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Judgment
The Applicant is seeking demolition of a structure / construction erected by Respondent No.3 Mr. Henrique D'Souza constructed in place of original structure bearing house No.B-74 located in Survey No.62/5 of village Panchayat Reis Magos, Betim, Bardez, Goa.
According to Applicant- Mr. Cedric Bosco Savio Lobo, the construction was raised within 100m (i.e. 65m away) from High Tide Line (HTL) of river Mandovi i.e. No Development Zone (NDZ) with blessings of the Member Secretary, the Goa Coastal Zone Management Authority (GCZMA), Village Panchayat and other concerned bodies/Authorities. The Applicant described the original structure as a structure admeasuring 11.20x5.30m with staggering design for the super structure and having Manglore Tiled sloping roof as per the plan submitted by Respondent No.3-Mr. D'Souza to GCZMA with a letter dated 23rd May, 2012 requesting for No Objection Certificate (NOC) to repair the existing structure vide Annexure-A/4 to the Application. The Applicant added that on 6th August, 2012 an official of GCZMA conducted site inspection of House No.B-74 and observed that the distance of seaward boundary from river/HTL was within 100m from HTL of River Mandovi; and recommended grant of permission to carry out the repairs/renovation to the said structure, subject to the same plinth. The Applicant submits that Respondent No.3-Mr. D'Souza around November, 2003 totally demolished the original structure and constructed a new structure exceeding the original plinth area, FSI and height of the original structure and a structure with additional floor by laying two (2) slabs at 3m and another at 6m.
The Applicant submits that the said structure being constructed in NDZ where no construction is permitted except repairs/renovation of existing authorized structures not exceeding existing FSI, plinth area and existing density, the Respondent No.3 Mr. D'Souza has contravened the CRZ Regulations, 2011 and as such, the structure deserves to be demolished. The Applicant submits that inaction on the part of Authority to demolish the said structure has prompted him to file the present Application.
The Applicant referred to the letter dated 20th January, 2014 addressed to the Member Secretary, GCZMA requesting action in the said case of CRZ violations and submitted that he could not either see any action or any reply to the said communication vide-Annexure-A/6 to the Application. He also referred to the reminders sent by him in that regard to the Member Secretary, GCZMA vide letter dated 11th February, 2014 at Annexure A/7 to the Application.
Respondent No.2 GCZMA responded to the Application with affidavit in reply dated 29th October, 2015 and record of the case maintained by it. GCZMA contended that the affidavit dated 29th October, 2015 was filed for limited purpose, without dealing with each and every averment in the Application, in compliance with the order dated 4th September, 2015. GCZMA admitted that the making of Application dated 23rd May, 2012 by Respondent No.3 Mr. D'Souza for issuance of NOC/permission to repair/renovate the existing house bearing House No.B-74 situate at Reis Magos, Bardez-Goa as per the CRZ Notification, 2011 and site inspection carried out by its Expert Members on 6th August, 2012 vide site inspection report dated 6th August, 2012. GCZMA further revealed that the complaint dated 5th June, 2012 from one Mr. Lawrence Lobo to grant NOC was received. GCZMA added that upon receipt of the Site Inspection Report from the Expert Member, a personal hearing was given to both the contending parties on various occasions, but no final decision was taken in the matter by the Authority on the Application for grant of NOC/permission for repairs and renovation of the house and in the meanwhile the present Application came to be filed.
The Order dated 4th September, 2015 passed by us sought an explanation of the Member Secretary, GCZMA as to why permission for renovation/repairs was granted and what were compelling reasons for expeditiously taking such decision, when the complaint of the Applicant was under consideration. It appears from the reading of the Order dated 4th September, 2015, that the Applicant had brought to our notice the grant of Ex-post facto sanction/permission for renovation/repairs by GCZMA in favour of Respondent No.3 Mr. D'Souza. The Applicant, it appears, then contended that the complaint made by him to GCZMA had remained undecided. We had, therefore, directed GCZMA to decide the complaint of the Applicant within a period of three (3) weeks after hearing the parties and had permitted GCZMA to pinpoint whether Respondent No.3 is recognized as traditional fisherman like community and his structure was existing at the place before CRZ Notification, 2011, indicating exact position of the said structure and the plinth area on the basis of available record.
GCZMA through its affidavit dated 29th March, 2015 further revealed that site was once again inspected on 29th April, 2014 by the Expert Members of GCZMA and the Site Inspection Report dated 29th April, 2014 was submitted as per Annexure-IV to the affidavit and thereafter the proposal for grant of permission was taken up before the Authority in its 105th Meeting held on 2nd July, 2014, when after detailed discussion and due deliberation and on considering the Site Inspection Report dated 29th April, 2014 the Authority had decided to approve the said proposal on certain conditions - a specific condition being that the structure/house should not be used for any commercial purpose vide minutes of the Meeting dated 25th January, 2014 Annexure-V, to the affidavit dated 29th October, 2015. A NOC/permission dated 17th July, 2014 for proposed repairs to the existing house No.B-74 thus came to be issued vide Annexure-VI to the said affidavit.
According to GCZMA, the Application for permission was made much prior to the Applicant approaching the Tribunal and the same was duly disposed of as per the provisions at Para-8 (III) (A) (ii) of the CRZ Notification, 2011, particularly, taking into consideration the survey plan prepared by the Directorate of Survey and Land Records, Govt. of Goa dated 24th October, 2011 and the Inspection Report dated 6th August, 2012 of the Expert Members of GCZMA, which conjointly indicated the structure under reference as an old structure in existence prior to the year 1991.
Respondent No.3 Mr. Henrique D'Souza resisted the Application with reply dated 1st April, 2014. According to him, the present Application is an extension of family feud over inheritance of certain family properties, including the property bearing Survey No.62/5 of village Betim, Bardez-Goa. He reveals that Applicant Mr. Cedric Lobo is the brother of Mr. Lawrence Lobo, whose wife Maria is his sister; and Ms. Maria E. Lobo, the wife of Lawrence Lobo, has filed an Inventory Proceedings and Special Civil Suit against him in the Court of Civil Judge, Senior Division at Mapusa. He submits that the Application is neither the owner nor an occupier of the property in question and is not resident of Betim, so as to earn the status of 'aggrieved person' in terms of Section 18 (2) (e) of the National Green Tribunal Act, 2010.
Respondent No.3 Mr. Henrique D'Souza admitted the existence of property and its location on the north bank of river Mandovi, however, he denied that it is situate in NDZ. According to him, NDZ as envisaged in Para 8(i)(III)(A) under the CRZ Notification, 2011, is not applicable to the areas falling within any notified port limits. Respondent No.3 Mr. Henrique D'Souza relied upon Notification dated 17th February, 2006 Annexure-R/1 to the affidavit issued by Govt. of Goa in exercise of powers by Section 5 of the Indian Port Act, 1908 extending limits of Panaji Port for tidal waters of river Mandovi, and river portion of river bank within 50 yard of high water mark. According to him, NDZ is not applicable to the portion of property in question located within 50 yard of high water mark, the same being situate within limits of Panaji Port.
Respondent No.3 Mr. Henrique D'Souza further contended that the original structure is found depicted on the Govt. survey plan made pursuant to the survey portion conducted sometime in 1970s and thus, the original structure existed much prior to the CRZ Notification, 1991 coming into effect. Respondent No.3 submits that as a law abiding citizen he moved an Application on 23rd May, 2012 before Respondent No.2-GCZMA for grant of NOC/permission to carry out repairs/renovation to the existing structure which was in dilapidated condition due to is antiquity and was susceptible to collapse any time during heavy monsoon showers in Goa. He added that the Application for necessary permission in that regard was also made to Village Panchayat-Reis Magos vide Annexure-R/2 to the affidavit dated 1st April, 2014. Respondent No.3 further submits that Respondent No.2-GCZMA sat tight over the Application moved by him for grant of permission to carry out repairs/renovation till site inspection was carried out on 6th August, 2012. He relied upon the Site Inspection Report dated 6th August, 2012. Respondent No.3 Mr. Henrique D'Souza grieved that Respondent No.2-GCZMA did nothing despite his pleas and he became victim of red-tapesim existing in the organization of the Authority. He further submits that during monsoon season of 2013 a part of the said house collapsed as feared by him, rendering remaining portion of the said house weaker than before thereby exposing the persons in the locality to potential threat of injury due to sudden collapse; and therefore, he carried out repairs/renovation to the said structure in accordance with the plan submitted to Respondent No.2-GCZMA, in the month of November/December, 2013. He explained that the current plinth area of the present structure is lesser than the plinth area of the old house. He denied that the present super structure exceeds FSI and that he had constructed a house with two (2) concrete slabs as contended by the Applicant.
Respondent No.3 Mr. Henrique D'Souza further dealt with the allegations made by the Applicant regarding CRZ violation in another case with which we are not presently concerned - vide affidavit dated 1st April, 2014.
At the outset, we make it clear that we are also not concerned with the family feud between the parties, rather we should remain focused on the issue of environmental degradation arising out of alleged violation of the CRZ Notification, 2011. The record reveals that the Applicant did move Respondent No.2-GCZMA for grant of NOC/permission to carry out urgent repairs to the house No.B-74 situate in Survey No.62/5 of village Reis Magos before rainy season as per the Application dated 23rd May, 2012 and had submitted certain documents therewith namely; the photographs of structure, house tax receipt dated 19th February, 2005, issued by the Village Panchayat, Form No.1 and 14 issued by the Land Records in respect of Survey No.62/5 of village Reis Magos. The record further reveals that one Mr. Lawrence Lobo having come to know about Respondent No.3-D'Souza's efforts to seek permission/NOC for carrying out repairs/renovation to the said house had objected to such grant of NOC/permission vide letter dated 5th June, 2012 (Pg. 21-C of the proposal file vide No. GCZMA-OAM-12-13/27) on the grounds that:
Mr. Henrique D'Souza being CRZ violator in two (2) previous cases, was likely to commit third CRZ violation in the said property;
The right, title and interest in the property which remained to be partitioned by metes and bounds;
Pendency of inventory proceedings No.39 of 1982 and Spl. Civil Suit No. 66/07/C in the Court of Civil Judge, Senior Division, Mapusa in respect of the property in question;
No document marking specific house number VP-74 on plan of Survey No.62/5 Betim, Bardez-Goa.
Pertinently, no specific ground/facts to demonstrate environmental degradation upon violation of the CRZ Notification, 2011 due to grant of such NOC/permission was raised/revealed by Mr. Lawrence Lobo through his letter dated 5th June, 2012. Nonetheless, it appears from the record the attempts were made by GCZMA to personally hear the parties vide Notice and correspondence between GCZMA and Mr. Lawrence Lobo and Respondent No.3- Mr. Henrique D'Souza in the said file.
The record further reveals the complaint dated 20th January, 2014 and the written submissions dated 30th April, 2014 of Applicant-Mr. Cedric Lobo in response to the Notice dated 9th April, 2014 issued by GCZMA. No other complaint of Applicant-Mr. Cedric Lobo is evident from the said record vide Complaint File No.GCZMA/LL-COMPL/13-14/55.
The complaint dated 20th January, 2014 made by Applicant-Mr. Cedric Lobo makes reference to the Application dated 23 rd May, 2012 moved by Respondent No.3 Mr. D' Souza for grant of the said NOC/permission to carry out repairs/renovation to the original structure bearing House No.B-74 situate in Survey No.62/5 of village Panchayat Reis Magos and the said Inspection Report dated 6th August, 2012 of GCZMA. Referring to the provisions of CRZ Notification, the Applicant Mr. Cedric Lobo chose to make allegations not regarding antiquity of the original structure but regarding construction of a new structure in place of the original structure exceeding the plinth area, FSI and construction of additional floor by laying two (2) concrete slabs and further requested its demolition, it being in violation of CRZ Regulations. Filing of the written submissions dated 30th April, 2014 by Applicant Mr. Cedric Lobo demonstrates that the Applicant did avail an opportunity of being heard extended by GCZMA vide Notice dated 9th April, 2014. The written submissions dated 30th April, 2014 reveals reiteration of the contentions raised in the complaint dated 20th January, 2014.
In this backdrop only question that arises for our consideration is whether the construction in question is in violation of the provisions of CRZ Notification, 2011 or not.
The facts and circumstances in the present case are peculiar inasmuch as there existed a structure for the repairs/renovation of which the Respondent No.3 Mr. D'Souza had made an application for grant of NOC or permission to the Respondent No.2 - GCZMA; and the GCZMA after carrying out two site inspections one before the raising of the new structure and another after raising of new structure - had granted post facto permission to carry out the repairs to the existing house bearing H.No.B-74 on specific conditions stipulated therefor namely not to exceed existing FAR, existing plinth area, existing density and not to use the said premises for commercial purpose and not to be sold or transferred to the non-traditional (coastal) community and further subject to the confirmation with local building bye laws.
Taking us through the chronology of events reflected in the record before us the Applicant in person submitted that the Respondent No.3 Mr. D'Souza had made changes in the original structure and material deviations from the original pattern of construction. According to him, the plinth area of the structure had been changed with the reconstruction of the walls, and further the height of the structure had been increased, and in place of manglore tiled roof, the slab had been placed. He further submitted with reference to the site inspection report dated 6th August, 2012 that the original structure was located within 100 metres of HTL of River Mandovi and the recommendations were made for grant of permission to carry out repairs/renovation subject to the same plinth area. However, he submitted that the plinth area was not the same as before and in fact had been increased.
The Applicant further argued with reference to the Judgment passed in Betty Alvares case [Betty Alvares Vs. State of Goa, M.A. No.32/2013 and M.A. No.33/2013] that the definition of the "person aggrieved" under the NGT Act, 2010 had a wide amplitude and the contentions raised on that count by the Respondent No.3 Mr. D'Souza deserve to be rejected. He submitted that the Respondent No.3 Mr. D'Souza ought to have approached this Tribunal with clean hands before he claimed equity in the present case. He submitted that the Respondent No.3 Mr. D'Souza did not bother to obtain prior permission for carrying out the repair/reconstruction of the said premises and taking law in his own hands, constructed a structure beyond the plinth area and with the increased height. However, the Applicant chose not to rejoin the additional affidavit filed by Respondent No.3 dated 13th February, 2017 placing on record the Survey Report dated 10th February, 2017 of the professional surveyor Mr. Prazeras A.
Gonsalves.
Learned Counsel appearing on behalf of Respondent No.3 submitted that the reconstruction of the old structure H.No.74 had to be undertaken in peculiar circumstances. He submitted that the Respondent No.3 Mr. D'Souza waited for the response to his application dated 23rd February, 2005 moved for obtaining permission from GCZMA of repair/renovation to the existing structure and before the NOC/permission was granted the structure partly collapsed, compelling him to take emergent steps for reconstruction. He pointed out from the Survey Report dated 10 th February, 2017 that the new reconstructed structure stands on the location of the old structure and occupies area admeasuring 55.87 sq.mtrs-lesser than the area occupied by original structure admeasuring 57 sq.mtrs. He further pointed out that the said structure despite the height being increased has no storey or mezzanine floor constructed inside the said reconstructed structure and as such the said structure does not offend the provisions under Para No. 8(i)(III)(A)(ii) of the CRZ Notification, 2011. He submitted that the said structure thus constructed needs to be saved from demolition in the interest of justice, it being in consonance with the aforesaid provision in CRZ Notification, 2011.
Learned Counsel appearing on behalf of Respondent No.2 - GCZMA submitted that at the time of initial site inspection carried out by the Authority on 6th August, 2012 the original structure was found standing at the location within 100 mtrs of High Tide Line and the Respondent No.3 had not undertaken any work of construction. She submitted that before the said proposal for grant of permission to carry out repair/renovation would be further processed, the present application came to be filed and the reconstruction was found made during the second site inspection done on 24th April, 2014. She submitted that the CRZ Notification, 2011 does not prohibit grant of post facto permission and also there is no deeming provision in the Notification to assume the grant of permission with the passage of time after making of the application therefor. She submitted that the urgent situation had compelled the Respondent No.3 to undertake the reconstruction of the existing structure.
In the present case the factual situation can be gathered from the undisputed report dated 10th February, 2017 of the Surveyor Mr. Prazeres A. Gonsalves. Survey Report dated 10th February, 2017 which reads as under:
"At the instance of Mr. Henrique De Souza I visited the site of his family property situated at Betim in Reis Magos Village of Bardez Taluka, Goa on the 6th February, 2017.
I was given a certified copy of the survey plan showing the plot bearing survey no.62/5 of Reis Magos village of Bardez Taluka of Goa State.
I was required to identify a structure which was reconstructed by him in the said plot bearing survey no.62/5 of Resi Magos village. I was shown the said structure reconstructed by him at the site.
I took measurements using my total station instrument to locate the location of the said reconstructed structure as found at the site. With the help of the data taken by him I prepared a plan and superimposed the same over the scanned image of the Government survey plan using the Auto Cad software in my computer.
I found that the said new reconstructed structure is constructed over the same location of the old structure shown on the Government survey plan in the said plot bearing survey no.62/5 of Reis Magos village of Bardez Taluka. The old structure as shown in the plot bearing survey no.62/5 on the said Government survey plan occupied an area of 57 sq.m. while the reconstructed structure occupies an area of 55.87 sq.m. as surveyed and found by me at the site.
The present reconstructed structure is constructed using R.C.C and laterited stone masonry walls having a flat R.C.C. roofing, the structure measures a length of 10.41metres by a breadth of 5.37 metres and total heights of 4.70 metres. The internal height of the existing roof slab from the existing ground/plinth level is 4.50 metres. The structure consist of only a singly hall with a toilet of 1.20 m x 1.70 m inside it.
It is found that there is no storey or mezzanine floor constructed inside the said reconstructed structure.
The plan prepared by me showing the location of the said reconstructed structure as found in the plot bearing survey no.62/5 of Reus Magos village of Bardez Taluka is attached to this report." (emphasis supplied)
Admittedly the reconstruction of the existing structure as aforesaid was carried out before the Respondent No.2 - GCZMA had issued the permission dated 17th July, 2014.
The Applicant invited our attention to the Para No.4.2 of the CRZ Regulations, 2011 and submitted that the procedure as stipulated therein was not followed by the Respondent No.3 - D'Souza. He, however refrained from attributing any malafide on the part of the GCZMA. It is correct that the Para No.4.2 of the CRZ Notification, 2011 gives elaborate procedure for considering all projects for CRZ clearance. Whether the repairs/reconstruction of existing authorised structure within NDZ as envisaged under 8(i)(III)(A)(ii) of the Notification can be equated with the projects referred to under Para No.4.2 is itself an issue which we do not intend to enter into for the reason that the permission for carrying out repairs/reconstruction of the existing structure is not the matter of challenge in the present case. The Applicant is merely seeking its demolition on the ground that the said repair/reconstruction of the existing structure is in violation of Para No. 8(i)(III)(A)(ii) of the CRZ Notification, 2011.
Survey Report dated 10th February, 2017 reveals that the reconstruction of the structure stands at the same location where the original structure stood and its plinth area is lesser than the plinth area of the original structure (i.e. 10.41 mts x 5.37 mts = 55.90 sq.mts). It is also evident that there is no storey or mezzanine floor constructed inside the reconstructed premises. The Applicant has also not demonstrated from the record how the present structure would exceed the existing Floor Space Index or existing density. The reconstructed premises, therefore, cannot be said to have exceeded the existing Floor Space Index and density. He also fails to demonstrate or reveal how the existence of the said structure at the same location where the original structure stood could in any way be invitation to dangers of natural hazards in coastal area or promote sea level rise due to global warming or adversely impacts marine environment. He merely relied upon the Judgment delivered by the Hon'ble Apex Court in Piedade Filomena Gonsalves Vs. State of Goa and Ors [ JT 2004 (5) SC 386: Piedade Filomena Gonsalves Vs. State of Goa and Ors. dated 11th March, 2004] to advance the argument that the law frowns upon any misadventure of raising construction without securing permission from the competent authorities.
In Piedade Filomena Gonsalves case (supra) the Hon'ble Apex Court declined to interfere with the Judgment passed by the Hon'ble High Court of Bombay dismissing the plea of the Appellant/Petitioner to save the construction carried out by him from demolition. The Appellant Gonsalves therein had put up a fresh construction within 200 mtrs of HTL in place of original construction of thatched roof supported by laterite stone pillars without securing permission from competent authorities and the application moved by the Appellant for the purpose of regularization of said construction was rejected by Goa State Coastal Committee for Environment - the then competent body.
On facts the case of Piedade Filomena Gonsalves, the Appellant before the Hon'ble Apex Court differs on two material counts from the present case. Firstly, the Goa State Coastal Committee for Environment - the then competent body had rejected the proposal for regularization of the construction in question meaning thereby the reconstructed structure did not conform with the norms set out for reconstruction of the original structure; and secondly, the construction had been carried out on existing sand dunes. The Hon'ble Apex Court, therefore, concluded the Judgment with following observations:
"6. The Coastal Regulation Zone notifications have been issued in the interest of protecting environment and ecology in the coastal area. Construction raised in violation of such regulations cannot be lightly condoned. We do not think that the appellant is entitled to any relief. No fault can be found with the view taken by the High Court in the impugned judgment."
In the case before us, the GCZMA after considering the written submissions of the Applicant taking exception to the grant of permission for repairs/renovation had granted post facto permission to the reconstructed structure standing at the location of the original structure. Thus, the GCZMA took a view that the said reconstructed structure deserves to be permitted to stand within the NDZ of CRZ-III on certain terms and conditions as it conforms with the standards envisaged under the relevant provisions of CRZ Notification, 2011. Significantly both the site inspection reports dated 6th August, 2012 and 29th April, 2014 record the following material observations:
"7. Topography:
Type of soil: Sandy, Rocky, Clay, Lateritic etc.
Topography: Plain, Undulating, Gently sloping, Cliff etc.
Existence of Sand dunes: Yes/No
If Yes, Number of dunes in the property:
Height of the dunes:
Slope: - NA-
Whether the dunes are virgin or tampered: Yes/No If Yes, give details
- NA -
Whether any lagoons, backwaters, or other water bodies exist in the plot.
- NA-
-
(The location of sand dunes and water bodies should be marked on the site plan).
Vegetation:
Pioneer vegetation like bushes, creepers and grasses: Secondary vegetation like coconut, casuarina or other trees. Mangroves: No Any other vegetation or trees:
Distance of seaward boundary from river/sea High Tide Line:
Within 100 mts from HTL of River Mandovi."
Survey Plan annexed to Survey Report dated 10th February, 2017 reveals that the original structure had the stepped shape whereas the reconstructed structure has a rectangular shape meaning thereby that there has been change in the shape of the plinth and to that extent there has been shift in the location of the plinth. We had given thought to the shifting of the location of the plinth in Pritidas M. Sawant's case [ Appeal No.67/2016 Pritidas M. Sawant Vs. GCZMA and 2 Others dated 29th March, 2017] . We had considered the relevant provisions of CRZ Notification, 2011 as under:
"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 conceive 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 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.
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;
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 use 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.
The Respondent No.1-GCZMA while applying the said provision to the facts and circumstances in the 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 of scientific principles governing the same.
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 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 plot 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."
Demolition of the reconstructed structure in question will only add to unwarranted burden on the environment in terms of construction waste. Nowhere in the application or otherwise, the Applicant has revealed any damage to the marine environment due to the construction of the structure in question at the location where old structure stood. Site Inspection Reports have not revealed presence of environmentally sensitive topography or vegetation at the location of the structure in question. GCZMA has prudently stipulated certain specific conditions to protect the coastal environment from the menace of future developmental activities like commercial activities. No fruitful purpose will, therefore, be served by demolishing the structure in question.
In the facts and circumstances as discussed above, we do not see that the reconstruction carried out by the Respondent No.3 Mr. D'Souza is in any way offending to the standards set out for repairs or reconstruction of the existing structure in provisions under Para No.8(i)(III)(A)(ii) of CRZ Notification, 2011, particularly, when the GCZMA had granted permission subject to the specific conditions stipulated therein. Environmental justice, therefore, does not warrant demolition of the structure as solicited by the Applicant, particularly, keeping in view the provisions of Section 20 of the National Green Tribunal Act, 2010 requiring us to apply the principles of sustainable development, the precautionary principle and the polluter pays principle in decision making. We are, therefore, inclined to pass the following order:
(I) The Application No.27/2014 is dismissed with no order as to costs.
(II) The Respondent No.3 - Mr. Henrique D'Souza or anyone claiming through him shall not raise or construct any mezzanine floor or storey in/on the reconstructed structure and shall not use the said reconstructed structure for any commercial purpose and strictly abide by the terms and conditions stipulated by Respondent No.2 - GCZMA in the NOC/permission dated 17th July, 2014 to carry out repairs/renovation.
(III) Liberty granted to Respondent No.2 - GCZMA and the local body Village Panchayat to demolish the said structure in the event of any violation of the terms and conditions stipulated in NOC/permission dated 17th July, 2014 or of any law governing the construction/development.