National Green Tribunal
Mr Pritidas M Sawant vs Goa Coastal Zone Management Authority on 29 March, 2017
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
APPEAL NO.67/2016(WZ)
CORAM:
Hon'ble Mr. Justice U.D. Salvi,
(Judicial Member)
Hon'ble Mr. Ranjan Chatterjee,
(Expert Member)
B E T W E E N:
Mr. Pritidas M. Sawant,
S/o. Freedom Fighter Mahadev
Sawant, Aged 41 yrs. Occ : Businessman,
R/o. H.No.416, Dabholwada, Chapora
Anjuna, Bardez, Goa.
......Appellant
AND
1. Goa Coastal Zone Management Authority,
C/o. Office at 3rd floor, Dempo Tower,
Patto-Tanaji, Goa.
2. Shri Kamlakant Y Redkar,
H.No.436, Dabholwaddo, Chapora,
Anjuna, Bardez-Goa-403 509
3. Shri Agnel Braganza,
H.No.415, Dabholwaddo, Chapora,
Anjuna, Bardez, Goa-403 509.
.....Respondents
1
(J)Appeal No.67/2016(WZ)
Counsel for Appellant
Mr. Shivan Desai, & Mr. Shivshankar Swaminathan,
Advocates.
Counsel for Respondent No.1 :
Mr. Dattaprasad Lawande, Add.A.G.&
Mr. P. Dangui, A.G.P.
Mrs. Fawia M. Mesquitta, Adv.
Counsel for Respondent No.2 & 3 :
Mr. Nikhil Vaze, Adv.
Mr. Anand Kulkarni, Adv.
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Dated : 29th March, 2017
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ORDER
1. Order dated 20-21st July, 2016 passed by Respondent No.1 Goa Coastal Zone Management Authority (GCZMA) rejecting the request made by the Appellant vide letters dated 26th May, 2014 and 4th February, 2016 for shifting of plinth area of the proposed house in contiguous pieces and parcels of land falling within No Development Zone (NDZ) within distance of 100mtrs from the bank of river Chapora at village Anjuna, Bardez, Goa, is assailed in the present Appeal.
2. The house property existed/exists on the piece of land bearing Survey No.362/11 admeasuring 150 sq.mtrs situate at Village Anjuna, Taluka: Bardez, District: North Goa since prior to Coastal Regulation Zone (CRZ) 2 (J)Appeal No.67/2016(WZ) Notifications coming into effect. This land with the house property bearing Survey No.362/11 and undisturbed area surrounding the said house property on three sides, being piece and parcel of land bearing Survey No.362/7A admeasuring 456 sq.mtrs was purchased by the Appellant with two registered Sale Deeds dated 20th May, 2009. Initially, GCZMA granted its approval for reconstruction of the said existing house in Survey No.362/11 without exceeding existing Floor Space Index (FSI), existing plinth area and existing density, subject to the construction conforming to the local building bye laws vide permission dated 14th December, 2012. Subsequently, the Appellant moved an application dated 26th May, 2014 for grant of NOC to reconstruct the said house by shifting its location towards landward side as indicated in the Plan submitted to the Town and Country Planning Department for obtaining its clearance. The said application reveals that the reconstruction of the house at changed location was proposed for maintaining proper setback to the road in compliance of the Town and Country Planning Regulations. GCZMA thereupon issued letter dated 30th July, 2014 informing the Appellant to ensure that reconstruction of authorized structure should not exceed existing FSI, existing plinth area and existing density, etc. and to follow 3 (J)Appeal No.67/2016(WZ) the norms and laws, etc and amended CRZ Notification, 2011.
3. Acting upon a complaint alleging violation of provisions under the CRZ Notification, 2011 in shifting of plinth for reconstruction of the existing house and our Order dated 8th January, 2016 passed in Application No.110/2014 [Shri Kamalkant Redkar and Anr. Vs. State of Goa and 4 Others], the Respondent No.1 GCZMA in its 125th Meeting on 11th February, 2016 reconsidered the case and took a decision to withdraw the communication dated 30th July, 2014 of the Member Secretary, GCZMA and further decided to reject the request made by the Appellant vide his letters dated 26th May, 2014 and 4th February, 2016 and accordingly, issued the letter dated 21st March, 2016. In the Writ Petition No.380 of 2016 preferred by the Appellant before the Hon'ble High Court of Bombay at Goa, the Order dated 21st March, 2016 issued by the GCZMA was set aside and the case was remanded back to GCZMA to comply with the direction of the NGT afresh after hearing the parties in accordance with law within a period of 03 months.
4. The Respondent No.1-GCZMA thereupon heard the rival parties at length and in its 130th Meeting held on 20th June, 2016 decided to reject the request made by the 4 (J)Appeal No.67/2016(WZ) Appellant and issued impugned Order dated 21st July, 2016 wherein the Authority communicated the opinion of its Members in the following terms:
".........wherein the Authority members opined that the existing plinth area of any authorized structure is to be considered where the structure actually exists and the same cannot be shifted from the original position even if the same area is maintained, as such the existing plinth of any structure in CRZ area cannot be designed as location other than where the original/actual structure exists. As such the reconstruction of the house under reference is to be carried out strictly on or within the existing plinth of the actual position of the house and by no way the plinth can be shifted to some other location. The Authority concluded that the rules and regulations of the CRZ Notification cannot be synchronized due to any other prevailing rules and regulations under some other Act."
5. The Respondent Nos.2 and 3 resisted the Appeal with the reply dated 1st December 2016. Virtually the Respondent Nos.2 and 3 did not dispute the factual matrix of the case. According to the Respondent Nos.2 and 3, the Appellant having realised that both the pieces and parcels of the land bearing Survey No.362/7A and 362/11 being situate within 100mts. of HTL (High Tide Line) i.e. within No Development Zone (NDZ) in CRZ-III and he could not have got permission for construction of new house in Garden land (Bagayat) - Survey No.362/7A got both the land Survey Nos.362/7A and 362/11 amalgamated with the consequential merger of sub- 5 (J)Appeal No.67/2016(WZ) division 7A in sub-division 11 of Survey No.362/11 of Village Anjuna. The Respondent Nos.2 and 3 specifically contended that in view of the provision under para 8(III)A(ii) of the Coastal Regulation Zone Notification, 2011, only reconstruction of existing authorised structure, not exceeding Floor Space Index (FSI), existing plinth area, existing density and for permissible activity can be carried out within No Development Zone and as such, reconstruction has to be carried out without shifting of location i.e. at the site where it initially existed.
6. It is not in dispute that the original structure exists at Plot bearing Survey No.362/11 (before amalgamation) and both the said pieces and parcels of the lands - Survey No.362/7A and 362/11 (before amalgamation) fall within No Development Zone in CRZ- III and the construction activity is regulated as per the provisions in para 8(III)A(ii) of the Coastal Regulation Zone Notification, 2011.
7. A short question that arises in the present Appeal is :
"Whether shifting of location of existing structure towards landward side in contiguous plot of land amalgamated with the land where the original structure existed within existing Floor Space Index, plinth area and density is not permitted as per the 6 (J)Appeal No.67/2016(WZ) provisions in para 8(III)A(ii) of the Coastal Regulation Zone Notification 2011 ?
8. Section 20 of the National Green Tribunal Act, 2010 requires the decision of the Tribunal to be taken according to the principles of sustainable development, the precautionary principle and the polluter pays principle. We have, therefore, to take into consideration the peculiar scenario presented with the amalgamation of two contiguous pieces and parcels of lands, both falling in No Development Zone of CRZ-III and Town and Country Planning Regulations requiring portion of the said land to be kept open as setback to the road and as a corollary thereto shifting of the plinth towards landward side of the amalgamated plot of land.
9. Learned Counsel appearing on behalf of the Appellant submitted that the issue of shifting of plinth is no longer Res Integra with ratio of the majority view taken by the Hon'ble High Court of Judicature of Bombay at Goa in Writ Petition No.403/2007 (People's Movement for Civil Action Vrs. Goa Coastal Zone Management Authority and others) and Writ Petition No.659/2001 (People's Movement for Civil Action and anr. Vrs. Hotel Grand Hyatt and others) vide Judgment dated 26th February 2014. He further submitted that the Hon'ble High Court had taken this view while interpreting the provisions of Regulation 6(2)(I) for CRZ-III area in 7 (J)Appeal No.67/2016(WZ) Coastal Regulation Zone Notification, 1991 and the same holds good as regards the identical provision under para 8(III)A(ii) for CRZ-III areas in CRZ Notification, 2011, which is more liberal and contemplates reconstruction unlike CRZ Notification, 1991. He further submitted that the reconstruction does not militate against shifting of the plinth area and language of the para 8(III)A(ii) for CRZ-III areas in CRZ Notification, 2011 only speaks about existing plinth area and not the location.
10. In the instant case, the structure in question to be reconstructed existed on a smaller plot of land bearing Survey No.362/11 before amalgamation and now continues to exist on the amalgamated larger single plot bearing Survey No. 362/11 i.e. at northern most corner of original plot No.362/7A (original plot No.362/7A before amalgamation) abutting the road; and the Town and Country Planning Department has granted sanction to the proposed reconstruction of existing house, partly on some area of the plot bearing Survey No.362/11 before the amalgamation and partly on survey No.362/7A as it existed before amalgamation and now after amalgamation numbered as Survey No.362/11 vide Conditional Approval dated 25th August 2014 granted by Deputy Town and Country Planning Department, Government of Goa at Annexure 'H' to the reply of Respondent Nos.2 and 8 (J)Appeal No.67/2016(WZ) 3 (page-484). This Plan reveals that a large chunk of land is not available for reconstruction, it being required to be left open for road setback. The Plan further reveals that the covered area of the land by the existing structure is 132 sq.mtrs. and the area of land proposed to be covered is 127.32 sq.mtr. Pertinently land to be covered by plinth area of the reconstructed house is lesser than the area of land covered by the existing house. Though the Respondent Nos.2 and 3 state that the Appellant by misrepresentation has managed to obtain the permission for amalgamation and the approval to the reconstruction from the Authorities, namely Inspector of City Survey and Land Records, City Survey, Mapusa, Goa and Town and Planning Department, no steps have been taken by anyone against the alleged wrongs before the competent forum to deal with such grievances. Fact therefore, remains that both the pieces and parcels of lands now are one and the portion of the said plot is to be left open for road setback warranting the shifting of location of the plinth area in the said plot.
11. Aim and object of Coastal Regulation Zone Notification, 2011 is evident from its opening para. The Central Government in exercise of the powers conferred by Sub-section (1) and Clause (v) of Sub-section (ii) of Section 3 of the Environment (Protection) Act, 1986 9 (J)Appeal No.67/2016(WZ) notified Coastal Regulation Zone with a view to ensure livelihood security to the Fishermen Communities and other Local Communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, and restricts the setting up and expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances as specified in the aforesaid CRZ.
12. Guiding star of the CRZ Notification, 2011, as it can be seen from the aforesaid discussion, is not different than the one for environmental justice dispensation system conceived under the National Green Tribunal Act, 2010 except its manifestation in different words. Promotion of development through sustainable manner is an underlying theme of both the CRZ Notification, 2011 and the National Green Tribunal Act, 2010. The CRZ Notification, 2011 is more explicit in voicing the manner in which the promotion of development through sustainable manner is to be achieved. The CRZ Notification, 2011 requires such promotion of development through sustainable manner to 10 (J)Appeal No.67/2016(WZ) be based on the scientific principles taking into account the dangers of natural hazards in coastal areas and sea level rise due to global warming. Interpretation of the relevant provisions of the CRZ Notification, 2011, therefore, needs to be done keeping in mind its aims and objects as are evident from the aforesaid discussion.
13. Para 8(III)A(ii) of the CRZ Notification, 2011 reads as under:
(ii) No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities; Construction/reconstruction of dwelling units of traditional coastal communities 1[especially] fisherfolk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal 11 communities 1[especially] fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;
14. Note in Para 8(i) in CRZ Notification, 2011 explains the word "existing" used in the aforesaid provision in following term:
Note:- The word existing used hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 1[when the CRZ Notification, 1991], was notified.
15. The Respondent No.1-GCZMA while applying the said provision to the facts and circumstances in the 11 (J)Appeal No.67/2016(WZ) present case ought to have considered whether the permission sought by the Appellant for the proposed development or reconstruction of existing authorised structure exceeded existing FSI, existing plinth area and existing density keeping in mind that nowhere this provision made any utterance about the location save only "within NDZ area in CRZ-III". Pertinently, restrictive term used in the said provision is "not exceeding" but not the term "not beyond". Use of term "not exceeding"
restricts quantity of existing FSI, existing plinth area and existing density but not as it would have restricted spatial limit with the use of term "not beyond" - the location in reference to the said phrase. The Respondent No.1 - GCZMA was also expected to consider whether shifting of the location is within NDZ area and such shifting would in any way be invitation to dangers of natural hazards in coastal area or promote sea level rise due to global warming, and further ought to have analysed the entire issue on scientific principles governing the same.
16. As noticed earlier, there has been amalgamation of two contiguous plots into one plot of total area of 606 sq.mtrs and the total area of two plots remained the same vide Area Adjustment Statement enclosed with letter dated 9th January, 2014 of the 12 (J)Appeal No.67/2016(WZ) Inspector of Surveys and Land Record City Survey, Mapusa, Goa, at Annexure 'D' (page 446) to the Affidavit in Reply of the Respondent Nos.2 and 3. The record reveals that construction has shifted in the amalgamated plot in the NDZ area towards landward site. Nothing has been brought to our notice or is apparent from the impugned order to suggest any adverse environmental impact, particularly in terms of the dangers posed to the coastal environment and its marine area. We, therefore, do not see violation or breach of the provisions under para 8(III)A(ii) of the CRZ Notification, 2011 due to shifting of location of the existing construction within the same NDZ area comprising of amalgamated contiguous plots of land, if the proposed reconstruction, as conceived, does not exceed existing FSI, existing plinth area and existing density as it existed on 19th February 1991.
17. In the facts and circumstances of the present case, the impugned order of the GCZMA, requires to be set aside and the Appeal allowed in following terms:
1. The impugned order dated 20-21st July, 2015 passed by the Respondent No.1-GCZMA is set aside.
2. The Appellant is permitted to carry out reconstruction of his existing structure on amalgamated Plot bearing Survey No.362/11 Village Anjuna, Taluka: Bardez, District: North 13 (J)Appeal No.67/2016(WZ) Goa without exceeding existing FSI, plinth area and density as on 19th February 1991 for permissible activities under CRZ Notification, 2011 and in conformity with Town and Planning Regulations in force.
3. The Appellant shall in no manner whatsoever violate or commit breach of the provisions of CRZ Notification, 2011.
4. Appeal No.67/2016 is allowed. No order as to costs.
Appeal No.67/2016 stands disposed of accordingly.
......................................., JM (Justice U.D. Salvi) .........................................., EM (Ranjan Chatterjee) Date : 29th March, 2017 mk 14 (J)Appeal No.67/2016(WZ)