National Green Tribunal
Sagardeep Sirsaikar vs Goa Coastal Zone Management Authority on 3 December, 2024
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
ORIGINAL APPLICATION NO. 05 OF 2023 (WZ)
Sagardeep Sirsaikar s/o Shri
Sudumber Sirsaikar,
R/o H.No.308, Chapora, Dabolwado,
Anjuna, Bardez, Goa - 403509 .... Applicant
Versus
1. Goa coastal Zone Management Authority (GCZMA),
Through its Member Secretary,
1st Floor, Pandit Deendayal Upadhyay Bhavan,
Near Pundalik Devasthan, Punalik Nagar,
Porvorim, Goa - 403 521
2. Mr. Robert F. Coutinho,
R/o H. No.548, Vagator,
Anjuna Village, Bardez Taluka,
North Goa District, Goa
3. Mr. Antonia D'Souza,
Sy.No.213/5, Village Anjuna,
Bardez Taluka,
North Goa District, Goa
4. Mr. Nelson Britto,
Sy. No.213/5, Village Anjuna,
Bardez Taluka,
North Goa District, Goa
5. Being Life Hospitality Pvt. Ltd.,
Through its Managing Director,
Having its Registered Office at
H.No.122/6/1, Ground Floor,
Sant Nagar Village, Burari City,
North Delhi District, Delhi - 110 084
6. Department of Environment & Climate Change,
Through its Director,
Government of Goa,
IVth Floor, Dempo Towers,
Patto - Panaji, Goa - 403 001
7. National Coastal Zone Management Authority (NCZMA),
Through its Member Secretary,
Joint Secretary (Coastal Regulation Zone CRZ),
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhavan,
Jorbagh, New Delhi - 110 003
O.A. No.28 OF 2024(WZ) Page 1 of 13
8. Comunidade of Anjuna,
Through its Attorney - Mr. Sebastian D'Souza,
Office of Anjuna Comunidade,
St. Michael's Church, Anjuna,
Bardez, Goa - 403 509 .... Respondents
APPEARANCE :
Applicant : Mr. Aagney Sail, Advocate
Respondents : Ms. Supriya Dangare, Advocate for R-1
Mr. Parag Rao, Advocate along with Mr. Shivshankar
Swaminathan, Advocate for R-2 to R-5
Mr. Pushkal Mishra, Advocate for R-7
Mr. Preetam N. Talaulikar, Advocate for R-8
CORAM : HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 05.11.2024
Pronounced on : 03.12.2024
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JUDGMENT
1. This Original Application has been moved by the applicant assailing the illegal construction of a Restaurant-cum-Club in the name of "Romeo Lane - a unit of Being Life Hospitality Pvt. Ltd." on Survey Nos. 213/5, 213/6 and 206/1 of village Anjuna, Mandrem, Bardez Taluka, North Goa District, Goa, on Vagator Beach, alleging that the said Restaurant has been constructed by respondent No.2 - Robert F. Coutinho, respondent No.3 - Antonia D'Souza, respondent No. 4 - Nelson Britto and respondent No.5 - Being Life Hospitality Pvt. Ltd., of a permanent nature on the ground floor plus one floor using RCC concrete retaining wall, drainages, RCC staircases and construction of road on Vagator Beach, in blatant violation of the CRZ Notification, 2011. As per Para 8 (i)(III)(A) of CRZ Notification, 2011, permanent construction in the No Development Zone (NDZ) is prohibited, but despite that, Romeo Lane site falls entirely within NDZ as per the Draft Coastal Zone Management Plan (CZMP) Map Sheet No.GA184 prepared by the National Centre for Sustainable Coastal Management (NCSCM). As per Para 8(v)(3)(iii) of the CRZ Notification, O.A. No.28 OF 2024(WZ) Page 2 of 13 2011 for Goa, purely temporary and seasonal structures of local communities shall be permissible in CRZ and this is incorporated in the report titled "Carrying Capacity of Beaches of Goa for Providing Shacks & Other Temporary Seasonal Structures in Private Areas" (`Beach Carrying Capacity Report', for short). The GCZMA has granted approval on 01.12.2021 for erection of temporary Shack and Hut on Romeo Lane site for a total built-up area of 591/64 sq.mtrs made of wood and/or natural/bio-degradable material only, for ground floor structure only and no barricades of site are allowed along with other conditions as specified in the Beach Carrying Capacity Report. True copies of the pictures of Romeo Lane site taken on 09.11.2022 showing illegal construction, which were submitted along with complaint to GCZMA are annexed with the application.
2. It is stated in the application that respondent No.1 - GCZMA, in its 183rd meeting held on 31.08.2018, granted approval to various temporary seasonal structures such as Shacks/Huts/Tents structures in CRZ area in private properties and one of them is in the name of respondent No.2 for construction of 8 Huts and 1 Shack in an area of 591.64 sq.mtrs in Survey No.213/5 of village Anjuna, Mandrem, Bardez Taluka, North Goa District. This permission to respondent No.2 was granted for five years only and thereafter, on 01.12.2021, respondent No.1 - GCZMA granted approval to the revised plan of respondent No.2 on the said site in supersession of earlier approval dated 31.05.2021 (there appears to be ambiguity in the date as the date of 183rd meeting held is mentioned in paragraph of memo of Original Application as 31.08.2018 while in paragraph No.4 thereof, it is mentioned as 31.05.2019). Both these approvals do not mention the number of huts and shacks which have been allowed whereas the same is recorded as 8 huts and one shack at serial No.9 of Annexure-A1 (North Goa) of the minutes of 183rd meeting of GCZMA. Both these approvals are not available in public domain i.e. on O.A. No.28 OF 2024(WZ) Page 3 of 13 the website of GCZMA and the same have been obtained by the applicant from the Village Panchayat, Anjuna under Right to Information Act ("RTI", for short). The Village Panchayat, Anjuna granted No Objection Certificate (NOC) to respondent No.2 on 25.05.2022, which is in continuation of earlier NOC dated 09.03.2022, which is valid till 31.03.2023. The applicant came to know about the construction activity from the villagers of Anjuna in the beginning of November, 2022 and after making enquiries, he made a complaint dated 09.11.2022 to GCZMA - respondent No.1, which was submitted on 11.11.2022. Pursuant to the receipt of the said complaint, on 17.11.2022, GCZMA issued notice of inspection of the site in question which was to be conducted on 02.12.2022 at 11 a.m. onwards, but unfortunately, till date, no site inspection has been conducted. On 05.12.2022, the Village Panchayat, Anjuna, after inspection and following due procedure, ordered demolition u/s 66/4 of the Goa Panchayat Raj Act, 1994 for carrying illegal construction of concrete wall, illegal drain, illegal temporary wooden structures shack, restaurant below with permanent plinth and illegal culvert in Survey No.213/5 and 213/6 of village Anjuna. The said demolition order was stayed by the Appellate Authority i.e. BDO, Bardez vide order dated 06.12.2022 and the proceedings are going on.
3. Therefore, it is prayed by the applicant that a direction may be issued to respondent No.1 - GCZMA to conduct site inspection in order to ascertain the illegal construction in Restaurant-cum-Club in question at the above mentioned site and submit site inspection report with colour pictures showing violations; direction may be issued to respondent No.1 - GCZMA to publish the Completion Certificates issued for erection of temporary shacks/huts, etc. including pictures of such structures on their official website in compliance with its decision taken for Item No.2 in its 306th Meeting held on 26.05.2022 and a direction be issued to respondent No.7 - NCZMA to set up a Committee to determine O.A. No.28 OF 2024(WZ) Page 4 of 13 Environmental Compensation to be recovered for violations of CRZ Rules pertaining to permanent constructions of shacks, huts, cottages etc in Goa and submit its report before this Tribunal for approval.
4. This matter was first considered by this Tribunal on 24.01.2023 and after its admission, it was directed to issue notice to the respondents.
5. Denying all the allegations against it, respondent Nos.2 to 5 have stated in their reply dated 20.03.2023 that respondent No.1 - GCZMA has approved the plans submitted by the answering respondents for the construction which is carried out strictly in accordance with the approved plans. All the 8 structures and one shack are in consonance with the approval granted by the GCZMA, which are all of temporary nature. It is denied that any of these structures is of RCC and all structures are on ground floor only. As regards the structure in Survey No.213/5 and 6 of village Anjuna, it is submitted that there exists a landed property known as "OZARAN" belonging to respondent No. 3 - Antonia D'Souza, who has been carrying out business of shack traditionally since time immemorial thereon. Respondent No. 2 is the attorney of respondent No.3. Respondent No.3, vide letter dated 04.04.2018, had applied for permission/approval for erection of temporary wooden shack and huts in the property bearing Survey No.213/5 of village Anjuna, which was granted to respondent No.2 by the GCZMA vide letter dated 31.05.2019, subject to the condition that all requisite environmental safeguard would be taken and that the traditional access, rights of way, easement shall not be blocked by the answering respondent. No deviations were found to have been done by respondent Nos.2 to 5 on inspection being conducted by respondent No.1. In the remaining part of the reply, it is stated that all the requisite permissions from the relevant Authorities were obtained by the answering respondents. Therefore, there was no illegality in the construction carried out by the answering respondents. O.A. No.28 OF 2024(WZ) Page 5 of 13
6. The applicant has filed another additional affidavit dated 20.04.2023, wherein it is submitted that in the present Original Application, notice was issued to the respondents vide order dated 24.01.2023. Respondent No.1 - GCZMA conducted the site inspection on 13.03.2023 in presence of the applicant and copy of the site inspection report was supplied to the applicant pursuant to the letter dated 24.03.2023. Copy of the said inspection report is annexed as Annexure - A13 to the additional affidavit, wherein following is found by the GCZMA:
"Inspection and Observation:
Upon instruction from the Member Secretary, GCZMA, a site inspection was carried out on 13/03/2023 by Mr. Ganesh Velip, Expert Member (GCZMA), Mr. Nehal Devidas, Engineer (GCZMA) & Ms. Siddhi Morajkar, Field Surveyor (GCZMA). At site, the complainant Mr. Sagardeep A. Sirsaikar was present. Whereas, on behalf of the respondent, the manager of the establishment Mr. Vidhur Seth was present.
The details of site inspection are as follows:
The above mentioned survey nos are laying on slope with total elevation gain of approx. 30.0 m. The survey no.213/5 & 213/5 falls in CRZ-III of Anjuna village. Out of the two survey nos, survey no.213/5 fully falls under NDZ whereas 213/6 falls partly under NDZ & partly in 200 m - 500 m.
As per the office records, for survey no.213/5 permission was given for 6 nos of wooden cottages & wooden shack under ref.no :
GCZMA/N/Shack-Hut-Cott-Tent/17-18/73 dated 01/11/2021.
It is noticed that the plot is sloping in nature thus the approach to shack has been made of approx. 160 nos of steps of average riser of 150 mm high. The level difference on both sides of pathway has been managed with concrete & masonry retaining walls. Along the pathway there is concrete gutter of approx.. height 0.50 m on the southern side of the property. Most of the approach steps are of masonry base or of concrete base.O.A. No.28 OF 2024(WZ) Page 6 of 13
The shack is majorly temporary in nature made up of wood for super structure. The foundation of shack projecting out from the cliff towards seaward is supported by MS sections placed on concrete foundation. The plinth is of permanent in nature & constructed with concrete. The flooring is of Kadappa pavers fixed with concrete mortar. The extension of shack indicated as platform in approved drawing are constructed with level differences. The level difference has been supported with concrete retaining walls.
Few site photos are enclosed as Annexure-I. Conclusion and Recommendation
i) The above mentioned survey nos.213/5 & 213/6 falls in CRZ-III of Anjuna village. Out of the two survey nos survey no.213/5 fully falls under NDZ whereas 213/6 falls partly under NDZ & partly in 200 m - 500 m.
ii) As per the CRZ Regulation, no permanent construction is permissible within the CRZ-III (NDZ) area except the repair or reconstruction of the old structure existing prior to 1991, with proper permission from GCZMA.
iii) The above mentioned survey nos.213/5 & 213/6 are laying on slope with total elevation gain of approx. 30 m, thus it is difficult to take measurements and it is recommended to put up the letter to DSLR for detailed mapping.
iv) This may be deliberated in the Authority meeting for a decision."
7. At this stage, we would like to deal with the objections raised by the applicant in his written arguments dated 05.11.2024 submitted before us, wherein in paragraph No.2, the main thrust appears to be on the fact that no action was taken on his application/complaint dated 09.11.2022, rather the action appears to have been taken on a complaint letter dated 22.08.2022 filed by one Ramesh Mazumdar, but we fail to understand as to how the applicant is saying that his complaint was not dealt with in the inspection report dated 13.03.2023, which is annexed as Annexure-A13 (pages 292 and 293 of the paper-book), which has been cited by us above O.A. No.28 OF 2024(WZ) Page 7 of 13 because the affidavit in support of it states that the inspection was conducted in presence of the applicant itself and it is also established from the inspection report that on the date of inspection i.e. 13.03.2023, it has been recorded as "At site, the complainant Mr. Sagardeep A. Sirsaikar was present". So, the ground set up by the applicant that his complaint was not considered by the GCZMA appears to be belied. Even if, for the sake of argument, the applicant's contention that his complaint was not considered, at the time of earlier hearing, be taken to be true, we had given an opportunity to the complainant/applicant to visit the site in question in presence of representative of GCZMA and that of District Collector to verify as to whether the claim of the GCZMA about demolition having been carried out, was correct or not, he declined and states that his complaint did not contain full facts as regards illegal construction because he did not have an authority to go inside the premises in question, so other structures which would have been constructed illegally could not have been pointed out by him in his complaint and because of that only, he had prayed for an inspection to be ordered to be conducted by the Joint Committee for ascertainment of all illegal structures.
8. We are of the view that whatever has been stated in the complaint made by the applicant would be treated to have given him a cause of action and because of that only he has approached this Tribunal. If any additional structure is found constructed illegally, a separate cause of action would have arisen therefor and he could move this Tribunal separately for that. It appears that the applicant is bent upon enhancing the scope of this application by keeping open as to what structures are there, which could have been constructed illegally by respondent Nos.2 to 5, which also needs to be reviewed by this Tribunal in this proceeding. But we are not in agreement in this regard. We may also make it clear that as far as the identification of illegal structure inside the premises in question is concerned, that is a place where anybody could make entry O.A. No.28 OF 2024(WZ) Page 8 of 13 and could take photographs of illegal structures for the sake of evidence, which could be led and for which, no specific permission would be required to enter the premises.
9. Having pointed out the aforesaid site inspection report, learned counsel for the applicant tried to impress upon us that this report would show that there was concrete and masonry retaining walls. Along the pathway, there was concrete gutter. The foundation of shack projecting out from the cliff towards seaward was supported by MS sections placed on concrete foundation. So, the learned counsel argued that all these structures where concrete was used, could not have been used as the same would give it a nature of permanent structure. Therefore, all these concrete structures were needed to be demolished, which was not done the same being within 200 mtrs of HTL, hence falling in NDZ area.
10. In response to above argument, learned counsel for respondent No.1
- GCZMA pointed out Clause (ii) of the Conclusion and Recommendation of the aforesaid site inspection report, wherein it is recorded that as per the CRZ Regulation, no permanent construction is permissible within the CRZ-III (NDZ) area except the repair or reconstruction of the old structure existing prior to 1991, with proper permission from GCZMA. So, it was urged by her that whatever structure already existed prior to 1991, even if that was of concrete, for which permission was granted for its repairs, the same cannot be said to be illegal. Hence, if some structure was there, in which concrete was used, the same was found to be there with the permission. Hence, the same could not have been ordered to be demolished.
11. Respondent No.1 - GCZMA has filed additional reply-affidavit dated 29.10.2024, copy of which is stated to have already been served to the applicant and no rejoinder has been filed. In the said affidavit, it is clearly stated that pursuant to the show-cause notice dated 19.05.2023, respondent No.1 carried out the site inspection of the property in question O.A. No.28 OF 2024(WZ) Page 9 of 13 on 22.11.2023. Thereafter, respondent Nos.2 to 5 - violators themselves have carried out demolition and reported compliance. Thereafter, the officials of the answering respondent carried out site inspection on 30.05.2024 to verify whether the respondents - violators have carried out self demolition. The answering respondent had issued directions to demolish the offending structures as mentioned in order/directions dated 30.07.2024 based on the site inspection reports dated 22.11.2023 and 30.05.2024, which have been complied with by the respondents - violators. The compliance report is also annexed as Annexure-B to the said affidavit (pages 640 to 641 of the paper-book), which is to the following effect:
"Background :
The Authority vide order bearing ref.no.GCZMA/H.C.M/PILSUOMOTO No. 02/2022/23-24/01/1405 dated 30/07/2024 directed the Respondent to remove concrete gutter passing through the left of the entire path, remove the retaining walls on both side of the path, remove the permanent steps leading down to upper deck which continue to the lower deck, remove the tiles and concrete of the lower deck and remove the debris and remnants of RCC footing which still exist on the site in property bearing Sy.No.213/5 of village Anjuna, Bardez-Goa. The Respondent has given a letter/representation dated 14/10/2024 inter alia stating that he has complied with the order/directions dated 30/07/2024 issued by this Authority.
Hence, as per the instruction of the Member Secretary, site inspection was fixed on 28/10/2024 to check for compliances.
Observations of site inspection :
The property bearing Sy.No.213/5 of village Anjuna of Bardez taluka, Goa falls within CRZ-III (NDZ) as per CZMP 2011.
At the time of site inspection, we have observed the following on the site.O.A. No.28 OF 2024(WZ) Page 10 of 13
On site, it was observed that the illegal violations as mentioned in the order bearing ref. No. GCZMA/H.C.M/PILSUOMOTO No. 02/2022/23-24/01/1405 dated 30/07/2024 comprising of "concrete gutter passing through the left of the entire path, remove the retaining walls on both side of the path, remove the permanent steps leading down to upper deck which continue to the lower deck, remove the tiles and concrete of the lower deck and remove the debris and remnants of RCC footing which still exist on the site" have been demolished/removed. The photographs are annexed at "Annexure-I".
The other temporary structures existing in property bearing Sy.No.213/5 of village Anjuna, Bardez-Goa are in accordance with the approved plans which had been conveyed by this Authority.
With regard to Sy.No.213/6 and 206/1 of village Anjuna, Bardez-Goa, it is observed that there is no encroachments/illegal construction carried out by the Respondent. The photographs are annexed at "Annexure-II"."
12. It is apparent from the above reply that as per the compliance report, all the structures, which were found illegal in the property Survey No.213/5 of village Anjuna, which fell within CRZ-III (NDZ) as per CZMP 2011, have been demolished and there was no encroachment found in Survey Nos.213/6 and 206/1 of village Anjuna.
13. We have already noted above that when we gave liberty to the applicant after receipt of the report of GCZMA - respondent NO.1 that this is the current status with respect to the above survey number, which was part and parcel of the present complaint/Original Application as well, wherein relief was prayed regarding demolition of illegal structures, the same stood already demolished and the same could have been got verified by the applicant also, for which a team was proposed to visit with him the site in question comprising one representative each of respondent No.1 - GCZMA and District Collector to verify the same, but the applicant appears to have declined the same and stated that he cannot ascertain as he was not sure, when he moved an application, as to which other O.A. No.28 OF 2024(WZ) Page 11 of 13 structures were also illegal inside the premises and therefore, the complaint contained few such illegal structures. On hearing this, we declined to grant him further opportunity because he appeared to further extend the scope of present Original Application, as already noted by us above.
14. We do not disbelieve the site inspection report submitted by respondent No.1 - GCZMA regarding demolition of illegal structures in above survey number.
15. As regards prayer (D) made by the applicant in this Original Application pertaining to a direction to be issued to Goa Coastal zone Management Authority (GCZMA) - respondent No.1 that it should publish all the Completion Certificates issued for erection of temporary shacks/huts etc including pictures of such structures on its official website, we are of the view that it does not fall within the domain of respondent No.1 because it grants permission for construction and Completion Certificate is issued by the local bodies/authorities. Therefore, this relief cannot be granted.
16. As far as prayer (E) in the Original Application is concerned, which is to the effect that a direction be issued to the National Coastal Zone Management Authority (NCZMA) - respondent No. 7 to set up a Committee to determine Environmental Compensation to be recovered for violations of CRZ Rules pertaining to permanent constructions of shacks, huts, cottages etc in Goa and submit its report before this Tribunal for approval, regarding this, respondent No.7 - NCZMA, in their affidavit dated 25.09.2023, in paragraph No.12, has made it clear that the MoEF&CC, vide Office Memorandum dated 19.02.2021, had issued the "Procedure for dealing with violations arising due to not obtaining a prior CRZ clearance for permissible activities-regarding". The said Office Memorandum has also O.A. No.28 OF 2024(WZ) Page 12 of 13 been reproduced therein. In paragraph No.13 of the said affidavit, it is stated that the said Office Memorandum dated 19.02.2021 was stayed by the Hon'ble Madras High Court in Writ Petition (MD) No.8866 of 3032 in the case of Fatima Vs. Union of India vide order dated 13.04.2021. Hence, the said relief (E) also cannot be granted at this stage because of the stay being in force.
17. With the above observations, we dispose of this Original Application.
18. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM December 03, 2024 O.A. No.05 OF 2023(WZ) npj O.A. No.28 OF 2024(WZ) Page 13 of 13