National Green Tribunal
Mr. Pedrito Misquitta vs The Member Secretary Goa Coastal Zone ... on 15 October, 2020
Item No. 03 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 46/2016 (WZ)
Pedrito Misquita & Anr. Appellant(s)
Versus
Member Secretary, GCZMA Respondent(s)
Date of hearing: 15.10.2020
Date of Uploading of order: 20.10.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Appellant(s) : Mr. Sangramsingh R. Bhonsle, Mr. Siddharth A.
Mehta, Ms. Samridhi S. Jain and Mr. Nrupal
Dingankar, Advocates
For Respondent(s) : Mrs. Fawia Mesquita, Advocate for R-1
Mr. D.M.Gupte, Advocate for R-2
ORDER
1. The present appeal has been filed against the order dated 21.07.2016 passed by respondent- Goa Coastal Zone Management Authority (GCZMA) directing the Appellant to demolish the illegal construction of new structure of ground plus 1st floor being carried out in the property bearing Survey No. 44/4 of Village Candolim, Bardez-Goa, on the ground that the structure is unauthorised construction and against the provisions of CRZ Notification, 1991. A show cause notice was issued with regard to the illegal construction and the appellant filed the reply. It is alleged by the appellant that the impugned property was legally constructed by late father of the appellant no. 1 much prior to 1991 and same was used by the family of appellant no. 1 for the purpose of godown for storage of coconuts etc. The issue pertaining to illegal construction 1 in violation to CRZ Notification, 1991 was a subject matter of Writ Petition taken up by the Hon'ble High Court of Bombay at Goa in W.P. No. 422/1998 with W.P. No. 99/1999. Issues raised in these petitions were with regard to restraining the authorities for granting permission for new residential units or development in CRZ-III Zone contrary to the provisions of CRZ Notification, 1991 and further to remove all constructions in CRZ-III Zone in Village Candolim and Calangute which have been constructed in violation of CRZ Notification, 1991. The Hon'ble High Court vide its order dated 13.10.2006 disposed of the matter by directing the authorities to identify the structure construction of the nature not permissible and has been permitted or constructed after the date of Notification in the zone of Goa and further directed the authority to take action against the same in accordance with law.
2. Furthermore, the issue of illegal construction within the State of Goa from the High Tide Line (HTL) upto 200 meters was a subject matter of dispute before the Hon'ble High Court of Bombay in Suo Moto Writ Petition No. 02 of 2006. Subsequently, the Hon'ble High Court vide its order dated 17.07.2007 noted that there were many structures existing in the NDZ area, some of which might have come prior to the CRZ Regulation, 1991 coming into force and in order to identify such structures, the Village Panchayats were ordered to be impleaded. Thereafter, the Hon'ble High Court vide a direction dated 26.09.2007 directed all the Village Panchayat on the basis of the map prepared by the Directorate of Settlement and Land Records identify structures existing as on 19.02.1991 and to take legal action according to law. In pursuance of the order dated 26.09.2007, the village Panchayat of Candolim on 22.01.2009 2 issued a show cause notice to the late father Mr. Jose Misquita of the appellants whereby, the Panchayat was of the opinion that structure in Survey No. 44/4 PT Sheet No. 24, Sr. No 44 PT Sheet No. 784 is construction within CRZ area and, therefore, called upon the late father of the appellants show cause that the said structure is legal and satisfy the Panchayat about the legality of the structure within 15 days of the receipt of the notice.
3. In pursuance of the show cause notice, the appellant no. 1 on 04.03.2009 filed a reply stating that the father of the appellant no. 1 to whom the show cause notice dated 22.01.2009 had expired in 1983 and that the appellant no. 1 was one of the legal heirs of the property bearing Survey No. 44/4. The appellant no. 1 in the said reply stated that the said structure was constructed much prior to 19.02.1991, the date on which the CRZ Regulation, 1991 came into effect and the same was being used as a godown to store coconuts till 1993. Thereafter, since 1993 the appellant no. 2 has been using the said premise as a garment shop, handicraft shop etc. after obtaining the NOC from the village Panchayat dated 20.12.1993. The appellant no. 1 further contended that since the structure was very old, no records are being maintained.
4. The respondent sent a team for an inspection and after inspection, the report was submitted with reference to an illegal construction of a new structure in the impugned property being carried out by the appellants. A show cause notice was issued and after giving an opportunity of hearing order was passed by the GCZMA. It is further argued that the authorities had issued the impugned order without application of mind and appellant was not given an opportunity of hearing and further that the order passed by the 3 Hon'ble High Court has not been legally interpreted in the way as mentioned in the application and it is further argued that the documents which are later on filed or being filed before this Tribunal has not been considered by the GCZMA.
5. By filing the affidavit, respondent no. 1 has submitted that construction as alleged was unauthorised and in violation of CRZ Notification and the version of the appellant that in view of the proceedings of Writ Petition No. 422/1998 with Writ Petition No. 99/1999 merely because the village Panchayat of Candolim did not enlist the impugned structure does not mean that the structure was in existence prior to 1991 or it does not permit the appellant to raise any further construction. After inspection, the construction was found to be illegal and unauthorised and no permission has been sought from the GCZMA. It is further stated that the appellant has not shown any authority from the GCZMA or the Competent Authority to raise the construction and thus, after an inspection, it was found that it was illegal and unauthorised and a show cause notice was issued to the appellant and after giving opportunity of hearing, the order was passed in light of the compliance of the CRZ Notification.
6. Learned Counsel appearing for the GCZMA has submitted that there is no controversy on the point that the structure is within NDZ and not a single permission has been taken from the GCZMA to put up the construction. Nothing has been shown before the Competent Authorities that the construction existed prior to 1991 except for one affidavit of farmer village panchayat member and in the absence of any material document the affidavit cannot be basis of the ownership or the structure to verify that it existed prior to 4 1991. It was for the first time in 1993, the appellant no. 2 applies to Panchayat for permission to run a shop/general store and for house tax assessment. The Panchayat has no jurisdiction to decide on construction in CRZ area. Inspite of that the Panchayat has issued house number which was not tenable in the eyes of law. It is further argued that the report dated 25.05.2016 indicates there are shops on ground floor and structure on 1st floor. Again there is no document to show that the structure existed prior to 1991. It is further argued that the appellant has not only made illegal and unauthorised construction but also running it commercially which is not permissible and not have permission from the GCZMA under para 5/5.3 of the Notification. Though, it is not proved by the cogent evidence and document that the structure existed prior to 1991 even if it is taken into account, the appellant could not have raised godown and increased the plinth to construct a ground plus first structure without any permission from the Competent Authority. It is in clear violation of the CRZ Notification.
7. The appellant has filed an Interlocutory Application No. 108/2020 with the prayer that vide this application the appellant seeks liberty to bring on record additional documents which are said to be relevant and material for deciding the right of the parties which is a subject matter of the present litigation. It is admitted fact that these documents were never produced before the respondent no. 1 in the proceedings conducted in pursuance of the show cause notice dated 29.02.2016. But it is argued that documents are just necessary for adjudicating the dispute between the parties as they substantially indicate the rights of the appellants in the present appeal. It is alleged that the appellant no. 2 is the wife of the 5 appellant no. 1 and the owner of the property. It is argued that appellant no. 2 had sought a certificate from the village Panchayat of Candolim, Bardez-Goa seeking information and record as to whether the house structure at survey no. 44/4 existed on the old Cadastral Plan and existed prior to the year 1991. The learned counsel appearing for the GCZMA has submitted that any document which was issued by the Authority not competent to issue it that too during the period of litigation cannot be trusted upon and cannot be taken into account. At present, the village Panchayat has no authority to issue any certificate and has no relevance because the matter had been heard and decided by the GCZMA and at the time of hearing, the appellant was given an opportunity of hearing and to produce the documents. The issuing Authority has no authority to issue it and thus, this paper has no relevance at all. It is further argued that appellant no. 1 under Right to Information Act sought some documents dated 06.02.2020 provided a copy of the old Cadastral Plan bearing no. 1055, 1058 and 1059 and after the perusal a reference can be drawn that the structure was in existence in 1991. It is further argued that in terms of Section 19 of NGT Act, this Tribunal is governed by the principles of natural justice. Principle of natural justice does not mean that the matter can be reopened at any stage and at any time. The appellant has made a request that the matter should be remanded back for further hearing before the GCZMA.
8. In the present case, nothing has been shown by the petitioner that there is a case of failure to exercise the jurisdiction or excess or abuse of discretionary power vested to the respondents. 6
9. Learned counsel for the petitioner has submitted that the opportunity of hearing was not provided to the petitioner before passing the order impugned.
10. On the other hand, learned counsel for the respondents has submitted that the opportunity of hearing was provided by the petitioner.
11. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India & Ors., AIR 1984 SC 273; N.K. Prasada Vs. Government of India & Ors., (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC & Anr. Vs. S.G. Kotturappa & Anr., (2005) 3 SCC 409; and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.
12. In Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965, the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be 7 exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
13. Hon'ble the Apex Court, in 2004 (3) SCC 445, Piedade Filomena Gonsalves vs. State of Goa and Ors. dated 11.03.2004 held as follows:
"6.The Coastal Regulation Zone Notifications have been issued in the interest of protecting environment and ecology in the coastal area. Construction raised in violation of such regulations cannot be lightly condoned. We do not think that the appellant is entitled to any relief. No fault can be found with the view taken by the High Court in its impugned judgment."
14. Hon'ble the Supreme Court in 2016 (10) SCC 705, Anil Hoble Vs. Sashinath Sethi held as follows:
"10. We find that when the appellant purchased the subject plot vide registered sale deed dated 3-8-1992, only a small structure at the corner of the said plot was in existence and was used as a garage and which was indisputably within 100 m from the high tide line. On this finding, it necessarily follows, that the structure as it exists now is quite different -- both in shape, size and location being in the middle of the plot. Obviously, it is an unauthorised structure constructed after 19- 2-1991. The CRZ Policy dated 19-2-1991 prohibits any construction up to 200 m from the high tide line. It is to be treated as "No Development Zone", except for repairs of existing "authorised structures" not exceeding specific permissible FSI, plinth area and other norms for permissible activities including facilities essential for such activity under the Notification.
11. The relevant clause in the said Notification, dealing with land area falling within CRZ (III) area reads thus:
"...
CRZ-III 8
(i) The area up to 200 m 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 authorised structure not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the Notification including facilities essential for such certificates. An authority designated by the State Government/Union Territory Administration may permit construction of facilities for water supply, drainage and sewerage for requirements of local inhabitants. However, the following used (sic users) may be permissible in this zone: agriculture, horticulture, gardens, pasmres, parks, play fields, forestry and salt manufacturing from sea water.
(ii) Development of vacant plots between 200 and 500 m of high tide line in designated areas of CRZ (III) with prior approval of Ministry of Environment and Forests (MoEF) permitted for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in guidelines at Annexure II.
(iii) Construction/Reconstruction of dwelling units between 200 and 500 m of the high tide line permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction 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 per cent of the plot size; the overall height of construction shall not exceed 9 m and construction shall not be more than 2 floors-ground floor plus one floor. Construction is allowed for permissible activities under the Notification including facilities essential for such activities. An authority designated by State Government/Union Territory Administration may permit construction of public rain shelters, community toilets, water supply, drainage, sewerage, roads and bridges. The said authority may also permit construction of schools and dispensaries, for local 14 inhabitants of the area, for those panchayats the major part of which falls within CRZ if no other area is available for construction of such facilities.
(iv) Reconstruction/Alterations of an existing authorised building permitted subject to (i) to (iii) above."
14. The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19-2- 1991. That being an unauthorised structure within the meaning of sub-clause (i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. 9
Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable.
15. In this view of the matter, it is not necessary for us to dilate on the argument as to whether the CRZ Policy prohibits change of user of the structure which was in existence on 19- 2-1991, so as to be used as a restaurant and bar. In our opinion, on the facts of the present case, no substantial question of law much less of great public importance arises for our consideration.
16. Hence, this appeal must fail and the same is, therefore, dismissed with no order as to costs."
15. In Kerala State Coastal Zone Management Authority Vs. State of Kerala 2019 (7) SCC 248, it was held:
"5. The area in which the respondents have carried out construction activities is part of the tidally influenced water body and the construction activities in those areas are strictly restricted under the provisions of the CRZ notifications. Uncontrolled construction activities in these areas would have devastating effects on the natural water flow that may ultimately result in severe natural calamities. The expert opinions suggest that the devastating floods faced by Uttarakhand in recent years and Tamil Nadu this year are the immediate result of uncontrolled construction activities on river shores and unscrupulous trespass into the natural path 15 of backwaters. The Coastal Zone Management Plan (CZMP) has been prepared to check these types of activities and construction activities of all types in the notified areas. The High Court has ignored the significance of approved CZMP.
6. As per the appellant, these construction activities are taking place in critically vulnerable coastal areas which are notified as CRZ-III. The Panchayats have issued these permissions in violation of relevant statutory provisions and CRZ notifications. The Vigilance Section of Local SelfGovernment Department, Government of Kerala detected these violations and anomalies in the issue of building permits and hence directed the bodies concerned to revoke all the flawed building permits exercising its powers under Rules 16 and 23 of the Kerala Municipality Building Rules, 1999 (the 1999 Rules).
12. It is also relevant to take note of Rule 23(4) of the 1999 Rules which is extracted below:
"23. (4) Any land development or redevelopment or building construction or reconstruction in any area notified by the Government of India as a coastal regulation zone under the Environment (Protection) Act, 1986 (29 of 1986) and rules made thereunder shall be 10 subject to the restrictions contained in the said notification as amended from time to time."
13. It is necessary for the local authority to follow the restrictions imposed by the notification, as amended from time to time. Thus, it was not open to the local authority i.e. Panchayat, in view of the notification of 1991 to grant any kind of permission without the concurrence of Kerala State Coastal Zone Management Authority. Admittedly, Panchayat has not forwarded any such applications for building permissions and there is no concurrence or permission granted by the Kerala State Coastal Zone Management Authority. As such, once a due inquiry has been held by the Committee, there is no escape from the conclusion that the area fell within CRZ-III, it was wholly impermissible and unauthorised construction within the prohibited area. Judicial notice is taken of recent devastation in Kerala which had taken place due to heavy rains compounded by such unbridled construction activities resulting in colossal loss of human life and property due to such unauthorised activity."
14. The Court in Vaamika Island (Green Lagoon Resort) v. Union of India, has observed: (SCC pp. 767-68, paras 26-28) "26. The petitioner had effected the construction in violation of the provisions of 1991 and 2011 Notifications as well as Map No. 32-A, so found by the High Court. The factual details of the same and where actually the portion of some of the properties of the petitioner in Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paras 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the Notification issued in 1991 are concerned, they are clearly in violation of this notification hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7-3-1995, 17-7-1996 directed all the Panchayats to strictly follow the provisions of CRZ notification which it was found not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of the 2011 Notification and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notifications and the report of the Expert Committee constituted by the Kerala State Council for Science, Technology and Environment (KSCSTE) was accepted.
27. We are of the considered view that the above direction was issued by the High Court taking into 11 consideration the larger public interest and to save Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognising the socio-economic importance of this waterbody, it has recently been scheduled under "vulnerable wetlands to be protected"
and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the abovementioned perspective.
28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of the 1991 and 2011 CRZ notifications are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa, wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned.
16. Further, reference has also been made to a decision of the Kerala High Court in Ratheesh K.R. V. State of Kerala. The same is extracted below:
"108. We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument."
17. We find that the view taken by the Kerala High Court in the aforesaid decision is appropriate.
18. In the instant case, permission granted by the Panchayat was illegal and void. No such development activity could have taken place in prohibited zone. In view of the findings of the Enquiry Committee, let all the structures be removed forthwith within a period of one month from today and compliance be reported to this Court."
16. It is argued that the order issued by the respondent no. 1 is without jurisdiction and without application of the mind and thus is not to be complied with. It is to be noted that even if the order 12 as stated by the appellant is without application of the mind but it was contested for more than two times before the Hon'ble High Court and it was passed by a competent authority having jurisdiction to decide it, the appellant is bound to follow the orders especially the directions issued by the Hon'ble High Court.
17. In a case reported in 2011 (3) SCC 364, Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, it was held as follows:
"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Man jeri Manikoth Naduvil, (1996) 1 SCC 435, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443, M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, (2009) 6 SCC 194, this court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
17. In State of Punjab V. Gurdev Singh this court held that a party aggrieved by the in validity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him.
While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC, wherein Lord Radchiffe observed: (AC pp. 769-70) "...An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity (on) its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
18. In Sultan Sadik v. Sanjay Raj Subba, (2004) 2 SCC 1377, this court took a view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
13
19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."
18. It is to be noted that when the CRZ Notification came into force in 1991, the set back of 200 meters or 500 meters from HTL became mandatory for open sea fronts. But it was observed that the term tidal action and the concept of HTL was deliberately being misinterpreted by vested interest who tried to undermine the essence of the regulations, particularly, in the case of rivers. It is to be noted that the definitions and guidelines proposed by the Naval Hydrographic Office is to be taken into account and accordingly, HTL is to be considered as the line up to which the highest water reaches during spring tide. Hon'ble the High Court in the Writ Petition No. 422/1988 issued directions to conduct survey and inquiry as regards the number of dwelling units and all other structures and constructions which were existed in the CRZ- III in Goa and to identify on the basis of permission granted for construction which are in excess of double the units with regard to those which were existed on 19.02.1991 and to conduct enquiry and fix responsibility for violation of CRZ Notification in relation to Clause 3 of CRZ-III zone and to take appropriate action against the persons responsible for such violation of the provision of the Environment (Protection) Act, 1986 and the said Notification in relation to the CRZ-III zone. The time line was given by the Hon'ble 14 Court to demolish the structures coming within the purview of Clause 3 and in compliance thereof, the learned counsel appearing for the GCZMA has submitted that show cause notice was issued against the appellant which shows that the construction as alleged and which was found to be unauthorised by the Expert Committee was subject of decision to be taken by the GCZMA and after giving an opportunity of hearing to the appellant, the GCZMA proceeded and found that the structure was in violation of CRZ Notification and accordingly, the order of demolition was passed. The perusal of order impugned shows that opportunity of hearing was given to the appellant and after considering the objections raised by the appellant and after giving him opportunity of hearing, the order was passed after due application of mind. Thus, contentions of the learned counsel appearing for the appellant that there was no application of mind or there is violation of principle of natural justice are not tenable.
19. Considering the totality of the fore-going discussions, we are of the view that the opportunity of hearing was given to the appellant and there was no violation of principle of natural justice. Accordingly, Appeal No. 46/2016 (WZ)/with I.A. are destitute of merits and deserves to be dismissed and dismissed accordingly as to no order to cost.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM October 20, 2020 Appeal No. 46/2016 (WZ) R & AG 15