National Green Tribunal
Martinho Xavier Fernandes vs State Of Goa on 22 July, 2020
Item No. 5 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 33/2019 (WZ)
(I.A. No. 91/2019)
Martinho Xavier Fernandes Appellant(s)
Versus
State of Goa & Ors. Respondent(s)
Date of hearing: 22.07.2020
Date of uploading of order: 28.07.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Appellant(s) : Mr. Ninad Laud, Mr. Saurabh Kulkarni, Mr. Ivo
D'Costa & Mr. Prashant Bhat, Advocates
For Respondent(s) : Ms. Fawia M. Mesquita, Advocate for R-1 & 2
Ms. Shweta B. Borkar, Advocate for R-5
ORDER
1. Heard the arguments of the parties and perused the records. The Goa Coastal Zone Management Authority vide its meeting held on 04.10.2018 considered the application of the appellant with regard to construction, which is alleged to be illegal construction in contravention of the Goa Coastal Zone Management Authority resolved to demolish the structures and thus, the appellant aggrieved by the order passed by the GCZMA, directing for the demolition of two structures, situated in the property surveyed under No. 162/2A, which are set to be in violation of Coastal Regulation Zone (CRZ) Regulation 2011 filed the appeal on the grounds that the impugned order has been passed on a misconstruction of C1. 4.3 of the Coastal Regulation Zone 1 Notification, 2011 which permitted regularization of "otherwise permissible structure by the MoEF&CC if forwarded by the local coastal zone management authority". The said pars 4.3 of the CRZ regulation, 2011 contemplated that an application to be made between 31.03.2018 and 30.06.2018. Accordingly, the Appellant herein duly applied for regularization on 29.06.2018.
2. The GCZMA while hearing the Appellant on the SCN dated 12.09.2016 also heard the Appellant. On the said regularization application and after considering the submissions made by the Appellants rejected the same on the premise that:
a) The power to regularise a structure in the CRZ is to be exercise sparingly.
b) The power to regularise is applicable only to permissible structures in the CRZ, and since the Appellant's structures were G+2, there were not permissible within the CRZ.
c) The Appellants had failed to establish that the structures were in existence prior to 1991.
3. It is submitted that the aforesaid grounds could not have been a basis for rejections of the Appellants application dates 29.06.2018. It is submitted that the power to regularise or to reject an application for regularisation is not vested in the GCZMA. C1 4.3 of the CRZ Regulation expressly provide that the power to decide on such application is expressly vested in the MoEF&CC. Furthermore, the role of the Coastal Zone Management Authorities, in this case the GCZMA, is restricted to that of a recommendatory body which is to give specific recommendations regarding regularisation of such proposals and shall certify that there have been no violations of the CRZ regulations, while making such 2 recommendations. The GCZMA could not have travelled beyond its statutory role and moved ahead to reject the Appellants application based on its own recommendation. In doing so, the GCZMA encroached upon the role and power which had been expressly conferred on the MoEF&CC and consequently the said order of rejection is bad in law and deserves to be quashed and set-aside. The Hon'ble Supreme Court in Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422 has held, at para 31, that it is a "basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all."
4. Assuming without admitting the GCZMA had the power to reject the said application, it is submitted that the use of the words "otherwise permissible" employed in the said para 4.3 of CRZ regulation, 2011 would indicate that the sole criteria for regularization is whether the structure in question falls outside the No Development Zone ("NDZ") and is a permissible activity. In the instant case, it is an admitted position that the structures are standing the CRZ III zone where residential and commercial are permissible, as the same is a regulated activity in terms of clause 4 of the CRZ Notification 2011 which reads as follows:
"4. Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,-....
(d) Construction..... of projects less than 20,000 sq. mts built-up area shall be approved by the concerned State or Union territory Planning authorities in accordance with this notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concern CZMA shall be essential for considering the grant of environmental clearance under EIA notification, 2006 or grant of approval by the relevant planning authority."3
5. It is further submitted that the GCZMA has on a misconstruction of the CRZ regulation, 2011 and in particular para 4.3 directed the demolition of the structures on the sole premise that the structures are ground plus two structures i.e. having a ground, first and second floor. Firstly, there is no height restriction in the CRZ regulation, 2011. Secondly, assuming that the impugned order alludes to the height restriction contained in THE GOA (REGULATION OF LAND DEVELOPMENT AND BUILDING CONSTRUCTION) ACT, 2008 i.e. to the extent 9 metres, the GCZMA could surely have allowed the regularization to the extent of the said height. If the height of the structures was the sole reason as to why the structures were in violation of the CRZ Regulations, the GCZMA could have directed for a demolition of the portion which was beyond the said height restriction, the demolition of which would bring the Appellants structures in compliance with the relevant norms, instead of directed a blanket order of demolition of the entire structure. In view of the aforesaid, the impugned order demonstrates a complete non-application of mind by the GCZMA and a mechanical approach by which the Appellants structures which qualifies for regularization to the extent of 9metres has been directed to be demolished. The GCZMA did not have the necessary quorum in terms of the notification dated 26.10.2016. The constitution of the GCZMA which heard the Appellant at its 185th Minutes was not in accordance with S.0 3324(E), which ought to have included as its members (1) the Director, Directorate of Panchayats, (2) the Director, Directorate of Environment, (3) Dr. Nandkumar Sawant, Principal, Parvatibai Chowgule College of Arts & Science, Margao, Goa, (4) Prof. Suhas Godse, Dhempe College of 4 Arts & Science, Miramar, Goa, and (5) Mr. Shirang V. Jarnbhale, Secretary, Gram Vikas Kendra (NGO), Savoi Verem, Goa. Even out of the 8 members present, curiously 4 of the said 8 were "representatives" of the ex-officio member which is not tenable in law in the absence of a power of sub-delegation in the parent notification. Thus only 4 out of the 13 ex-officio members were present at the meeting dated 04.10.2018 which led to the impugned order being passed. In the absence of a valid quorum, the said meeting cannot, therefore, be considered as a valid meeting, since the standing order specified the manner in which the authority is to be constituted and since the Authority is merely a delegate of the MoEF&CC, it is bound by the said order and any action in contravention to the said order is liable to be quashed and struck down. The GCZMA is merely a delegate of the MoEF&CC and cannot travel beyond the S.O in scope or form. Since the GCZMA which heard the Appellant at its 185th meeting on 04.12.2018 was not properly constituted, it is a defect which goes to the roots of the Authorities jurisdiction and consequently, the impugned order of demolition deserves to be quashed and set-aside. This Hon'ble Tribunal has, in its order dated 04.04.2013 in M/s Sardessai Engineering Works v: Goa Coastal Zone Management Authority Application No. 62/2012 (THC) and its order dated 25.04.2013 in Gurudas Amerkar and Anr. v. Goa Coastal Zone Management Authority Appeal No. 75/2012 held that in the absence of a valid quorum consisting of atleast 8 members, the orders passed by the GCZMA would be illegal and bad in law.
6. It is alleged that the demolition order was passed on 09.07.2018 and the same was challenged before the High Court and it was 5 remanded back to the GCZMA vide order dated 11.09.2018. The order dated 23.10.2018 was again challenged before the High Court in petition No. 1086/2018 and the same was disposed of by the Court vide order dated 29.03.2019 directing the appellant to approach this Tribunal, thus this application.
7. To depict the clear picture with regard to the present litigation, we would like to reproduce the minutes of 185th Meeting of the Goa Coastal Zone Management Authority dated 04.10.2018 which is as follows:
Case No. 1.5 To comply with order dated 11/09/2018 in Writ petition bearing 788/2018 before Hon'ble High Court of Bombay at Goa by Mr. Martino Xavier Fernandes inter alia challenging demolition order bearing no. GCZMA/N/ILLE-COMPL/16- 17/58/601 dated 09/07/2018 was issued by GCZMA for alleged illegal construction of three floor building carried out by Mr. Martino Xavier Fernandes in the property Sy.No.162/2 A, Khalchawada, Arambol, Pernem, Goa.
Background: The Office of the Goa Coastal Zone Management Authority (hereinafter referred as 'the GCZMA', in short) earlier was in receipt of a complaint letter dated 24/06/2016 received from Mr. Suresh N. Pal regarding alleged illegal construction of three floor building carried out by Mr. Martino Xavier Fernandes in the property Sy.No.162/2 A, Khalchawada, Arambol, Pernem in violation of CRZ Notification without obtaining permissions from any concerned authorities.
The said matter was placed for 177th GCZMA meeting for grant of personal hearing to the parties wherein the authority went through the documents submitted by the respondent, the inspection report from the village panchayat dated 02/09/2015 and the demolition order from VP Arambol dated 08/03/2015 which has clearly establish that there are new constructions of two structures in Survey No.162/2A. Both the structures are G+2 in nature. Further, the demolition orders mentions that there is no valid construction license for the above activity from Village Panchayat. Orders from Additional Director of Panchayat dated 17/07/2017 states that the applicant is a mundkar and the structures are existing prior to 2013. The respondent has claimed that House No. 149 in the said Survey No. is existing since 1987 and House bearing No. 658 is existing since 2011. However, 6 VP inspection report has mentioned two new structures and the respondent has not sought any prior permission from GCZMA or the VP for such construction. In view of the above, taking into account the legal position that a G+2 structure in CRZ area is not permissible and that no document is in records to establish existence of G+2 structure prior to 1991 in the said Survey No.162/2A, the Authority resolved to pass demolition order against both the structures.
Subsequently a demolition order bearing no. GCZMA/ILLEE- COMPL/16-17/58/601 dated 09/07/2018 was issued by GCZMA. The said demolition order was challenged before the Hon'ble High Court of Bombay at Goa vide Writ petition bearing 788/2018 inter alia being violative of principles of natural justice. Hon'ble High Court of Bombay at Goa vide order dated 11/09/2018 was inter alia pleased to quash and set aside the demolition order and remanded the matter for fresh hearing to the parties.
Accordingly the said matter is placed for the grant of personal hearing. Proceeding for the said hearing may be read as below:
Proceeding: The Complainant remained present alongwith Adv. Nikhil Pal. The respondent remained present through Adv. Preetam Talaulikar. The Complainant reiterates his stand in the complaint filed before the authority. The advocate for complainant submitted that the village panchayat has also conduted inspection and ordered demolition of structures. The advocate for complainant submitted that as per CZMP 1996 the area is classified as CRZ III area. The advocate for complainant submitted that mundkarial applications filed by respondents have been dismissed twice and placed on record certified copy of proceeding sheet before the Joint Mamlatdar of Pernem in Case no. JM-II/MND/05/2017. The advocate for complainant submitted that stand of respondent is contrary as sometimes he claims to be mundkar of the property and sometimes he claims to have bought the property. The advocate for respondent submitted that the structures belonging to the respondent are prior to 1991. Further submitted that the order of demolition issued by village panchayat of Armabol by Additional Director of panchayat in a appeal and also directed the concerned village panchayat to consider regularisation of structures which is already placed on record before the authority. The advocate for respondent submitted that admittedly respondent had not obtained licence/permission from village panchayat. The advocate for respondent submitted that respondent has applied for regularisation for structure on 29/06/2018 and the regularisation application is still pending before the authority. Further the advocate for respondent submitted that structures have only been repaired and plinth has remained the same. The advocate for respondent submitted that he is 7 also entitled for benefit emanating from MOEF Notification/Circular.
The advocate for respondent submitted that relied upon three judgements of the Supreme Court of India a) Joseph v/s Kerala Coastal Zone Management Authority (W.P. (C) no.18215/2015 b) Syed Muzaffa Ali & ors. v/s Municipal Corporation of Delhi 1995 Supp (4) Supreme Court Cases
426. c) Sivaji v/s Pallippuram Grama Panahayat 2017 SCC Online Ker 4449. The advocate for respondent submitted that there is bar on his clients to claim tenancy. The advocate for respondent submitted that the order of demolition cannot be issued in all cases and the authority should consider regularisation of structure. The advocate for respondent submitted that the subject matter property is within Settlement Zone. The advocate for complainant in rejoinder denied the claim of respondent for benefit of MOEF Notification and applicability of judgments cited by respondent.
Decision: The authority heard both the parties at length and took note of oral submissions and various documents on record. The authority perused the sale deed dated 16/05/2002 pertaining to Syno.162/2 (part) a plot "A" purchased by respondent. The authority noted that even in the sale deed plan annexed to said deed there is no structure shown. It is an admitted position on behalf of the respondents that they have not taken any prior approval from the GCZMA before the construction of structure in question.
The authority also noted it is admitted fact that the structures of the respondent are residential cum commercial structures. The authority observed that although the CRZ Notification 2011 provides certain relaxation for traditional coastal communities including fisherfolk, tribals however the same cannot be claimed as matter of right. The power to regularise a structure in CRZ area is required to be exercised in sparingly wherein the structure of such applicant meets requirements of CRZ Notification. Further provision to regularise a structure in CRZ area as per MOEF Notification dated 06/03/2018 is applicable to otherwise permissible structure in CRZ area. The structures of respondents are G+2 in nature in CRZ. These cannot be deemed to be otherwise permissible construction and therefore the regularization application dated 29/06/2018 under aforesaid notification is rejected.
The authority observed that the respondent has failed to establish/justify existence of plinth of both the structures-in Survey No.162/2A, village Arambol, as prior to 1991 and present status of construction of G+2 structures in the said property with the help of document/records hence the Authority resolved to pass demolition order against both the structures."
8
8. Consequent upon the resolution of the GCZMA a notice was served containing following facts:
"A Show cause cum Stop work order dated 12/09/2016 issued by GCZMA was duly replied by Mr. Martinho Xavier Fernandes vide reply dated 29/09/2016.
Further a letter dated 11/11/2016 was also issued to Secretary Village Panchayat of Arambol by GCZMA to initiate action and submission of an action taken report.
A Writ petition bearing no. 930/2017 was also filed by Mr. Suresh N. Pai before the Hon'ble High Court of Bombay at Goa inter alia being aggrieved by said violation and alleged inaction on part of authorities. The matter came up for hearing on 21/11/2017 wherein the Hon'ble High Court of Bombay at Goa wherein the GCZMA was inter alia directed to take show cause notice to its logical end within period of six weeks after following procedure.
The parties were called for personal hearing before the authority in its 177th GCZMA meeting held on 26/06/2018. The parties were duly served in the matter vide a notice of personal hearing dated 20/06/2018.
In this regard personal hearing was held in the 177 th GCZMA meeting held on 26/06/2018. In the said meeting the GCZMA decided as follows:- "The authority went through the documents submitted by the respondent, the inspection report from the village panchayat dated 02/09/2015 and the demolition order from VP Arambol dated 08/03/2015 which has clearly establish that there are new constructions of two structures in Survey No. 162/2A. Both the structures are G-2 in nature. Further, the demolition orders mentions that there is no valid construction license for the above activity from Village Panchayat. Orders from Additional Director of Panchayat dated 17/07/2017 states that the applicant is a mundkar and the structures are existing prior to 2013. The respondent has claimed that House No. 149 in the said Survey No. is existing since 1987 and House bearing No. 658 is existing since 2011. However, VP inspection report has mentioned two new structures and the respondent has not sought any prior permission from GCZMA or the VP for such construction. In view of the above, taking into account the legal position that a G+2 structure in CRZ area is not permissible and that no document is in records to establish existence of G+2 structure prior to 1991 in the said Survey No. 162/2A, the Authority resolved to pass demolition order against both the structures.
In terms of decision taken by authority in its the 177th GCZMA meeting held on 26/06/2018 a demolition order bearing no. GCZMA /N / ILLE -COMPL / 16 - 17/ 58 /601 dated 09/07/2018 was issued by GCZMA.9
The said demolition order was challenged before the Hon'ble High Court of Bombay at Goa vide Writ Petition bearing no. 788/2018 inter alia being violative of principles of natural justice.
The said writ petition came up for hearing and the Hon'ble High Court of Bombay at Goa vide order dated 11/09/2018 was inter alia pleased to quash and set aside the demolition order and remanded the matter for fresh hearing. Accordingly a notice of personal hearing was issued to all the concerned parties on 25/09/2018. However the meeting could not take place on said day and fresh date for personal hearing was given to all the concerned parties on 04/10/2018.
In this regard, the matter was placed for final hearing and disposal the 185th GCZMA Meeting held on 04/1012018. The proceedings of the 185th GCZMA meeting held on 04/10/2018 of the present matter can be seen as follows:
The Complainant remained present alongwith Adv. Nikhil Pai. The respondent remained present through Adv. Preetam Talautilkar. The Complainant reiterates his stand in the complaint filed before the authority. The advocate for complainant submitted that the village panchayat has also conducted inspection and ordered demolition of structures. The advocates for complainant submitted that as per CZMP 1996 the area is classified as CRZ III area. The advocate for complainant submitted that mundkarial applications filed by respondents have been dismissed twice and placed on record certified copy of proceeding sheet before the Joint Mamlatdar of Pernem in Case no-JM-II/MND/05/2017. The advocate for complainant Submitted that stand of respondent is contrary as sometimes he claims to be mundkar of the property and sometimes he claims to have bought the property. The advocate for respondent submitted that the structures belonging to the respondent are prior to 1991. Further submitted that the order of demolition issued by village panchayat of Armabol by additional Director of panchayat in a appeal and also directed the concerned village panchayat to consider regularization of structures which is already placed on record before the authority. The advocate for respondent submitted that admittedly respondent had not obtained licence/permission from village panchayat. The advocate for respondent submitted that respondent has applied for regularization for structure on 29/06/2018 and the regularization application is still pending before the authority. Further the advocate for respondent submitted that structures have only been repaired and plinth has remained the same. The advocate for respondent submitted that he is also entitled for benefit emanating from MoEF Notification/Circular.
The advocate for respondent submitted that relied upon three judgements of the Supreme Court of India a) Joseph v/s Kerala Coastal Zone Management Authority (WP (C) No. 18215/2015 b) Syed Muzaffa Ali & ors v/s Municipal Corporation of Delhi 1995 Supp (4) Supreme Court Cases 426 10
c) Sivaji v/s Pallippuram Gram Panchayat 2017 SCC Online Ker 4449. The advocate for respondent submitted that there is bar on his clients to claim-tenancy. The advocate for respondent submitted that the order of demolition-cannot be issued in all cases and the authority should consider regularization of structure. The advocate for respondent submitted that the subject matter property is within Settlement Zone. The advocate for complainant in rejoinder denied the claim of respondent for benefit of MoEF Notification and applicability of judgments cited by respondent".
In the 185th GCZMA meeting held on 04/10/2018 decided that, "The authority heard both the parties at length and took note of oral submissions and various documents on record. The author, perused, the sale deed dated 16/05/2002 pertaining to Syno. 162/2 (part) a plot "A" purchased by respondent. The authority noted that even in the sale deed plan annexed to said deed there is no structure shown. It is an admitted position on behalf of the respondents that they have not taken any prior approval from the GCZMA before the construction of structure in question.
The authority also noted it is admitted fact that the structures of the respondent are residential cum commercial structures. The authority observed that although the CRZ Notification 2011 provides certain relaxation for traditional coastal communities including fisherfolk, tribals however the same cannot be claimed as matter of right. The power to regularize a structure in CRZ area is required to be exercised in sparingly wherein the structure of such applicant meets requirements of CRZ Notification. Further provision to regularize a structure in CRZ area as per MoEF Notification dated 06/03/2018 is applicable to otherwise permissible structure in CRZ area. The structures of respondents are G-2 in nature in CRZ. These cannot be deemed to be otherwise permissible construction and therefore the regularization application dated 29/06/2018 under aforesaid notification is rejected.
The authority observed that the respondent has failed to establish/justify, existence of plinth of both the structures in Survey No. 162/2A, village Arambol, as prior to 1991 and present status of construction of G+2 structures in the said property with the help. of documents/records hence the, Authority resolved to pass demolition order against both the structures."
A copy of the Extract of minutes of 185th GCZMA meeting held on 04/10/2018 is annexed hereto.
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. 3324 (E) dated 26/1012016 issued 11 by the Ministry of Environment & Forests, Government of India, hereby directs Mr. Martinho Xavier Fernandes to demolish two G+2 structures in Survey no.162/2A, village Ararmbol, Pernem- Goa as decided in the 185th GCZMA meeting held on 04/10/2018 and further to restore the land to it original condition, within 30 days from the date of receipt of this order, The Dy. Collector & S.D.O., Pernem, Pernem, 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 Mr. Martinh Xavier Fernandes as the arrears of land revenue. Further, Mr. Martinh Xavier Fernandes is required to submit a compliance report in respect of above director to the GCZMA within next 3 days of expiry of the aforementioned time period of 30 days."
9. As per version narrated in the application, a complaint was filed before the respondent no. 6 and the Village Panchayat concerned directed the appellant to demolish the structure against which the appellant filed an appeal under Section 6 (7) Goa Panchayat Raj Act before the Additional Director of Panchayat and interim order was passed on 08.03.2016. The matter was again raised before the GCZMA with the allegation that the appellant has carried out the construction in property bearing under survey no. 162/2A without obtaining requisite permission from the Competent Authority and notice was issued with direction to submit the reply.
10. After reconstitution of GCZMA the matter was again referred to Panchayat for initiating the action and appeal filed before the Additional Director was remanded back to Panchayat Raj. Against the order passed by the authorities, Writ Petition No. 930/2017 was filed before the High Court of Bombay at Goa in view of the non-action of GCZMA and this was disposed of with the direction that the authority could take necessary action in respect of the matter. In the meantime, CRZ Notification, 2011 was amended vide 12 order dated 06.03.2018 so as to include clause 4.3 which provides for post facto permissible activities which is as under:
"4.3 Post facto clearance for permissible:-
(i) All activities, which are otherwise permissible under the provisions of this notification, but have commenced construction without prior clearance, would be considered for regularisation only in such cases wherein the project applied for regularization in the specified time and the projects which are in violation of CRZ norms would not be regularised.
(ii) The concerned Coastal Zone Management Authority shall give specific recommendations regarding regularisation of such proposals and shall certify that there have been no violations of the CRZ regulations, while making such recommendations.
(iii) Such cases where the construction have been commenced before the date of this notification without the requisite CRZ clearance, shall be considered only by Ministry of Environment, Forest and Climate Change, provided that the request for such regularisation is received in the said Ministry by 30th June, 2019."
11. It is alleged by the appellant that the application moved by the appellant for regularization in terms of the amended notification has not been considered by the Competent Authority and the Board which passed the resolution to demolish the structure of the appellant was not duly constituted and thus order passed in the resolution of the GCZMA is against the provisions of law.
12. The Respondent-Goa Coastal Zone Management Authority has submitted a reply and stated and argued that the matter was heard and decided by Hon'ble High Court by filing Writ Petitions for more than two times and the relief as prayed was not granted and the matter was remanded only on the ground that the opportunity of hearing should be given to the appellant. It has also been argued that the matter on the grounds raised by the appellant was duly considered by the Committee which is depicted in the order itself 13 and it was found that the structure was illegal and against the Provisions of Rules and Notifications.
13. By filing the rejoinder the appellant had submitted that the authority could not have passed the impugned order of demolition as it was improperly constituted. In reply thereof by filing the affidavit it is argued on behalf of the respondent that the defence of being fisherman was never taken before the Authority, nor has any document to this effect been produced. It is also denied that there was an existing structure in the said property when the same was purchased in 2002 from the Bhatkar. The Sale Deed makes no mention of any such structure. It is however true that the structure are being blatantly used for commercial purpose. The appellant has also raised the issue of application for repair/reconstruction which was replied and argued that the GCZMA received an application for repair/reconstruction of structure in Survey No. 162/38 from one Rosarinho Fernandes. Merely because the land zone is settlement that by itself will not give any scope to the appellant to carry out any construction in areas covered under CRZ regulations.
14. The application for regularization was received in the office on 29/06/2018. It is also submitted that the S.O. 06.03.2018 would be applicable only to "otherwise permissible" constructions under the Notification. The recommendations under the S.O. to the Ministry can be given effect, if 'otherwise permissible' activities after the same are scrutinized by the Authority and found worthy of such recommendations. The CZMA has the primary duty to scrutinize the applications placed before it and same have to be decided by 14 proper application of mind, and to examine as if it is not in violation of CRZ Notification.
15. The GCZMA had the required quorum as envisaged in its constitution. The GCZMA consists of Expert Members or nominated member and ex-officio members who are head of concerned Government Department. The concerned Head of Department, who is ex-officio member of authority, can duly authorize his representative to remain present for GCZMA meeting and in that event also the Committee of GCZMA is properly constituted and can validly take decisions in the matters placed before it. It is stated that the presence of the representatives of the ex-officio members of Authority who are duly authorized by Head of Department doesn't vitiate the proceedings before the Authority as they participate in the deliberations and they have sound knowledge of the provisions contained in CRZ Notification who can also take decisions on behalf of the Department. However, the expert members are nominated members by their name and hence cannot be represented by any other person.
16. With reference to Clause 4.3 the learned counsel for the respondent had argued that the grounds pertain to an incorrect interpretation of Clause 4.3 of the S.O. dated 06.03.2018. The wording of the said notification dated 06/03/2018 is clear that concerned CZMA should give specific recommendations for regularization of proposal and also certify that there is no violation CRZ regulation while making such recommendations. The CZMA had primary duty for scrutiny of the applications before it and same required application of mind. The CZMA cannot recommend a structure which is in 15 violation of the Notification. It is wrong to suggest that there is no height restriction in CRZ Notification. The CRZ Notification 2011 envisages 9 meters height and 33% FAR for structures. It is denied that there is no sub-delegation of parent notification. It is also submitted that if the interpretation of the Appellant that every application for regularization should be sent to the MoEF&CC is taken to be correct, it would burden the MoEF&CC with irresponsible claims and defeat the very purpose of the S.O. which is intended to protect permissible activities. In addition, it would be a futile exercise for the MoEF&CC in case of unfavourable recommendations.
17. The perusal of the record reveals that the matter was raised before the Hon'ble High Court for more than two times and it was directed that the notice issued against the appellant must reach to the logical end, and on the basis of want of natural justice, the matter was remanded twice. The matter was again considered by the GCZMA and it was found on the basis of the report submitted by the official concerned after local inspection and visit of the site that it was in violation of CRZ Rules and the appropriate permission was not taken by the Competent Authority for construction of the structure. It is submitted that after scrutiny it was found that the appellant does not belong to the fisherman community and the benefit which should be extended to those is not entitled for it and the matter was heard and decided. The matter with regard to the amended notification 4.3, it has been raised before the Competent Authority and duly considered and it was found that the consideration of amended rules 4.3 can be available only in cases where there is no violation of CRZ Notifications if there is any 16 violation of condition of the CRZ Rules then this amended notification will not be applicable. The learned counsel for the appellant has submitted that the matter should be referred to the MoEF&CC for consideration, in reply thereof it has been narrated that it can be referred only when there is a compliance of the notification and it comes within the purview of the provisions of law and since the matter pertaining to the appellant was not within parameter as laid down in the Rules, thus, the mater cannot be referred. It has also been argued that the matter has been twice initiated before the High Court and twice before the Board and he was given an opportunity of hearing and the structure which is basically illegal can never be permitted to be continued. The illegality which has being done by the appellant cannot be permitted to be continued for the time immemorial on the basis of pendency of this luxurious litigation.
18. The appellant has filed the application before the Competent Authority at district level which was decided after giving him an opportunity of hearing and again he filed the writ petition before the Hon'ble High Court, two times and his application was considered by the Goa Coastal Zone Management Authority for two times and then approached in this Tribunal.
19. It is called forum hunting and it is intended to continue till the appellant does not achieves a desired goal. The platform of the Tribunal or the Courts cannot be made a platform to compel the opposite party to pass a desired order. The matter cannot be agitated and to be continued till infinity and it should come at rest. The Hon'ble Supreme Court in Dr. Buddhi Kota Subbarao Vs. K 17 Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In Tamil Nadu Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.
In Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.
In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, the Hon'ble Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law."
"It is well established rule of interpretation of a statute by reference to the exposition it has received from contemporary authority. However, the Apex Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous. Similarly, in Collector of Central Excise, Bombay-I & Anr. Vs. M/s. Parle Export (P) Ltd., AIR 1980 SC 644, the Hon'ble Supreme Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd., Cuttack Vs. The Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028, the Hon'ble Supreme Court has applied the same rule of interpretation by holding that "contemporanea expositio by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument." Same view has been taken by the Hon'ble 18 Supreme Court in State of Madhya Pradesh Vs. G.S. Daal and Flour Mills (Supra); and Y.P. Chawla & Ors. Vs. M.P. Tiwari and Anr., AIR 1992 SC 1360. In N. Suresh Nathan & Ors. Vs. Union of India & Ors, 1992 (Suppl) 1 SCC 584; and M.B. Joshi & Ors. Vs. Satish Kumar Pandey & Ors., 1993 (Suppl.) 2 SCC 419, the Apex Court observed that construction in consonance with long-standing practice prevailing in the concerned department is to be preferred.
20. In M/s. J.K. Cotton Spinning & Weaving Mills Ltd. & Anr. Vs. Union of India & Ors., AIR 1988 SC 191, it has been held that the maxim is applicable in construing ancient statute but not to interpret Acts which are comparatively modern and an interpretation should be given to the words used in context of the new facts and situation, if the words are capable of comprehending them. Similar view had been taken by the Apex Court in Senior Electric Inspector & Ors. Vs. Laxminarayan Chopra & Anr., AIR 1962 SC 159.
21. In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporenea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction 19 for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune & Anr. Vs. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 2856). In D. Stephen Joseph Vs. Union of India & Ors., (1997) 4 SCC 753, the Hon'ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules.
22. However, in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., AIR 2003 SC 3502, the Apex Court held that "the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of law dealing with the matter".
Therefore, "contemporanea exposito" by the State instrumentality is very useful and relevant for providing guidance to interpretation of expression used in the Rules. The administrative construction placed by the executive officers, responsible for execution of rules should be accepted and does not warrant over-turning unless found not in conformity of the Rules."
"When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.
23. In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:
"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."-20
Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers. (Emphasis added)"
In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.
24. In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the 21 judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."
In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case."
25. The crux of the point of the arguments raised by the learned counsel for the appellant is clause 4.3 of S.O. dated 06.03.2018 and with the interpretation of the word of the notification appellant argued that the structure should be regularised while it is argued on behalf of the authority that the CZMA cannot recommended structure which is in violation of the notification. The CRZ Notification 2011 envisages 9 meters height and 33% FAR for forest structure. If the interpretation of the appellant that every application for regularization should be sent to MoEF&CC is taken to be correct, it would burden of the MoEF&CC with irresponsible claims and defeat the very purpose of the S.O. which is intended to protect permissible activities. Further, the recommendation can be made only with the condition, if it is not in violation of CRZ Rules. 22
26. After arguing on merit the learned counsel for the appellant had submitted that one part of the structure may be referred to the GCZMA again for consideration for which the learned counsel for the respondent had consented to some extent but since, we have heard the application on merit and disclosed of our opinion and found that the structure is illegal and without any permission by the Competent Authority, thus, we are of the view that the matter should be finally decided. The platform of the Court and Tribunal can never be made to litigate for a desired order or desired decision. The authorities cannot be compelled by the order of the Court or Tribunal to change their policy and change their orders. Once the authority had taken the decision not only once but twice and the matter was agitated before the competent court and it was found that there was illegality in this construction thus, the illegality cannot be continued further. Since, we had heard on merit and found that the order under appeal passed by the GCZMA is within its jurisdiction and based on the evidence and it was passed after giving sufficient opportunity of hearing to the appellant, thus, we found no illegality or irregularity in the order passed by the GCZMA and thus, appeal is devoid on merit and liable to be dismissed with cost.
27. Appeal is dismissed with cost.
28. Since, the proceedings of show cause notice and hearing has been completed by the respondent-GCZMA thus, the GCZMA is directed to execute and comply the order passed in the resolution within 10 days from the date of the uploading of the order. 23
29. Accordingly, Appeal No. 33/2019 (WZ) and I.A. No. 91/2019 are finally decided accordingly.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM July 28, 2020 Appeal No. 33/2019 (WZ) MN 24