Kashinath Shetye And Ors vs Jairam Kholkar And Ors

Appeal No. 73/2018 and the Original Application no 24/2019 are taken up together for disposal as both the cases seek to assail order dated 20.09.2018 issued by the Goa Coastal Zone Management Authority (GCZMA) (hereinafter referred to as the impugned order).

By the impugned order, the Respondent nos. 1, 2, 3 and 4 had been discharged from the proceedings instituted by the Appellant in respect of structures in Survey nos. 3/1 and 3/2 at Adcolna Village Ponda, Goa and referring matter in respect of Survey no. 3/3 to the Deputy Collector to verify as to whether the structures, if any, in the Survey no was legitimate.

To state briefly the facts of the case, the Appellant had filed a complaint dated 23.05.2016 before the GCZMA against the Respondent nos 1, 2 and 3 alleging violation of the Coastal Regulation Zone (CRZ) Notification in raising a new house/building, building compound walls, cutting mangroves and filling the creeks at Adcolna Village, Panchayat Banastarim area, Ponda, Goa in Survey nos. 3/1, 3/2 and 3/3 which, according to Appellant, fall under CRZ - I and CRZ - III under the CRZ Notification without obtaining necessary clearance from the GCZMA. The GCZMA upon consideration of a site inspection report carried out by the Expert Members of the GCZMA on 03.08.2018 and, after examination of the documents on record and personal hearing of the parties, passed the impugned order discharging the respondents from the proceedings pertaining to the structures in Survey nos. 3/1, 3/2 at Adcolna Village Ponda, Goa in terms of the decision taken in its 182nd meeting held on 28.08.2018 thereby disposing of the complaint finally.

The grounds set-out by the Appellant to assail the impugned order as follows:

i) The Draft Coastal Regulation Zone (CRZ) Map 2011 prepared by the National Centre for Sustainable Coastal Management (NCSM) in May 2017 shows that 3/4th of the area as water body i.e., CRZ IVB (River Creek) and, therefore, Survey nos. 3/1, 3/2 and 3/3 would fall within No Development Zone (NDZ) of Coastal Regulation Zone (CRZ).

ii) The draft CRZ Map prepared by the NCSM in May, 2017 have been interpolated to remove the Survey nos in question to be shown as an agricultural field and further, the DSLR was coerced into conducting an inspection and in submitting report stating that Survey nos. 3/1 and 3/2 would fall beyond the CRZ limits. Inspection report of the GCZMA clearly reveals that a sluice gate in the westerly direction of plots no. 3/3 blocks the flow of water from the River at Banastarim from entering into the agricultural fields.

iii) That the Respondents nos. 2 to 4 had admitted in Original Application No. 172/2017 that 3/4th of Survey nos were filled with water where fishing was being done. The salinity of Survey nos. 3/1, 3/2 and 3/3 established that these are No Development Zone (NDZ) of CRZ as per the survey done by NCSM and the map drawn in Map, 2017.

According to the Appellant, the GCZMA failed to take note of the above facts which establish that the construction of the structures, buildings and compound walls in Survey nos. 3/1, 3/2 and 3/3 fall within the CRZ - I and CRZ - II and, therefore, in violation of the CRZ Notification having not taken the requisite permission from the GCZMA. Further, no permission had been obtained by the Respondents also for felling Mangroves, teakwood and coconut trees and for filling the creek at Ponda, Goa.

In his oral arguments, the Appellant strongly urged that the Respondent nos. 1, 2 and 3 have encroached upon the creeks falling within the NDZ by raising constructions and dumping construction debris. No permission had been obtained from the GCZMA as required under the Goa (Regulation of Land Development and Building Construction) Act, 2008 and the Goa Land Development and Building Construction Regulations, 2010. Referring to the site inspection report of the GCZMA (undated), it was urged that GCZMA had completely overlooked the fact that the land in question were Khazan land and, therefore, falling in the NDZ as would be apparent from the GCZMA report that a sluice gate blocked the flow of water from the river in to the land at Banastarim.

The Appellant re-emphasised his contention that the draft CRZ Map 2011 had been manipulated by the authorities to exclude the areas in question out of the NDZ to benefit the Respondents.

In her reply the learned Counsel for the GCZMA refuted all factual allegations made in the appeal and sought to justify the impugned order by referring to various portions of the impugned order. According to the learned Counsel for the Authority, there was no error on the part of the authority in passing the impugned order as it took into consideration all facts and circumstances and had examined the various contentions raised by the Appellant in the light of the records of the case.

We have considered the rival contentions of the parties, examined the impugned order and perused the records and we find that the GCZMA has taken all relevant factors into consideration in passing the impugned order including the objections raised by the Appellant. As regard the contention of the Appellant that the water body in the area beyond the sluice gate was a tidal influenced water body, it has been observed that it was an agricultural land with Survey no. 3/1. The Authority found that inspection of Survey nos. 3/1 and 3/2 conducted jointly by the DSLR and GCZMA in the year 2010, had revealed that the plots in question were beyond the NDZ of the river. Further, inspection carried out again on 03.08.2018 by the Expert Members of DSLR and GCZMA showed that there was no tidal influence to the water filled in the agricultural land and, the sluice gate allowed only the water from the agricultural land to flow out during low tide but prevented the riverine water from entering into agricultural land during high tide. The Authority was thus satisfied that Survey nos. 3/1 and 3/2 were beyond NDZ of the river and also that there was no mangrove in the survey nos in question except beyond the agricultural water body. As regards Survey no 3/3, the Authority found that according to the DSLR plan, it was partially under the NDZ but there was no proposal for any construction in that survey no. Forms I and XIV submitted by the Respondents showed that there were many occupants of land in Survey no. 3/3 and, therefore, held that it would not be appropriate to presume that the occupants were in violation of the CRZ norms.

It is based on the above findings that the impugned order had been passed discharging the respondents from the proceedings.

The decision of the Hon'ble Supreme Court dated 25.11.2019 in Civil Appeal No. 5109/2019 cited by the Appellant is not applicable in the facts of the present case and is clearly distinguishable as it was decided in the context of an original application filed under Section 14 of the National Green Tribunal Act, 2010, ambit and scope of which is quite distinct from the present proceedings which is an appeal under Section 16 of the said Act.

We thus do not find any error in the impugned order. The Appellant has failed to make out any case for our interference.

In the result the Appeal No. 73/2018 and the O.A no 24/2019 are dismissed with no order as to costs.