National Green Tribunal
The Colva Civic And Consumer Forum vs State Of Goa on 7 September, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
Original Application No. 102/2019(WZ)
IN THE MATTER OF:
The Colva Civic and Consumer Forum
through its Secretary,
At H. No. 257/1, Bagdem,
Ward 3, Colva, Salcete, Goa- 403 708.
.....Applicant(s)
Versus
1. State of Goa
Through the Chief Secretary,
Secretariat, Porvorim, Bardez,
Goa- 403 5210
2. Goa Coastal Zone Management Authority
Through its Member Secretary,
C/o Department of Sciences, Technology & Environment,
Government of Goa,
1st floor, Pt. Deendayal Upadhyay Bhavan,
Pundalik Nagar, Alto, Porvorim,
Bardez, Goa - 403 521.
3. Hotel Silver Sands,
Colva Beach, Salcete
through its General Manager,
806, Vikas Towers, Opp. Amboli Level,
Crossing Andheri (East),
Mumbai, Maharashtra- 400 069.
4. District Collector and District Magistrate (Sought
Office of the Collector (South)
4th floor, Mathany Saldhana Administrative Complex,
Margao, Goa- 403 601.
.....Respondent(s)
Counsel for the Applicant(s):
Appellant(s) : Mr. Rahul Choudhary, Advocate
Counsel for the Respondent(s):
Respondent(s) : Mr. Anuj Jain, Advocate for R-2(GCZMA)
Page 1 of 19
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 26.08.2022
Pronounced on : 07.09.2022
JUDGMENT
1. This Original Application has been filed with the prayer that Goa Coastal Zone Management Authority(GCZMA) and the Dy. Collector, South Goa District be directed to enforce the order dated 05.12.2018 whereby the GCZMA had ordered to demolish all the illegal structures of Respondent No. 3/Hotel Silver Sands existing on Survey Nos. 24/2, 24/3, 24/12 in Colva, Salcete and to direct the Respondent No. 3 to restore the site in question in its original condition and dispose of C&D (Construction & Demolition Waste) in accordance with the Provisions of the Construction & Demolition Waste Management Rules, 2016.
2. In the body of the said application, it is submitted that the Hon'ble High Court of Bombay at Goa had taken suo moto cognizance of the illegal constructions in the CRZ area in Writ Petition No. 02/2006 and vide order dated 26.09.2007 directed all the Panchayats/Municipalities to submit action taken report with regard to construction in the NDZ/CRZ area. The Applicant filed M.C.A. No. 635/2012 in Writ Petition No. 02/2006 and highlighted the illegal constructions raised by Respondent No 3 which included major extensions of approximately 2000 sq. mtrs. post 1991, STP construction without permissions from GCZMA/Respondent No. 2 and Page 2 of 19 it was also submitted therein by him that the Respondent No. 3/Hotel Silver Sands lies completely in NDZ from the plans pertaining to Survey Nos. 24/11 and 13 of Village Colva produced by the Directorate of Settlement and Land Records (DSLR). The Respondent No. 3 failed to produce any approved construction plans and subsequent Occupancy and Completion Certificates from the Town and Country Planning Department (TCP) and the Village Panchayat. Vide order dated 12.01.2015, the Hon'b1e High Court directed Colva Village Panchayat to furnish material on record to suggest that the structures are not illegal before the GCZMA and the said Authority would examine such material after hearing the parties. In the meeting of GCZMA dated 04.04.2015, the Authority referred the case of illegal structures which were brought on record of the Hon'ble High Court by the Applicant to the Inquiry Committee, constituted under the direction of this Tribunal and directed the said Committee to examine all the documents on record and hear the parties, if required and submit a detailed report to the GCZMA. The said Inquiry Committee completed its inquiry and submitted its report to the GCZMA on 21.12.2015. Thereafter on 19.07.2018, the GCZMA issued notices for personal hearing to all the parties including the Applicant and in the Meeting dated 31.07.2018 held by the GCZMA, it was brought to the notice of it that even the Panchayat had issued demolition orders. In the meeting dated 30.10.2018, following decision was taken:-
"In view of the above observations, the Authority came to conclusion that the Respondent has undertaken large extensions without any valid permission in Survey Nos. 24/2, 24 3, 24/11 and 24/12. The old structures existing in Sy. No. 24/3 and 24/12 as shown in the Page 3 of 19 survey plan are no longer in its original condition. As per the mapping carried out by the DSLR. in 2006; new construction have come up in the Survey Nos. 2472, 24/3, 24/11 and 24/12 of Colva Village. The Authority resolved that the Respondent has failed to establish/justify existence of the structures in Survey No. 24/2 and 24/11 of Colva Village and the existence of the renovated structures in Survey No. 24/3 and 24/2 of Colva Village, as prior to 1991 with the help of document/record.
Hence the Authority resolved to pass demolition order against all the structures existing in Survey No. 24/2, 24 3, 24/11 and 24/12 of Colva Village, and direct HOTEL SELVES SANDS to stop all the commercial activity being carried out in Survey No. 24/2, 24/3, 24/11 and 24/12 of Colva Village with immediate effect."
3. Pursuant to the said decision, the GCZMA issued direction under Section 5 of the Environment (Protection) Act, 1986, directing Respondent No. 3 to demolish all the structures erected in the survey plots in question by passing the following order dated 05.12.2018 (execution of which is being sought herein) which is reproduced herein below:-
"The Authority noted that there is a structure shown on the DSLR survey plan of the property bearing Survey No. 24712, and 24 3 of Colva Village. The Authority noted that the Respondent has produced an illegible plan bearing No. DJ7I93075406/80 dated 22/08/1980 issued by the Town Planner, Town and Country Planning Department; however, the plan did not mention any survey number, and did not show the swimming pool. The Respondent has failed to produce any subsequent approvals with regards to the extensions/alterations of the structure as shown in DSLR Plan.
The Respondent had produced conversion sand of only one property bearing survey no.2 24/3 (part) but has failed to produce conversion sand of24/2, 24/11, 24/12 of Colva Village. The Respondent had produced Sale Deed executed in the year 1981, 1984a and 1985.
The Authority while considering the Sale Deed executed in the year 1981, noted that the sale deed mentions of House NO. 115 but the Respondent had failed to establish in which survey this house was situated. Further, there was no plan attached to the Deed of Sale. With regards to the safe deed in the year 1984 and 1985, which pertains to survey no. 24/12;Page 4 of 19
had a residential house standing therein,' but the Deed does not specify the area or dimensions of the House No. 429., and the plant for extensions if any(before or after 1991). In view of the above observations, the Authority came to the conclusion that the Respondent has undergone large extensions, without any valid permission in Survey No.24/2, 24/3, 24/11 and 24/12. The old structures existing in Sy. No. 24/3 and 24/12 as shown in the Survey plan were no longer in its original condition. As per the mapping carried outby the DSLR in 2006; new constructions had come up in Survey No. 24/2, 24/3, 24/11 and 24/12 of Colva Village. The Authority resolved that the Respondent has failed to establish /justify existence of the structures in Survey No. 24/3 and 24/12 of Colva Village as prior to 1991 with the help of documents /records. Hence, the Authority resolved to pass demolition order against all structures existing in Survey No. 24/2, 24/3, 24/11 and 24/12 of Colva Village, and direct HOTEL SILVER SANDS to stop all the commercial activity being carried out in Survey No. 24/2, 24/3, 24/11 and 24/12 of Colva village with immediate effect"
....
NOW THEREFORE, the GC2MA 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 3 of the Environment (Protection) Rules l986, and read with poser vested with the GCZMA vide order dated SO 3324 (E) dated 26/10/2016 issued by the Ministry of Environment Forest and Climate Change, Government of India„ hereby directed HOTEL SILVER SANDS to demolish all the structures existing in Survey No 24/2, 24/3, 24/11 and 24/12 of Colva Village, run in the name end style of Hotel Silver Sands and the Respondent HOTEL SILVER SANDS is hereby directed to stop all commercial activities being carried out in Survey No 24/2, 24/3, 24/11 and 24/12 of Colva Village with immediate eject and further to restore the land to its original condition, within 30 days from the date of receipt of this order.
4. The Respondent No. 3 challenged the said direction before NGT in Appeal No. 79/2018 (WZ) which was dismissed vide order dated 03.01.2019, the relevant portion of which is quoted herein below:-
"We have given our thoughtful submission consideration to the submission made by the Learned Counsel for the Appellant and have carefully considered the order under challenge. A bare perusal of the impugned order shows that a large extension, without any valid permission, had been made in Survey No. 24/2, 24/3, 24/11 and 24/12. It is also revealed that the old structure Page 5 of 19 existing in Survey No. 24/2, 24/3, 24/11 and 24/12. It is also revealed that the old structure existing in Survey No. 24/2, 24/3, 24/11 and 24/12 as shown in Survey plan was no longer in its original condition. As per the mapping carried out by DSLR in the year 2006, new construction had come up in Survey No. 24/2, 24/3, 24/11 and 24/12. The authority below has arrived to a finding that the Respondent has failed to establish/justify existing of the structure in Survey 24/2 and 24/11 of Coiva Village and the existence of the renovated structure in Survey No. 24/3 and 24/12 of Colva Village, as prior to 1991 with the help of any document/record.
In such a situation, the Learned Authority below has decided to order for demolition of all the structures existing in Survey Nos. 24/2, 24/3, 24/11 and 24/12of the Colva Village which are held to be unauthorised. It may also be relevant to mention here that the plan bearing no. DJ/1930/5406/80 dated 28th August, l980 issued by the Town Planner which had been produced before the authority was illegible. Furthermore the plan did not mention any survey number and did not show the swimming pool or the details of the structure. The Appellant has not placed any subsequent approvals, before the authority, with regard to extension/alteration of the structure as shown in DSLR Plan. So far as conversion of land is concerned, the .Appellant had produced only in respect of one property bearing survey no. 24/3 (part) but had failed to produce conversion of 24/2, 24/11 and 24/12 of the Colva Village. So far as the sale deed executed in the year 1981, 1984 and 1985 are concerned, there was no plan attached to them The said sale deeds also do not specify the dimensions of house number 429 and plan of extension.
Needless to say, no document relating to title or otherwise in respect of immovable property is of any relevance without specifying the requisite details about the survey number on which it is situated, the details about the measurements and a clear plan attached with the registered sale deed. In view of the aforesaid facts and circumstances and the finding arrived at by the Learned Authority below, we are of the considered opinion that no interference is called for in the impugned order. As a matter of fact, the Appellant has failed to establish before us that the findings arrived at by the Learned Authority are perverse to the material on record, in any manner. Consequently, Appeal No. 79 of 2018 stands dismissed."
4. Thereafter, the Respondent No. 3 challenged the said order dated 03.01.2019 of the NGT before the Hon'ble Supreme Court of India by Page 6 of 19 filing Civil Appeal No. 216/2019 which was dismissed vide order dated 18.01.2019.
5. Thereafter vide order dated 24.01.2019, the Dy. Collector (Revenue) directed the demolition of the illegal structures in question to be conducted on 07.02.2019 whereby Dy. Superintendent of Police, SDPO, Margao, Goa was requested to make necessary arrangements to depute twenty police constables and five female constables along with one Officer of PI Rank, two PSI as there was a likelihood of law and order problem. In the same order, the Mamlatdar, Salcete and Joint Mamlatdar were also directed to remain present during the demolition and perform the duties of the Executive Magistrate. The Member Secretary, GCZMA was made responsible for identifying the structures to be demolished and to ensure that the demolition of any structures which was stayed by the order of any competent court, shall not be carried out. The GCZMA also issued an order dated 04.02,2019 in pursuance of the order of the Dy. Collector dated 24.01.2019.
6. The Respondent No. 3 thereafter filed a Review Application before the GCZMA, seeking review/recall of the decision of the Authority dated 30.10.2018. Though, the GCZMA did not have any powers to review its order passed under the CRZ Notification, 1991 or 2011.
7. Meanwhile, the previous owners of the site in question, i.e., the predecessor of Respondent No. 3, M/s Bencomer Hotel (Goa) Pvt. Ltd. filed a Writ Petition No. 171/2019 before the Hon'ble High Court of Bombay against the demolition order by concealing material facts Page 7 of 19 regarding the proceedings before this Tribunal as well as the Hon'ble Supreme Court wherein following order was passed on 06.02.2019:-
"3. It was his contention that although an alternate remedy is available to the petitioners nonetheless he invokes the writ jurisdiction of this Court as there has been a complete violation of the principles of natural justice inasmuch as no notice was given to the petitioners and the authorities constituted under the Act were not properly constituted. In that context, he placed reliance in M. Chandru v/s. Member Secretary, Chennai Metropolitan Development Authority and another [2009 (4) SCC 72] to buttress his contention on the aspect of lack of powers of delegation in the statutory authorities and the effect thereof. In view thereof, I am inclined to issue notice to the respondents, returnable on 18/02/2019.
4. Shri Sardesai, learned Senior Advocate submits that the statutory authorities namely the respondents No. 1,4,6,7 and 8 have been duly served with the notice of the petition. None present on their behalf. Issue notice to the respondents No. 2,3 and 5, returnable on 18/02/2019.
5. In the meantime, considering the order under challenge and that the petitioner would be greatly prejudiced if the respondent No. 1 proceed with the execution of the order with the assistance of the statutory authorities, ad-interim relief is granted in terms of prayer clause 'b'.
6. Humdast permitted.
7. The parties to act on the authenticated copy of the order."
8. After passing the above order by the Hon'ble High Court of Bombay at Goa, the demolition as directed vide order dated 24.01.2019 and 04.02.2019 of the Dy. Collector was not carried out on 07.02.2019.
Page 8 of 19
9. Thereafter, the Hon'ble High Court issued clarificatory order dated 05.04.2019 in Writ Petition No. 171/2019 which is reproduced herein below:-
"Ad-interim relief already operating to continue till the next date. However, it will be open to the GCZMA to take action for stoppage of commercial activities, if any, being conducted in the subject premises."
10. Further, it is submitted that instead of complying with its direction dated 05.12.2019 (appears to be wrong as it should be 05.12.2018) and subsequent orders of demolition and stoppage of commercial activities, the Respondent No. 3 with the sole intention to delay compliance approached this Tribunal in abuse of process of law by filing Review Application No. 01/2019 (WZ), seeking review of the order dated 03.01.2019. The said Review Application was dismissed by the Tribunal vide order dated 01.05.2019. The relevant portion is quoted herein below:-
"We have given a thoughtful consideration to the case of the applicant in the review application and also carefully perused the material on record, including the order dated 03.01.2019 passed by the Tribunal and 18.01.2019 passed by the Hon'ble Supreme Court. It would suffice to say that a bare perusal of the order dated 03.01.2019 passed by the Tribunal goes to show that the appeal was heard in presence of counsel for appellant as well as respondents and it was after hearing the arguments of both the sides that the decision was given. It further goes to show that impugned order passed by Goa Coastal Zone Management Authority on 15.12.2018 was carefully considered as well as the detail facts of the case as well as documents considered by the authority including the documents which were said to be related to immovable property in question, as had been submitted by the counsel for the appellant in support of his arguments. In conclusion the Tribunal had dismissed the appeal. Looking to the manner in which the appeal was considered, arguments of the parties were noted and Page 9 of 19 detail order was passed, by no stretch of imagination it can be said that the appeal filed, 79/2018) before the Tribunal was dismissed in limine.
Similarly the appeal filed (216/2019) before .the Hon'ble Supreme Court against the order of Tribunal dated03.01.2019 had come up for hearing on 11.01.2019 and an interim order was passed in the term that till the next date of hearing, the direction given in the impugned order to demolish the property of the appellant shall not be implemented It was also ordered for listing the appeal on 18.01.2019.
...In the aforesaid facts and circumstances and the manner in which the appeal against the order of Goa Coastal Zone Management Anthony was considered and dismissed by the Tribunal, cannot be said to be a dismissal in limine. Likewise the civil appeal before the Hon'ble Supreme Court was first considered on 11.01.2019 and thereafter on 18.01.2019 whereby it was held to the Hon'ble Court was not inclined to interfere with the impugned order passed by the Tribunal, was not a consideration in limine. In such a situation, in our considered opinion .the present review application is not maintainable. The ground taken by the review applicant that the application is maintainable because of dismissal of the appeal by the Tribunal was in limine cannot be sustained. It is relevant to mention here that order of dismissal of the appeal by the Tribunal on 03.01.2019 has been affirmed by the Hon'ble Supreme Court.
In view of the above this review application has not maintainable once the order of dismissal passed by the Tribunal on merits has been upheld that Hon'ble Supreme Court holding that they are not inclined to interfere with the impugned order passed by the Tribunal. This further established that the order passed by the Tribunal on 03.01.2019 was not as order of dismissal in limine. Consequently, the Review Application No. 01/2019(WZ) is dismissed."
11. Thereafter, GCZMA again issued directions dated 15.05.2019 to the Respondent No. 3 to stop all commercial activities and immediately file a compliance report before the Authority.
12. The Hon'b1e High Court dismissed the Writ Petition No. 171 of 2019 vide order dated 18.07.2019.
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13. Thereafter, the Respondent No. 3 in order to abuse the process of law moved restoration application in the said Writ Petition which too was dismissed vide order dated 21.10.2019. Thereafter, the Respondent No. 3 in order to further delay execution of the demolition order, sent a reminder to the GCZMA to consider the Review Application filed by them in January 2019 where-on the GCZMA issued notice vide letter dated 29.07.2019 to the Applicant to appear before the Authority for personal hearing on 07.08.2019. The GCZMA ought to have dismissed the Review Application outright, instead of doing that, notice was issued to the Applicant. In response to which he appeared before the Authority and submitted written submissions and the Respondent No. 3 did not even appear on the said date before the Authority.
14. It is further submitted that the GCZMA had itself taken a stand that it does not have the power to review its decision on merits and that its power of review was only limited to procedural review. The same was considered by the Hon'b1e High Court of Bombay at Goa in the matter of Kashinath Shetye v. Goa Coastal Zone Management Authority & Ors. (WP No. 708 of 2018) vide judgment dated 25.09.2018. The relevant portion of the judgment is quoted here-in below:-
"3. The learned Advocate General today has placed on record a Resolution passed by the Goa Coastal Zone Management Authority on 28 August 2018. The Resolution states that the Goa Coastal Zone Management Authority does not have a power of review on merit and it has a limited power of procedural review. A reliance is placed on the decision of the Apex Court in Kapra Mazdoor Ekta Union Vs. Birla Cotton. Spinning and Weaving Mills Ltd. and another. The relevant portion of Extract of Minutes reads thus:Page 11 of 19
"It noted that review powers are broadly in two forms
-- review on the merit and procedural review. As far as review on merit is concerned, Hon'ble SC in Kapra Masdoor Ekta Union Vs. Birla Cotton Spinning and Weaving Mills Ltd. and another (I 3 Supreme Court Cases 777) has held that, "where a court or quasi- judicial authority having jurisdiction to adjudicate, proceeds to do so; its judgment or order can be reviewed on merit only if the Court or the quasi- judicial authority is vested with power of review by express provision or by necessary implication. The power of review is not an inherent power and must .he conferred by law either expressly or by necessary implication. Procedural review, however, belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate, proceeds to do so, but in doing so ascertains whether it has committed a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein."
Authority observed that its constitution order does not have an express provision or necessary implication conferring to it the power to review on merit. At this point the question of when the Authority becomes functus officio was also discussed and it was deemed appropriate that the Authority would become functus officio from the date of passing of the order as far as review on merit is concerned as is apparent; GCZMA has inherent power for procedural review. Cases where a decision is rendered without notice to the opposite parties or under a mistaken impression that the notice has been served or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases where power to procedural review can be invoked. However, the matters once decided by the authority and remanded back for rehearing and reconsideration by Hon'ble Courts/NGT or MoEF/NCZMA shall obviously be outside the limitation of the power to review on merit".
Thus, according to Goa Coastal Zone Management Authority, it had only power of procedural review. ....
6. Reverting back to the present case during the pendency of this Petition, by order dated 18 July 2018, the review filed by the private Respondents has been rejected. Therefore, there is no impediment for the Authority as on date to proceed with further legal process. Page 12 of 19
This would ordinarily have put an end to the matter, but we have to take note that the review was rejected on the ground that it did not fulfil the parameter of a review on merits. Indicating thereby that the GCZMA was of the impression that if the parameters were present, it could review the order on merits. This view is entirely incorrect. It has no such power of review on merits, which is made clear even as per it's own subsequent Resolution."
15. It is further submitted that the review proceedings before the GCZMA was concluded on 22.10.2019. However, no order/decision was made by the Authority till date and therefore, the Respondent No. 3 is enjoying the fruits of its illegality, hence the above prayer should be allowed.
16. The stand of Respondent No. 2/GCZMA is as follows:-
(i). Through its affidavit dated 23.08.2022, it is submitted that the GCZMA in its meeting held on 22.10.2019, deliberated upon the application of Respondent No. 3 filed for review, primarily on the ground of procedural review regarding which the answering respondent was of the view that it could grant review provided that it had skipped off vital documents or had committed lapse in following the due process to arrive at a decision. Hence, it was held by it that the case of the Respondent No. 3 was fit for a procedural view on the ground that the report of DLC is essential to check whether the structures existing on Loco, were in conformity with the approved plan of the Town & Country Planning Department.
(ii). This Tribunal had also observed in its order dated 18.03.2020 that since proceeding is underway before the Page 13 of 19 GCZMA in respect of the present matter, it would be improper to interfere until such proceeding culminates. The matter was placed in the meeting of GCZMA on 04.06.2020 wherein it was decided to call upon the parties afresh to hear the arguments on the aspect of procedural review and in its meeting held on 23.10.2021, following issues were made for determination:-
1) Whether the Authority became functus officio after the decision recorded in the 253rd meeting?
2) Whether the Authority has jurisdiction to review its decision taken at the 187th meeting held on 30.10.2018?
3) Whether the applicant/original respondent suppressed a material fact from this Authority regarding the filing and subsequent dismissal of its review petition by the Hon'ble National Green Tribunal in its order dated 01.05.2019 in review application no. 01/2019(WZ)?
(iii). Upon the above three issues, following findings were given:
"On issue no. 1, the GCZMA decided that a quasi-judicial authority becomes functus officio only when its decision is communicated or notified to the party concerned. Hence, the Respondent no. 2 rejected the submission of the Applicant/Original respondent on this count.
On issue no. 2 the GCZMA concluded that it has no jurisdiction to entertain review of its decision taken at the 187th meeting.
On issue no. 3, the GCZMA observed that it did not find any merit in the review application filed by the original respondent and hence the same stood dismissed."
(iv). Pursuant to above, the Respondent No. 2 in exercise of powers conferred under Section 5 of the Environment Act, Page 14 of 19 1986 (Central Act of 1986) read with sub-rule (3) (a) of Rule 4 of the Environment (Protection) Rules, 1986 and read with powers vested with it vide S.O. 3975(E) dated 31.10.2019 issued by the Ministry of Environment, Forest & Climate Change (MoEF&CC), Government of India dismissed the review application, directing Respondent No. 3 to demolish all structures in the aforesaid survey numbers in the Meeting held on 23.10.2021.
(v). It is further submitted that the Deputy Collector reviewed the letter dated 01.12.2021 for execution of directions to demolish all the structures in question, conducted inspection through the Talathi of Colva on 02.12.2021 to ascertain the status of the demolition. In the letter written to the Deputy Collector by the Mamlatdar, it is informed that the Respondent No. 3/Hotel Silver Sand has not complied with the order dated 25.10.2021. One of the representatives of Respondent No. 3 provided to the Talathi a copy of Writ Petition No. 406/2021 wherein stay was obtained by Respondent No. 3.
(vi). In the letter dated 20.04.2022, the Deputy Collector requested the Member Secretary to give his consent and make necessary arrangements of fund to the tune of Rs. 13,89,831/-. In the letter dated 25.05.2022, the Member Secretary requested the Deputy Collector to make necessary arrangements to raze to the ground the said structures and Page 15 of 19 recover the cost incurred from the Respondent No. 3 as the arrears of Land Revenue.
17. The stand of Respondent No. 3/Hotel Silver Sands is as follows:-
(i). Vide affidavit which is undated but was received by the Registry on 14.02.2020, it is submitted that the Respondent No. 1 has passed the impugned order without application of mind. In fact the documents which were relied upon by him, depicted that the structures in question existed prior to 1991 and that those documents could have been discarded. These documents have been discarded only on the ground of a procedural lapse which has occurred on the part of the Respondent No. 2/GCZMA. The said lapse was sought to be rectified for which process has already been set in motion.
Moreover at the time of taking the decision, the quorum was not in accordance with the Notification dated 26.10.2016 issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC), Government of India. He has also given the same chronology in respect of the judicial proceedings which has already been narrated by the Applicant, stated by us above. Therefore, he has prayed that the application should be dismissed with compensatory cost.
18. No one has filed reply affidavit except Respondent Nos. 2 & 3 in this matter, hence proceedings will go against them ex-parte. Page 16 of 19
19. Having heard the arguments of all the parties, this Tribunal is of the well-considered opinion that the impugned order dated 05.12.2018 passed by the Respondent No. 2/GCZMA in respect of demolition of the illegal structures in Survey Nos. 24/2, 24/3, 24/11 and 24/12 in Colva Village, Salcete, stood confirmed up to the level of Hon'ble Supreme Court in the initial ground of litigation as the Hon'ble Supreme Court had dismissed the appeal vide order dated 18.01.2019 which was preferred by the Respondent No. 3 against the order of this Tribunal passed on 03.01.2019, upholding the demolition order passed by the GCZMA.
20. After the final order by the Hon'ble Supreme Court, in our opinion, there was no question of any review application to be entertained by any of the forums except the Hon'ble Supreme Court from where the said demolition had been upheld. But record reveals that by taking recourse to legal proceedings on the pretext of the ground of procedural review available to the GCZMA, the said authority entertained the application for review and kept the matter pending for a long till ultimately it dismissed the said review vide order dated 23.10.2021.
21. It is apparent that the Respondent No. 3/Project Proponent whose property was to be demolished, continued to enjoy the benefits of the said property from the date of Judgment of Hon'ble Supreme Court dated 18.01.2019 (date of Judgment) when the demolition of order was confirmed by the Hon'ble Supreme Court till 23.10.2021 and even after that till date, demolition appears to have not been done. The Page 17 of 19 conduct of the Administrative Authorities involved in this, as well as that of the GCZMA, is under cloud of suspicion as their conduct is not above board. It is very much clear that once the matter was settled by the Hon'ble Apex Court on 18.01.2019 when it dismissed the appeal, no further proceedings, in the garb of review, should have been allowed to go ahead and it should have been rejected outright as the sole power of entertaining any review vested with the Hon'ble Supreme Court.
22. In view of above, we allow this application and direct the GCZMA to ensure the compliance of demolition order dated 05.12.2018 in respect of the property in question within a period of 02(two) months positively, failing which the Applicant would be at liberty to approach us with a Misc. Application, indicating non-compliance, where-on the penal order may have to be passed by us.
23. We also deem it proper in this matter to direct the Chief Secretary of State of Goa to look into the conduct of the concerned Officers of the GCZMA and the Administrative Officers who were involved in the carrying out the demolition order dated 05.12.2018 and hold an enquiry as to who is at fault in dealing the execution of the said order and take appropriate penal action both Administrative as well as Judicial and submit a report to us within a period of 03(three) months from now in the Registry.
24. Let a copy of this order be communicated to the Chief Secretary, State of Goa for compliance.
Page 18 of 19
25. Accordingly the Original Application No. 102/2019 (WZ) stands disposed of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM September 07, 2022 Original Application No. 102/2019(WZ) P.kr Page 19 of 19