National Green Tribunal
Agnelo Alias Albert Fernandes vs Goa Coastal Zone Management Authority on 2 September, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 07 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 16/2022
(Earlier Appeal No. 09/2022 (WZ))
(I.A. No.29/2022 (WZ)
Agnelo Fernandes & Anr. Appellant(s)
Versus
GCZMA & Ors. Respondent(s)
Date of hearing: 02.09.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Appellant: Mr. Dhruv Mehta, Senior Advocate with Mr. Shankar
Swaminathan, Advocate
Respondent(s): Mr. Sangramsingh R. Bhonsle & Ms. Samridhi S. Jain, Advocates
for R - 2
Mr. Pankaj Pai Vernekar, Advocate for R - 3
ORDER
1. This appeal has been preferred against order dated 11.02.2022 passed by the GCZMA under Section 5 of the Environment (Protection) Act, 1986 directing demolition of illegal constructions raised by the appellant in violation of the CRZ Notification.
2. The operative part of the order is reproduced below:-
"NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3975 (E) dated 31/10/2019 issued by the Ministry of 1 Environment & Forests, Government of India, hereby directs M/s Zinho's Beach Resort through Proprietor Mrs Conceicao Fernandes and Mr Agnelo Fernandes; M/s Zinhos (L) Beach Resort through Proprietor Mrs Filomena Fernandes; M/s Zinhos 1 Beach Resort through Proprietor Mrs Conceicao Fernandes, all resident of House No.7/3, Saunta Vaddo, Calangute, Bardez, Goa; to demolish all the structures herein: i.e. (i) Illegally constructed three storied (G+2) Guest House used for commercial purpose; (ii) Illegally constructed 15 Rooms, named as M/s Zinhos (L) Beach Resort. (iii) Illegally constructed 10 Rooms named as M/s Zinhos 1 Beach Resort. (iv) Illegally constructed 07 Rooms named as M/s Zinho's Beach Resort. (v) Illegally constructed Restaurant, and (vi) Illegally constructed a Swimming Pool of the Respondent, located in the property bearing Sy. No. 243; 243/13; 243/13A and 243/4 of the Village of Calangute, Bardez, Goa as identified in Plan drawn by DSLR dated 26/03/2021; annexed hereto and as decided in the 287th GCZMA meeting held on 27/01/2021and further to restore the land to its original condition, within 30 days from the date of receipt of this order. The Dy. Collector & S.D.O, Bardez, Mapusa, Goa to verify if the said structures are demolished as per these directives failing which the concerned Deputy Collector/ S.D.O shall demolish all the structures to enable restoration of land to its original state within 15 days and recover the expenses incurred from Mrs Conceicao Fernandes and Mr Agnelo Fernandes, Mrs Filomena Fernandes; Mrs Conceicao Fernandes as the arrears of land revenue. Further, Dy. Collector & S.D.O, Bardez, Mapusa, Goa is required to submit a compliance report in respect of above directions to the GCZMA within next 3 days of expiry of the aforementioned time period of 30 days."
3. The impugned order shows that acting upon the complaint of Respondent No. 2, GCZMA constituted a Committee to ascertain facts and thereafter issued show cause notice to the appellant on 18.11.2020 to show cause as to why illegal construction be not demolished.
4. The matter was considered in the meeting held on 21.09.2021 and considered the defence of the appellant that the structure existed prior to 1991, before publication of CRZ notification and was not thus liable to be demolished. The appellant relied upon letter of the village Panchayat dated 10.08.1992 by which the Panchayat gave NOC to run a guesthouse. Another document relied upon was license dated 31.03.1990 by the Panchayat for repairs. Letter of Tourism Department dated 11.03.1993 permitting to run hotel was also produced. It was further 2 claimed that the structure existed since 1971 and the Mamlatdar had registered the structure as Mundkar on 27.07.1987. On consideration, the GCZMA did not accept the stand of the appellant that the structure existed prior to 19.02.1991.
5. The GCZMA framed the following issues for consideration:-
"(I) Whether the property under Sy No. 243/13-A and 243/4 of Calangute Village of the Respondents falls within NDZ area?
(II) Whether the offending development in Sy No 243/13-A and 243/4 of Calangute Village was existing prior to 19/02/1991?
(III) Whether the area occupied by development/structure existing as on 19/02/1991 would be saved from demolition?"
6. On first issue, it was held that the area fell in NDZ. On second issue, it was held that the structure did not exist prior 19.02.1991. On third issue it was held that since there was redevelopment post 19.02.1991, the structure was illegal.
7. Relevant extracts from the impugned order are as follows:-
"The Authority noted that even though it shows that there existed a small structure on site at the time of promulgation of the survey records; no benefit can be given to the Respondents as the old structures existing as shown in the survey plan are no longer in its original condition; as shown in the mapping carried out by the DSLR in 26/03/2021.
The Respondents have taken a plea that the structure in the property bearing Survey No, 243/13A, was a Mundkarial Structure and that Mr. Angelo Fernandes was a Mundkar therein respect to the suit property. The Respondents in support of his statement that he is a Mundkar had produced a scanned copy printout of the letter dated 16/03/1990; made to the Mamlatdar of Bardez at Mapusa, Goa for the purpose of Registration of a Mundkar.
The Authority noted that, firstly, the document produced was merely an application signed by the party (Mr. Agnelo alias Albert Fernandes) but does not bear any inward stamp of the Mamlatdar of Bardez, to prove that the application was inwarded in the Office of the Mamlatdar for the purpose of registration as a Mundkar. Secondly, the Respondents have also failed to produce the order issued by the Mamlatdar of Bardez pursuant to the said application. Presuming that the application was of 1990; the Respondents should have been declared as Mundkar considering the fact that we are now in the 3 year 2022. Further, the said application for registration as Mundkar does not contain the survey number of the property wherein mundkarship is claimed. The Authority noted that for the purpose of declaration as a Mundkar the survey number of the property to which he seeks registration is a must which the Respondents have failed to mention. Neither does the document mention the area of the structure existing as on its date. Be that as it may, the purported application dated 16/03/1990 is incomplete and does not assist the case of the Respondents and the same cannot be relied on account of the discrepancies mentioned above.
The Respondents sought to rely on a letter from the Office of the Mamlatdar of Bardez dated 27/07/1987; issued to Emilian Fernandes and in the letter, it makes reference to application dated 21/06/1978. It is pertinent to note that reliance cannot be placed on this letter, as this letter does not prove any connection with this matter in issue. The Respondents have miserably failed to establish any connection of this letter with this case. The Respondents have also failed to produce the purchase document on record even though he has made a statement in his reply stating that the property wherein the structure is standing was indeed purchased by him.
The Authority noted that the Respondents in the reply had stated that the structure standing in Sy. No 243/13 A; consisted of ground plus two floors, wherein part of the ground floor was used as his residence and somewhere in the year 1986-87; the remaining part of the Ground Floor, the First Floor and the Second Floor was let out to guests. Further, the Respondents to substantiate their case; sought reliance on the letter dated 31/03/1990 issued by the Village Panchayat of Calangute, stating that vide resolution no.4 (VII)3; the Village Panchayat of Calangute had unanimously resolved to issue permission for repairs and renovation of the existing floors of the guest house and a kitchen in Sy No. 243/13. The Authority noted that the NOC granted by the Village Panchayat for repairs was for the structure situated in Sy No 243/13 and the Respondents in reply have categorically stated that the structure is located in Sy. No 243/13A. Moreover, the plan drawn by the DSLR dated 26/03/2021 also clearly shows that the structure falls in Sy No. 243/13-A. The Authority noted that there is no corroboration between the reply and the document produced and in view of the same the document cannot be considered as the Respondents have failed to prove beyond doubt that the structure in question was standing prior to 1991.
Furthermore, it may be noted that the Respondents have produced yet another document which raises a doubt in the mind of the Authority; wherein the letter dated 10/08/1992, which is supposedly issued by the Sarpanch of the Village Panchayat of Calangute; but what surprises this Authority is that the same letter dated 10/08/1992; strangely is not issued on the letterhead of the Village Panchayat of Calangute.4
The Complainant raised the authenticity of the documents produced and stated that the same were manipulated, fabricated and manufactured for the purpose of saving the structures of the Respondents. The Authority however decided to verify the authenticity of the documents/ permission granted by the Village Panchayat of Calangute given to the Respondents Mr. Angelo Fernandes and his wife Mrs. Conceicao Fernandes and this Authority wrote a letter to the Village Panchayat of Calangute directing them as under, "The Respondent has relied on the documents mentioned herein below: (i) letter dated 10/8/1992 bearing no CAL/F- 71/802/92-93.(ii) Village Panchayat of Calangute letter bearing no. VP/Cal/F-62/89-90/2018 dated 31st March 1990.
In view of above, you are hereby directed to verb the authenticity of the approval granted to from your records and submit a copy maintained by your office, register wherein a resolution was taken by the Authority in granting the approval; Outward register extract wherein permission is given to Mr. Angelo Fernandes and Mrs. Conceicao Fernandes; along with your reply in form of an Affidavit giving the details. A detailed report in affidavit may be submitted within two days, so as to take further action in the matter".
The Village Panchayat of Calangute through its Secretary had replied vide letter dated VP/CAL/F-GCZMA/21-22/3213 dated 23/11/21 stating that the Panchayat had granted the approvals. The Panchayat has failed to support its statement by backing with any evidence or documentary proof as requested for by this Authority. This Authority had specifically requested for copies from the records of the Panchayat, the Outward Register wherein the letter was outwarded; the copy of the Resolution taken in its respective meeting for grant of an approval and a reply in affidavit form from the Village Panchayat of Calangute so as to prove the authenticity and to back their statement with documents and evidence on record to which the Panchayat has also failed to submit such relevant documents. This raises a doubt in the mind of the Authority regarding the authenticity and genuineness of the respective letter produced by the Respondents hence the Reply Letter of the Panchayat dated 23/11/2021 cannot be taken on records.
The Respondents produced Certificate of Registration of the respective Hotel with the Tourism Department standing in the name of Conceicao Fernandes, and the same stands registered and is valid upto 31/03/1993; which clearly indicates and means the hotel was registered only after the year 1991.
The Respondents failed to produce on record the Repair License issued along with the appropriate approved plans. The letter relied upon by the Respondents dated 31/03/1990; is only a resolution passed to issue permissions but whether the permission was actually granted or not by the Village 5 Panchayat of Calangute would have been proved only if the Respondents had produced the Repair License along with the Approved Plan; to which the Respondents have again failed to produce and thus failed to prove that the structure was existing prior to 1991.
Without prejudice caused, the Authority noted that since this letter is actually dated 31/3/1990; it could be the last insertion of the respective letter in the books of the Village Panchayat of Calangute; as it is the financial year ending and closing books for that financial year for all practical purposes.
The Respondents state that with regard to the swimming pool the Respondents admits that the same was constructed without any approvals and leaves it to the Authority to decide. The Respondents also admit that the Restaurant is run without any approvals and that the same is illegal. However, the Authority has decided to demolish the swimming pool and the restaurant.
The Authority noted that the Deputy Collector & SDO Mapusa had submitted details regarding the verification of the structures in the property bearing Sy No 243/13, 243/13A and 243/4 of Village Calangute, Bardez Goa. The Deputy Collector relies on the report of the Talathi who has stated that upon enquiry it is noted that (i) There exists two structures on the plan dated 28/11/2003.(ii) The Talathi had stated that the Respondents had produced two receipts of house tax for both the structures and (iii) the Respondents had also produced the Copy of the Tourism License used by the Respondents for using the structure for commercial purpose. (iv) That the area shown for both the structures on the Form I & XIV is 370 sq mts. (v) That the Talathi stated that the Respondents had erected the Swimming pool without obtaining necessary permissions.
With regards to the Talathi's report, firstly, the Authority observed that the contentions of the Talathi that there exist two structures in Sy No 243/13-A as shown on the Survey Plan dated 28/11/03 cannot be relied upon as when theAuthority perused the report and maps drawn by the RSI, it revealed that a small single structure with dotted line was shown on the RSI map. The Draft CZMP also shows a single dotted structure. Moreover the recent mapping carried out by the DSLR dated 26/03/2021 also shows a single dotted small structure. Hence, this contention of the Talathi that there are two structures in Sy No. 243/13A cannot be taken into consideration.
Secondly, the Talathi to affirms his statement that there exist 2 structures relies on the house tax receipts issued by the Village Panchayat of Calangute i.e. One bearing Receipt Book no. 622 receipt 6 no 8 and the other bearing receipt book no 695 receipt no 22. If one peruses the receipt both refer to the same house no 7/3 and the 2 receipts are tax paid for the years 1983 to 1985 and the second for the year 1986 to 1988. However this does not justify that there are two structures as claimed by the Talathi of Calangute. However it is pertinent to realize and understand the blatant fact that, in the years 1986, 1988 and in the Year 1992 and 2021 that there is a variation in the Official Rubber Seal of the Village Panchayat of Calangute.
Thirdly, the Talathi seeking reliance on the Certificate issued by the Tourism Department. The Tourism permission has to be renewed every year. This certificate produced on record is valid till 31/03/1993 which means it was issued in 1992 i.e after the CRZ Notification came in force; however, the use of the structure for commercial purpose does not establish that the structure standing the property was erected with approvals.
Fourthly, that the uncultivable area shown on the Form I & XIV of the property bearing Sy. No 243/13A is 370 sq mts as per the Form I & XIV maintained by the Talathi (the Hand Written One) and on the Computerized Form I & XIV of the property bearing Sy No 243/13-A has the uncultivable area shown as 203 sq mts. Hence based on this discrepancy the contention of the Talathi that both the structures shown on the Survey Plan dated 28/11/2003 together have an area of 370 sq mts; cannot be relied upon based on the above mentioned discrepancy and hence the findings of the Talathi cannot be taken into consideration to conclude that the structure is legal.
Fifthly, the issue with regards to the Swimming Pool; the Talathi has also verified that the swimming pool has been illegally erected.
The Authority also considered the import and relevance of the report and maps prepared by Remote Sensing Instruments (RSI) Hyderabad commissioned by this Authority pursuant to directions of Hon'ble High Court in WP nos. 422/98 and 99/99. The report and maps were submitted to the Hon'ble Court which directed that they be placed on the Authority's website for information of the public. The data is in the public domain since 2009. Hence, the findings of study are binding on the Authority. The RSI map only shows a single structure existing pre-1991 that corresponds to the structure shown on the survey plan. It is yet another indication that the structure existing today has come up after the appointed day.
The Authority resolved that the Respondents have failed to establish or justify or conclude without concrete evidence placed on record, the very existence of the structures in Survey No.243/13-A and 243/4 of Calangute Village, was prior to 1991.
7The Respondents have even failed to produce title document merely relying on the application filed does not confer that the erection of the structure is with valid permissions.
The Authority agrees with submission of Ld Adv S Bhosle on behalf of the Complainant that the Goa Town & Country Planning Act came into force in 1974, and that it was mandatory to obtain prior written approval of the competent authority for carrying out any development. And that the Respondents had failed to produce any such permissions. The Authority also noted that the Goa Land Revenue Code 1968 was also in force and mandates prior permission (conversion sanad) from the Collector for any development involving change of land use to non-agricultural purpose. The Authority also noted that the Goa Daman & Diu (Village Panchayats Regulation of Buildings) Rules 1971 inter alia required prior written permission of the village Panchayat for carrying out any development within the village as also for grant of occupancy certificate.
The Respondents have miserably failed to produce the requisite documents including the Conversion Sanad, Panchayat Construction License and Occupancy Certificate, permission from GCZMA or GSCCE and Town and Country Planning Department, to prove that the structures thereon existing in property bearing Survey No. 243/13A and 243/4 of Calangute Village, have been approved by the respective Government Authorities.
The Authority relies on the decision of the Hon'ble Supreme Court in the matter of Piedade Gonsalves vs. State Of Goa(2004) 3 SCC 445;wherein the Hon'ble SC has held that the Coastal Regulation Zone Notifications have been issued in the interest of protecting the environment and ecology in the coastal areas. The constructions raised in violation of such regulations cannot be lightly condoned.
In the present matter, the Respondents claim to be in possession of a small structure in the property bearing Sy. No 243/13A located within the jurisdiction of Village Panchayat of Calangute. It is the Respondents case that earlier there existed a small structure and subsequently he has constructed a structure of G+2 made of laterite stone, which structure was used by guests prior to 1991. However, the Respondents have miserably failed to prove any or place on record any documentary evidence of the construction having carried out prior to 1991. However, the Authority noted that in place of the said old structure, the Respondents erected a G+2 RCC structure in place of the old structure and that too entirely within the NDZ and moreover, raised without any permission or approvals whatsoever thereby indulging in misadventure of raising a construction without securing permission from the competent authorities.
Hence, the issue regarding the offending development in Sy No 243/13-A and 243/4 of Calangute Village existing prior to 19/02/1991 is answered in the negative.
8Issue no. III.
The last issue that arises is whether the (plinth) area of the structure shown to be existing on the survey plan would be exempted or saved from demolition. Incidentally, the submission was canvassed by counsel for the complainant.
The Authority is unable to agree with submission of learned counsel. Once the pre-1991 structure was demolished and replaced with the G+2 structure, the original structure lost protection of the CRZ Notification 1991. The CRZ Notification protects or tolerates the development or structure, not the land on which it was once standing on.
The CRZ Notification 1991 adopts what is called as "Doctrine of Toleration" that development already carried out and in existence in accordance with laws and norms that then existed, had to be tolerated. Simultaneously, the legislative policy is also reflected in what can be styled as the "Doctrine of Containment", which means that even though what existed on the date of the notification is to be tolerated, it should not be permitted to grow beyond the dimensions upto which it was tolerated.
In the present case, the structure existing on the appointed day is no longer in existence but has been totally demolished and reconstructed with both horizontal and vertical extensions. Therefore, in the Authority's considered opinion, the entire structure is in violation and must be demolished. Accordingly, the issue is answered in the negative.
In view of the foregoing discussions, and since the Respondents have failed to produce any documentary evidence of any approvals obtained nor even prove that the structure was in existence before 1991; and moreover the old structure shown on the Survey Plan is not in the same condition as on 26/03/2021(date of survey plan obtained from the DSLR); the Authority decided to issue a Demolition Order against all the structures herein: i.e. (i) Illegally constructed three storied (G+2) Guest House used for commercial purpose; (ii) Illegally constructed 15 Rooms, named as M/s Zinhos (L) Beach Resort. (iii) Illegally constructed 10 Rooms named as M/s Zinhos 1 Beach Resort.
(iv)Illegally constructed 07 Rooms named as M/s Zinho's Beach Resort.
(v) Illegally constructed Restaurant, and (vi) Illegally constructed a Swimming Pool of the Respondents, namely M/s Zinho's Beach Resort through Proprietor Mrs Conceicao Fernandes and Mr Agnelo Fernandes; M/s Zinhos (L) Beach Resort through Proprietor Mrs Filomena Fernandes; M/s Zinhos 1 Beach Resort through Proprietor Mrs Conceicao Fernandes; all together located in the property bearing Survey Nos.243; 243/13; 243/13A and 243/4 of the Village of Calangute, Bardez, Goa".
NOW THEREFORE, the GCZMA in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 9 (Central Act 29 of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules 1986, and read with power vested with the GCZMA vide Order S.O. 3975 (E) dated 31/10/2019 issued by the Ministry of Environment & Forests, Government of India, hereby directs M/s Zinho's Beach Resort through Proprietor Mrs Conceicao Fernandes and Mr Agnelo Fernandes; M/s Zinhos (L) Beach Resort through Proprietor Mrs Filomena Fernandes; M/s Zinhos 1 Beach Resort through Proprietor Mrs Conceicao Fernandes, all resident of House No.7/3, Saunta Vaddo, Calangute, Bardez, Goa; to demolish all the structures herein: i.e. (i) Illegally constructed three storied (G+2) Guest House used for commercial purpose; (ii) Illegally constructed 15 Rooms, named as M/s Zinhos (L) Beach Resort. (iii) Illegally constructed 10 Rooms named as M/s Zinhos 1 Beach Resort.
(iv) Illegally constructed 07 Rooms named as M/s Zinho's Beach Resort. (v) Illegally constructed Restaurant, and (vi) Illegally constructed a Swimming Pool of the Respondent, located in the property bearing Sy. No. 243; 243/13; 243/13A and 243/4 of the Village of Calangute, Bardez, Goa as identified in Plan drawn by DSLR dated 26/03/2021; annexed hereto and as decided in the 287th GCZMA meeting held on 27/01/2021and further to restore the land to its original condition, within 30 days from the date of receipt of this order. The Dy. Collector & S.D.O, Bardez, Mapusa, Goa to verify if the said structures are demolished as per these directives failing which the concerned Deputy Collector/ S.D.O shall demolish all the structures to enable restoration of land to its original state within 15 days and recover the expenses incurred from Mrs Conceicao Fernandes and Mr Agnelo Fernandes, Mrs Filomena Fernandes; Mrs Conceicao Fernandes as the arrears of land revenue. Further, Dy. Collector & S.D.O, Bardez, Mapusa, Goa is required to submit a compliance report in respect of above directions to the GCZMA within next 3 days of expiry of the aforementioned time period of 30 days."
8. We have heard learned counsel for the parties.
9. Shri Dhruv Mehta, learned Senior counsel for the appellant submitted that Panchayat documents could not have been ignored and satellite image could not be taken as conclusive. It should thus be held that structure in question existed prior to the relevant date of 1991 and the impugned order be set aside. On the other hand, learned Counsel for the complainant, Mr Bhonsle supports the impugned order and submits that documents relied upon by the appellant do not match with the nature and extent of the structure in question. What the said documents show is that a small structure existed while the structure in question is a 10 massive structure with G+2 building with 36 rooms with swimming pool.
Thus, satellite image is fully reliable which establishes that the structure is post 1991. Further, environmental issues are governed by precautionary principle and reverse burden.
10. We have considered the rival submissions and are unable to accept the stand of the appellant. The documents relied upon by the appellant have been duly considered and found not reliable to show that the structure in question is pre 1991. At best the said documents show that some structure existed. On the other hand, satellite image shows that the structure in question did not exist prior to 1991. It is not disputed that area is in NDZ. It is also fairly stated that the swimming pool is constructed later. Further, the appellant has no evidence to show that prior to 1991 G+2 structure with 36 rooms existed. Even if there was some structure, the structure in existence is not the same, as rightly found in the impugned order under issue No. 3. Assumption that some structure existed prior to 1991 is only for the sake of argument to test the alternative point of the said structure being demolished and replaced by current G+2 structures subsequent to 1991. The present structure is thus new construction which is against the CRZ notification. As already noted, even according to the PP swimming pool has been constructed later. There is nothing to show that 36 rooms for commercial purposes existed prior to 1991.
11. In view of the above, we do not find any merit in the appeal. The appeal is dismissed.
12. On request of learned Senior counsel for the appellant, we suspend operation of the order for two weeks to enable to appellant to take any 11 other remedy as per law and to remove the structures, failing which the GCZMA may execute the impugned order.
I.A. No. 29/2022(WZ) also stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM September 02, 2022 Appeal No. 16/2022 (Earlier Appeal No. 09/2022 (WZ)) (I.A. No.29/2022 (WZ) A 12