Mr. Francis Misquita vs Goa Coastal Zone Management Authority And Ors

This appeal has been filed under Section 16(g) read with Section 18(1) of the National Green Tribunal Act, 2010, challenging the order/directions dated 10th December 2015 issued by the Member Secretary of Goa Coastal Zone Management Authority (GCZMA). The directions have been issued using powers conferred upon GCZMA under Section 5 of Environment (Protection) Act, 1986.

The Appellant contends that he and Respondent No. 2 are real brothers and have serious family dispute related to the ancestral property. Respondent No. 2 has filed complaints against him with various authorities including the GCZMA alleging illegal construction by the Appellant. His grievance is that the GCZMA, without carrying out any investigations as to the correctness and true fact position regarding the allegations made by Respondent No. 2, has gone ahead by issuing a Show Cause Notice to the Appellant vide letter dated 12th August 2015, intimating the Appellant that Respondent No. 2 has filed a complaint about the illegal construction by the Appellant in contravention to CRZ Regulations. Appellant has further averred that in the said Show Cause Notice, two weeks time was given to file his reply. Thus, he sought information under RTI from the GCZMA regarding the status of his property and adjoining area from CRZ point of view for ascertaining whether such allegation be entertained. However, GCZMA has declined to give such information on the ground that the information sought is in the nature of opinion.

This further averred that GCZMA in the meantime has forwarded the complaint of Respondent No. 2 to the various authorities like Deputy Collector, Panchayat and Block Development Officer for further necessary action. Based on it (directions from GCZMA) the Deputy Collector has initiated enquiry vide letter dated 19th August 2015 inter alia referring to the GCZMA notice dated 12th August 2015. The Appellant claims that this enquiry is still pending.

Appellant further submits that he had sought additional time to file reply but the GCZMA had given only two additional weeks to submit this information. Subsequently the Appellant replied to the Show Cause Notice vide letter dated 11th December 2015.

Appellant claims that the structures in question are pre-1991 and are duly reflected in the survey plan prepared by Director of Land Survey Government of Goa, in compliance to the directions given by Hon'ble High Court of Bombay at Goa in Suo moto Writ Petition No. 2 of 2006, which is the most authentic record of the existence of impugned structures prior to 1991. Appellant submits that without verification of such documents which are already available with GCZMA and without any investigation or verification of the allegations made in the complaint, GCZMA has gone ahead with issuance of final directions of demolition vide letter dated 10th December 2015 i.e. impugned order.

Appellant further alleges that he has not been given any opportunity or personal hearing in this matter and further contends that directions for demolition of structure is normally a extremely serious affair and the GCZMA should have followed the principles of natural justice, stricto senso, by giving full and fair opportunity to the Appellant to defend his case. Appellant alleges that instead of following such settled legal procedure and practice, the Member Secretary of GCZMA, for the reasons best known to him, has issued the impugned directions without hearing the parties and also without carrying out any investigation/verification of the allegations made in the complaint.

Appellant also alleges that the Member Secretary has issued the impugned directions without any authority of the law as the powers under Section 5 of the Environment (Protection) Act have been bestowed upon the GCZMA as an authority. He further alleged that Member Secretary is not legally competent and authorised to issue such directions on his own.

The learned Counsel appearing for GCZMA submitted that the GCZMA has issued Show Cause Notice which clearly records that in the event of failure of Appellant to file a reply along with required documents, necessary further action will be taken. GCZMA submits that the Appellant should have taken necessary steps to file his reply to the show cause with supporting documents. It is further submitted that the GCZMA has issued the show cause and the final directions is a procedure formality which is dependent on compliance of the show cause and therefore there is no infirmity and irregularity in the final directions.

We have gone through the records and also submission of the learned Counsel. The scope of Appeal proceedings is limited to test the impugned order on its legality, reasonability and application of mind, besides principles of natural justice. The Show Cause Notice dated 12th August 2015 clearly indicates that notice is issued primarily on the allegations made in the complaint dated 29th October, 2014 received from Respondent No. 2. The Show Cause Notice while giving time of two weeks i.e. upto 27th August 2015 also advises the Appellant to remain ready for the personal hearing on the subsequent date which will be communicated to Appellant. It is a matter of record that Appellant has sought RTI information about the CRZ status of the disputed properties.

It is manifest from the impugned order that it is primarily based on the premise that no reply has been filed by the Appellant; in spite of additional time granted to file such reply. There is no whisper about any enquiry or investigation carried out by GCZMA to check the veracity of the allegations made in the complaint. Furthermore, it is also admitted by GCZMA that the powers under Section 5 of the Environment (Protection) Act, 1986 have not been specifically delegated to the Member Secretary of the GCZMA. The impugned directions were not placed before GCZMA authority for its approval.

What we observe in the present case is that Member Secretary GCZMA has issued the impugned order in a mechanical manner, without independent assessment of the alleged violations and the findings to establish such violations. He has gone ahead to issue such directions only on the premise that Show Cause Notice has not been replied. What is required in any such proceedings is that the allegations in compliant must be independently verified and investigated by the authorities, before reaching to any conclusion. Even if there is no reply filed by the noticee, the authorities need to satisfy themselves by proper application of mind, based on all the relevant documents and investigation report, about the alleged illegalities and then only issue such directions.

Thus, we are inclined to agree with the contention of the Appellant that the direction for demolition of structure is serious business and the authority needs to be extra careful in issuing such directions. It must precede by applying principles of natural justice, before issuing such directions. In the present case no opportunity of personal hearing was also given, though the same was indicated in the Show Cause Notice.

In view of above discussions, we are of the considered opinion that the impugned order cannot be sustained due to violation of the principle of natural justice, lack of application of mind and also absence of authority in the Member Secretary to issue such directions and therefore, the impugned order is quashed and set aside.

In view of the peculiar circumstances, we direct the GCZMA to revisit its operational procedures in the matter relating to issuance of the Show Cause Notice like in the present case, issued without any preliminary investigation/verification. It should not solely base on the contents of the complaints received. We are informed that many times such Show Cause Notices are also to stop work. The Chairman of GCZMA is directed to take a note of this lapse and take further necessary action within next one month, without fail to ensure fair play and judicious approach. A compliance report be placed on record.

The Appeal is, therefore, allowed and the impugned order is quashed and set aside. GCZMA is directed to pay cost of Rs. 10,000/- to the Appellant as costs.