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Judgment
By this Application,a group of six Applicants have raised objection regarding thealleged CRZ violation by the Respondent No.1 in Survey No.81, sub-division-3 of Sonar Bhat, Verem, Reis Magos, Bardez, Goa, claiming that the construction of new bungalow on the grab of being fisherman in NDZ area of CRZ-III, would raise a substantial question relating to environment. They claim that the project of Respondent No.1 suffers from following infirmities:
It violates CRZ Notification as alleged project is in NDZ of CRZ-III.
No CRZ permission has been taken to build a new bungalow with swimming pool.
It is tried to be shown that Respondent No.1, is habitant of local of that area in order to grab this illegal construction from local community with the help of Panchayat staff.
TheApplicants state that there was no construction or other house in Survey No.81/3, Reis Magos, Bardez, Goa on 19.2.1991, or till 2012. They have relied on the Google maps. The Applicants have approached this Tribunal on the following grounds:
a) The Bungalow of Anil Arora in survey No.81/3, in NDZof CRZ-II and violates CRZ Notification and the CZMP Plan of Goa;
b) This entire plot was a barren plot and therefore cannot be developed after 19.02.1991as it would violate the CRZ Notification,
c) No permission was taken to build a new Construction bungalow by Anil Aroora.
The Applicants further submit that the cause of action arose on 13.7.2015.
The Applicants have therefore prayed for following reliefs:
a) Order quashing the illegal order dated 8.10.2015 passed by the Member Secretary GCZMA without hearing the Applicant/Appellant and in total disregards to the law, principle of natural justice and in violation of the order of SESA Goa passed by the Principle Bench of NGT at New Delhi.
b) Order directing the demolition of bungalow of Respondent No.1 in survey No.81/3 of Sonar Bhat, Verem, Reis Magos, Bardez Goa in CRZ-III zone.
c) Order directing no further construction Respondent No.1 in survey No.81/3 of Sonar Bhat, Verem, Reis Magos, Bardez Goa. To restore and restitution of the land to its original condition area by demolishing the construction.
In response to this Application, Respondent No.1 filed an affidavit on 10.10.2015 and has raised preliminary objections. Respondent No.1 submits that Goa Coastal Zone Management Authority (GCZMA) which is the statutory authority for implementation of CRZ Notification, has already initiated action against the Respondent No.1, based on the complaint received from the Applicants, herein. Therefore, if the Applicants have any grievance as regards decision taken by the statutory body, the remedy would be by way of an Appeal under Section 16 of the National Green Tribunal Act, 2010. Respondent No.1 submits that as a statutory authority has already initiated action including Show cause Notice under the provisions of Environment (Protection) Act, 1986, the claim of the Applicants regarding cause of action cannot be entertained by this Tribunal.
It is also submitted that verification and affidavit are not in accordance with law and further pleadings in the Application are extremely vague and no grounds in detail have been raised. Respondent No.1 submits that the Applicants have not made a single averment as to when the Applicants gathered knowledge of alleged illegal construction in the subject property. Respondent No.1 submits that necessary permissions from the Authorities were obtained for repair/renovation of the existing structures, which was completed back in May,2014. Therefore, the Application is also barred by limitation under Section 14 of the NGT Act. Shorn off un-necessities, Respondent No.1 submits that he is the owner of the subject property and purchased the property in the year 2012. Respondent No.1 further states that all the structures in Survey No.81/3 are legal, existing authorized structures and permitted by various authorities which can be seen from the records and also earlier sale-deeds. It is submitted that necessary permission for renovation/repairs was taken from GCZMA on 31st October, 2011 and from Village Panchayat on 1st June, 2013. All the repairs/renovation have been carried out strictly in compliance with these permissions.
Respondent No.1 further counters the claim of the Applicant that through this Application any substantial question relating to environment is raised. It is submitted that the Respondent No.1 is entitled to put the said property for any use/purpose in accordance with law. It is submitted that the said property does not fall under NDZ of CRZ-III area, but falls within CRZ-III i.e. on the landward side of NDZ area. Further, there exists a road between the said property and the River and the property is on the landward side of the said road. The allegations are also denied claiming that there is hill in the said property and therefore, question of hill cutting does not arise.
It is also submitted that GCZMA had issued a Show cause Notice/stop work order on 23.7.2015, and after necessary inquiry GCZMA has informed to one of the Applicants i.e.KashinathShetye that based on the inspection and documents, GCZMA cannot proceed ahead with the complaint as stated above. This communication was brought to the notice of this Tribunal on 10th October, 2015, when the copy of communication was made available to the Applicants. The Applicants had sought time to give response to this report and inspection. In view of above facts and circumstances learned Senior Counsel appearing for Respondent No.1 submits that the case of the Applicant is that the construction is a new construction in violation of CRZ Notification. This fact is countered by the Respondent No.1 by claiming that the structures are in existence prior to 1991 and repairs/renovation was allowed by the GCZMA subject to terms and conditions in 2011. It is also submitted that on 13th July,2015, the complaint was filed with GCZMA regarding subject property and immediately thereafter on 29th July,2015, the Applicants have approached this Tribunal, claiming non-performance of duties by the statutory authorities. Therefore, the Respondents submit that simultaneous proceedings were commenced deliberately by the Applicants one before GCZMA and another before NGT, which is against judicial discipline and is a travesty of justice. It has been argued that during pendency of this Application GCZMA has concluded its proceedings on the complaint filed by the Applicants and accordingly on 8th October, 2015, it has taken decision and now, therefore, it is necessary for the Applicants to take suitable remedy as available under the law and the present Application cannot sustain.
This particular aspect was deliberated and recorded daily order sheet of 9th February, 2016, which is elaborate, wherein under peculiar circumstances, the Tribunal had expressed that as a decision has been taken by the GCZMA, the same can be challenged under appellate provisions of the NGT Act. The Applicant had sought two weeks' time to move such Application. Thereafter, it could be seen that the Applicants, instead of filing an Application, has filed an affidavit which is not in terms of rules and procedures of the Tribunal as observed in daily order dated 11th March, 2016. Thereafter the Application was heard on 22nd July, 2016. One of the Applicants Mr. KashinathShetye present in person. He submits that visit report of GCZMA dated 5.10.2015 would clearly indicate that there is a new and complete construction. However, GCZMA in its own wisdom has interpreted said report to conveniently stopped the proceedings against the Respondent No.1. On being questioned why he has not challenged the said decision of GCZMA through an appropriate legal proceeding the only response for the Applicant was that he has filed affidavit on 11th March,2016 to convert this Application into Appeal.
Learned Senior Counsel appearing for Respondent No.1, submits that in view of decision taken by GCZMA, it was necessary for the Applicant to avail alternate and efficacious remedy as allowed by law in the form of Appeal. He submits that the present Application cannot sustain in view of finality of the proceedings before GCZMA and decision taken by the authority. It is submitted that it is necessary to avoid duplication in the proceedings to reduce judicial burden in the public interest. He further contends that in view of necessary investigation and decision by GCZMA, alleged cause of action, as claimed by the Applicant do not survive any more. He therefore sought dismissal of the Application.
We have gone through the documents and pleadings and submission of learned Counsel and the Applicant. We have noticed that Respondent No.1 has purchased the property in question which has changed several hands in last couple of years. We have perused said document dated 11th June, 2012 as well as 8th October, 2009. In both these documents the property admeasuring an area 700sq.m along with house therein admesuring area of 148sq.m has been mentioned. It is the contention of Respondent No.1 that they have obtained necessary permissions for repairs/renovation from GCZMA vide letter dated 31st October, 2011. It is necessary to reproduce contentions of this communication to understand conclusion of such non descriptive order.
GOA COASTAL ZONE MANAGEMENT AUTHORITY
C/o Department of Science, Technology & Environment,
(Govt. of Goa)
Opp. Saligao Seminary, P.O. Saligao, Bardez, Goa- 403511.
Phone: (0832) 2407580, 2407187, 2407189 Fax: (0832) 2407176
Ref. No. GCZMA/N/11-12/58/832
Dated: 31/10/2011
To,
Shri Gokul Kumar,
Porvorim,
Bardez-Goa.
Sub: Proposed repairs and renovation of the existing house in Survey No. 81/3 of Reis-Magoa Village, Bardez, Taluka.
Sir,
With reference to your application on the above mentioned subject, it is hereby conveyed that this Office has examined your case in the 63rd GCZMA (Sub-Committee) Meeting held on 20/09/20111. In accordance to the provisions of the CRZ Notification, 2011, approval is hereby granted for repairs and renovation only of the existing house in Survey No. 81/3 of Reis-Magos Village, BardezTaluka; not exceeding existing FSI, existing plinth area and existing density, and further subject to the confirmation with local building bye laws. This approval is subject to the following conditions:
All the provisions of the CRZ Notification should be strictly complied with.
Prior to the commencement of the 'repairs/renovation' work, it will be incumbent upon the applicant to obtain appropriate licence from the Village Panchayat Concerned.
This permission is liable to be revoked, if it is found, at any stage, that the application contained false information/wrong plans/calculations/ documents or any other incorrect/wrong accompaniments.
(J) Application No.87 of 201513of 15
The completion of the repair work should be informed to this office for the purposes of verification.
Yours faithfully,
Sd/-xxx
(Michael M. D'Souza)
Member Secretary, GCZMA &
Director/Ex-Office, Jt. Secy. (STE)
Copy to:
The Panchayat Secretary, Village Panchayat of Reis-Magos, Bardez, Goa.
It can be seen that GCZMA has approved such repairs/renovation without mentioning anything like what is existing plinth, what is existing FSI or without any observations/recommendations by local planning authority. We are of the opinion that in case GCZMA would have been more descriptive while referring to objective quality criteria, such controversy would not have been arisen. Be that as it may, GCZMA has now taken a decision which was in the knowledge of the Applicants as early on 10th October, 2015 when the Applicant was given liberty to move an Application for necessary amendment to challenge such order in Appeal. We are of the considered opinion that this Tribunal at this stage need not go into details of controversy in the present Application as GCZMA has already taken decision which could have been challenged by the Applicants by initiating appropriate proceeding. Therefore, cause of action as portrayed by the Applicants do not survive.
In the present circumstances, we are of the opinion that the Application does not survive anymore and accordingly, the Application is dismissed with no order as to costs. In spite of the liberty given, the Applicants have not taken steps to convert this Application into Appeal and chose to file only affidavit, which was noted to be not as per the procedure in our order dated 9.2.2016.