa in Writ Petition no. 150 of 1998 and Writ Petition no. 02 of 2006. The DSLR vide its letter dated 26.12.2011 informed the answering respondent that the total plinth area of the structures was found to be 2030 sq. mtrs excluding the swimming pool of 115 sq. mtrs.
50. It is further mentioned that on 20.06.2012 respondent nos. 3 and 4 submitted revised plans to the answering respondent as according to them the existing structures were in dilapidated condition and the foundations of building were severely damaged. It was also informed that a major portion of the structures was beyond repairs and had to be reconstructed in order to strengthen the foundation. In view of the said request for revision of plans, the answering respondent vide its letter dated 23.07.2012 requested the DSLR to verify whether the repairs/renovation & reconstruction was in consonance with the revised plan submitted by the Project Proponent. The DSLR vide its report dated 30.07.2012 confirmed that the repairs, renovation & reconstruction were in terms of the revised plans submitted on 20.06.2012 and that the plinth size was as per earlier approvals. The Authority/ answering respondent, therefore, granted approval to the revised plan of the respondent nos. 3 & 4, vide its letter dated 23.08.2012 in terms of Clause 8(i)(III)(CRZ-III)(A)(ii) of the CRZ notification 2011. The total plinth area of the structures was again found to be 2030 sq. mtrs excluding the swimming pool of 115 sq. mtrs.
51. It is further mentioned that in the year 2015, the Hon‟ble High Court of Bombay at Goa passed an order dated 12.01.2005 in Suo Motu Writ [NPJ] Page 27 of 36 Petition No. 02 of 2006 inter alia directing the answering respondent to conduct an Inquiry with respect to the structures existing in NDZ area the said direction included the structures of respondent nos. 3 & 4 as well. The enquiry into the said structures was referred to Inquiry Committee of the answering respondent which was constituted by the Authority pursuant to various directions contained in the order dated 03.05.2013, 22.05.2013 & 06.06.2013 in Application No. 63 of 2013 (M/s Bethy Alveras vs. State of Goa) by the NGT considering the backlog of complaints/inquires before the answering respondent. The said Inquiry Committee of the answering respondent was duly constituted comprising one Judicial Member (retired District Judge), one retired Mamlatdar and one retired officer from Directorate of Land and Survey Records, as members of the Committee. The Inquiry was conducted and the report was submitted on 19.10.2015 observing therein that the repairs, renovation & reconstruction were carried out by respondent nos. 3 & 4 in accordance with law. The answering respondent deliberated upon the said report in its 177th, 178th, 179th, 180th and 181st meetings and accepted the report in its 181st meeting held on 14.10.2018.
52. It is further submitted that one association by name Goencarancho Vorixtte Awaz had filed Writ Petition No. 751 of 2008 before the Hon‟ble High Court of Bombay at Goa against the answering respondent, respondent no.2-Village Panchayat and respondent no.3-Tonia Estates Resorts Pvt. Ltd., seeking similar reliefs which are prayed in the present Original Application wherein its was prayed that various sanction and permissions granted to respondent no. 3 & 4 be cancelled/revoked and the said Writ Petition was dismissed vide order dated 19/20.06.2019. The above mentioned decision was challenged before the Hon‟ble Supreme Court by the applicant in SLP (C) no. 27545 of 2019.
[NPJ] Page 28 of 36
53. Having cited above facts, it is prayed by the answering respondent that no case is made out against respondent no 3 & 4 and hence, present Original Application needs to be dismissed.
54. Additional Affidavit date 10.04.2024 has been filed by respondent nos. 3 and 4 wherein we do not find anything extra mentioned.
55. Rejoinder Affidavit dated 11.04.2024 has been filed by the applicant against the reply-affidavit dated 17.01.2024 filed by respondent no.1 and additional affidavit dated 10.04.2024 filed by respondent nos. 3 and 4, wherein, except annexing several show cause notices issued by various authorities, same facts have been reasserted which were stated by the applicant in the memo of Original Application, wherein also we do not find anything additional to have been stated and moreover same facts have been reiterated which we have already considered hereinabove.
56. Heard the arguments of learned counsel for the applicant, as well as learned counsel for respondent no.1-GCZMA, respondent no.3-Tonia Estates Resorts Pvt. Ltd and respondent no.4-Aleixo A da Pidedade Sequeira and perused the record.
57. Learned Counsel for the Applicant, first of all, drew our attention to demolition notice dated 26.12.2012 (annexed at pages 43 to 49 of the paper book) issued by the Secretary, Village Panchayat, Semabatim to M/s Tonia Estates Pvt. Ltd-Respondent No.3, wherein in para 11, it is recorded that the Panchayat body comes to the conclusion that all structures built by Tonia Estates Pvt. Ltd were completely illegal as the same were lying in NDZ i.e. within 200 mtrs from the HTL. Also because it was a hotel project where approval had to be obtained from MoEF but no such approval had been obtained. Therefore it was ordered under the resolution passed by the Panchayat under no. 4(10) and powers vested under Section 47(ii) and (iii) and 66(a) and (b) of the Goa Panchayat Raj Act, directing respondent nos. 3 [NPJ] Page 29 of 36 and 4 to demolish all the structures identified in the attached plan in survey nos. 23/13 and 23/17 of Colva Village within a period of 15 days. Having drawn our attention to this demolition notice, the learned counsel has urged that after this notice no further action was taken and this notice clearly indicates that the structures made by respondent nos. 3 and 4 are found to be absolutely illegal, lying in NDZ.
58. Thereafter our attention was drawn by the learned counsel to page 506 of the paper book, which is a show cause notice dated 08.05.1990, issued by the Member Secretary, GCZMA (respondent no.1) to respondent nos. 3 and 4 as to why illegal development had been made by them on survey nos. 23/13 and 23/17 without prior permissions of the Authority under Section 44 of the Town and Country Planning Act, 1974 and action of demolition against the same be not initiated. Having drawn our attention to it, it was urged that this notice will constitute sufficient evidence whether the constructions made by the Project Proponents - respondent nos 3 and 4 were illegal.
59. Thereafter our attention was drawn to page no 476 of the paper book which is construction license issued by the Village Panchayat dated 05.05.1981 for construction of a Tourist Resort to the predecessor-in-title of the applicant, namely M/s Progressive Estate Developers, which was valid only for three years. Hence the same would stand expired on 04.05.1984 and it is apparent that even thereafter the construction has been made. Hence the same should be treated to be illegal.
60. Further our attention was drawn to page 482 of the paper book which is a part of Sanad issued by the Collector Goa/Additional Collector of Goa on 01.06.1981 in respect of survey no. 23, subdivision nos. 13(part) and 17(part), details of which are given in Appendix-I contained therein in paragraph 7 showing the boundaries of the same. But we do not find any [NPJ] Page 30 of 36 force in the argument because in this document there is nothing which would prove that the structures were illegal.
61. Thereafter our attention was drawn to page 486 of the paper book which is a letter dated 11.08.1981 written by Chief Town Planner to the Sarpanch, Village Panchayat, Colva-Salcete in respect of the proposed Tourist Beach Resort at Colva Beach at the survey numbers in question, wherein it is recorded that under Section (Rule) 5 of the Village Panchayat Rules, both land development and building plans have to be approved by Town Planning Department in case of Village included in appendix „A‟ of Village Panchayat Rules. In the office letter dated 27.02.1981, only area allotted for the predecessor-in-title of respondent nos. 3 and 4 i.e. Progressive Developers has been indicated. This does not mean that the building plans have been approved by the Town Planning Department. It is also recorded that even if P.W.D. had sent the file to Village Panchayat without referring the matter to the Town Planning Department, Panchayat should have referred the matter to the Town Planning Department, before issuing license. Hence the license issued by the Village Panchayat in this matter is without technical approval by the Town Planning Department, which is contrary to the Rules. Based on this, it is urged that whatever constructions have been made pursuant to the license issued, which is said to be illegal, would also stand illegal.
62. Our attention was thereafter drawn to the page no. 488 of the paper book which is also a letter issued by the Chief Town Planner to the Sarpanch Village Panchayat Colva, wherein it is recorded that conversion of the land for construction of the hotel building in question was recommended under condition that permission for construction of the building will not be given until an access to the plot is made available after acquisition of the land by the Government. The same condition has been incorporated in the Sanad issued by the Collector. As such the license should not have been issued until the access to the proposed land was [NPJ] Page 31 of 36 made available. Hence there is violation of the conditions stipulated in the Sanad. Having drawn our attention to this, it is urged that this would also indicate that the construction made on the survey nos. in question should be treated to be illegal.
63. Our attention was drawn by the learned counsel for the applicant to page no. 503 of the paper book, which is a letter dated 28.03.1990, issued by the Chief Town Planner to the Under Secretary (STE), Department, Panaji, pertaining to construction of Pent House Beach Resort, wherein attention was drawn to paragraph no. 6 wherein it is recorded that the proposal for swimming pool and ancillary uses in the portion of the land meant to be surrendered to the Government was discussed in 28th ECC meeting held on 28.04.1988. The general consensus of the Committee was that the plans were as per norms of ECC and R&D.A. regulations and it should be agreed to. The case was placed before the EDC in its 13th meeting held on 17.07.1988 and the Counsel approved the swimming pool in open space with permissible ancillary uses as per plans. Paragraph 7 of the said letter states that, however, after detailed scrutiny of the plans it was found that the whole plot falls within 200 mtrs from HTL and the decision regarding 90 mtrs or 200 mtrs was yet to be finalized. The plan has to be submitted to the IMC for approval by the Government at that time.
64. By the above we could not understand as to on what basis above references of paragraph nos. 6 and 7 of the letter, can convince us that the structures in question can be held to be illegal.
65. Our attention was also drawn to the Judgment of the Hon‟ble High Court of Bombay, at Goa, annexed at pages 498 to 500 (which appears to be the relevant portion only and not the entire judgment), delivered on 08.12.1988 in the case of Prof. Sergio Carvalho vs. The State of Goa and three ors; and 1989 (1) Goa Law Times (276), wherein in paragraph no. 16 following is recorded:
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"...... We hope that hereafter the Government authorities would ensure that in no case any construction or development is made on this stretch of 200 metres from High Tide Line and the authorities should enforce this rule strictly not only in the case of project of respondent no.3 but any other project which is undertaken or will be undertaken hereafter in the State of Goa. Restrictions must be strictly enforced as long as Government of India has not relaxed the condition of "no development zone" within the area of 200 metres...."
66. Having drawn our attention to the above extract of the Judgment relied upon by the applicant, it is urged by the learned counsel that though even prior to coming into force CRZ Notification 1991, the land in question did fall in NDZ i.e. within 200 mtrs of HTL. This Judgment of Hon‟ble High Court of Bombay at Goa had already put in place the law in this regard that within 200 mtrs from the HTL, no construction could have been done and that in the present case respondent nos. 3 and 4 have raised construction within NDZ area i.e. within 200 mtrs from HTL, which may be treated as illegal construction.
67. The learned counsel for the applicant has also drawn our attention to Regulation 6(2) CRZ-III (i) (ii) (iii) and (iv), which are as follows:
"CRZ-III
(i) The area up to 200 mtrs from the High Tide Line is to be earmarked as „No Development Zone‟. No construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density. However the following uses may be permissible in this zone-
agriculture, horticulture, gardens, pastures, parks, playfields, forestry and salt manufacture from sea water.
(ii) Development of vacant plots between 200 and 500 mtrs of High Tide Line in designated areas of CRZ-III with prior approvals of MEF permitted for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines at Annexure-II.
(iii) Construction/reconstruction of dwelling units between 200 and 500 mtrs of the High Tide Line permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing [NPJ] Page 33 of 36 villages and gaothans. Building permissions for such constructions/reconstructions will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units, total covered area on all floors shall not exceed 33 percent of the plot size, the overall height of construction shall not exceed 9 mtrs and construction shall not be more than two floors (ground floor plus one floor).
(iv) Reconstruction/ alteration of an existing authorized building permitted subject to (i) to (iii) above."
68. It is apparent from the above provision that it provides under clause
(iv) above for reconstruction of an existing authorized building permitted subject to clauses (i) to (iii) above. The learned counsel hammered upon the fact that reconstruction could be permitted within NDZ of earlier existing structure if the same was found to be authorized. But in the case in hand, he argued that show cause notices, which he has cited above, issued to respondent nos. 3 and 4 and their predecessor-in-title, would show that these structures, which were found to be there prior to 1991, were all unauthorized and hence if the permission is later on granted for the reconstruction and repairs of the same even for the same plinth area and no violation of FSI, consent cannot be held to be valid because initially they were unauthorized.
69. We are of the view that this argument is erroneous because only on the basis of notices issued to respondent nos. 3 and 4 or to their predecessor-in-title, would not mean that some action was taken against the predecessor-in-title or respondent nos. 3 and 4 holding that the earlier structures, which were found to be on survey numbers in question, were unauthorized or illegal. Any notice would have meaning only if the same is taken to its logical conclusion by giving some finding by the Authority but none of these notices issued to respondent nos. 3 and 4 was ever decided finally that the structures were illegal. Hence we differ from the argument of the learned counsel that these structures were unauthorized one. Respondent no. 1-GCZMA in its affidavit, has clearly stated that all [NPJ] Page 34 of 36 structures were existing prior to 1991 and they were found to be in extraordinarily dilapidated condition, because of which permission/approval for repair/ reconstruction was sought by respondent no. 3 and 4, which was granted as per the provisions of CRZ Notification, cited above. It has also been emphasized by respondent no.1 that what was important to observe and bona fide whether these structures exceeded the existing plinth area or FSI but even in that regard the committee constituted by GCZMA had visited the site and found that the plinth area was not exceeded at all. Therefore the permission/ approval granted by GCZMA does not suffer from any infirmity and we find the same to be in accordance with CRZ notification, 1991, relevant provisions of which have been cited above.
70. We may also mention that though the proceeding were initiated against the same construction by third party, which matter had also been heard by the Hon‟ble High Court of Bombay at Goa wherein it has been conclusively decided that the structures, which were raised by respondent nos. 3 and 4, were not illegal. Relevant portion of the said Judgment delivered by the Hon‟ble Bombay High Court at Goa is quoted by us while dealing with the reply filed by respondent nos. 3 and 4. Law is also settled on this that if the higher Authority/Forum (Hon‟ble High Court) has rendered judgment in a matter, it should be respected/honored by the Authority/Forum lower to it. In that view of the matter, we are of the view that the structures which have been raised by respondent nos. 3 and 4 in survey numbers in question cannot be held to be illegal and we are of the firm and considered opinion that the same should be treated to be as per provisions of CRZ Notification 1991, cited above.
71. No other argument was advanced by the learned counsel for the applicant apart from what we have already taken into consideration. Therefore we do not find it necessary to consider points raised by learned counsel for respondent nos. 3 and 4.
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72. In the result, we dismiss this Original Application.
73. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM July 02 , 2024 O.A. No.66 OF 2014(WZ) npj [NPJ] Page 36 of 36