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Judgment
The Applicants are seeking directions to the Respondent No.3 Goa Coastal Zone Management Authority (GCZMA) and Respondent No.4- Deputy Collector, Bardez Goa to demolish the remaining illegal structures in the property bearing S.No.213/23-A of village Anjuna, Bardez, Goa. According to the Applicants, the Respondent No.2-Eliano Pereira, illegally constructed structures in the property bearing S.No.213/23-A of village Anjuna, Bardez Goa No Development Zone falling within 100 mtrs. of High Tide Line (HTL) declared as per Coastal Regulation Zone 2011 and the said structures were ordered to be demolished by the Respondent No.3-GCZMA upon the complaint initially moved by Respondent No.1-Jaiprakash Sirsaikar on 20th April 2015 vide Order/direction under Section 5 of the Environment (Protection) Act, 1986 dated 6th August 2015; and Respondent No.1-Jaiprakash Sirsaikar and Respondent No.2-Eliano Pereira had put up a show before this Tribunal on 13th August 2015 by making a statement that the directions of the Respondent No.3-GCZMA were complied with and got the Application No.60/2015 moved by Respondent No.1 Jaiprakash Sirsaikar for action in that regard disposed of.
Actually, the Applicant submits, the demolition of all the structures had not taken place and partial demolition occurred later on i.e. on 14th September, 2015. It is in such circumstances, the Applicants submit through the Applicant No.1 Kashinath Shetye moved an Application dated 24th August 2014 before Respondent No.3-GCZMA complaining of failure to demolish the said structures. The Respondent No.3 GCZMA thereupon further directed Respondent No.2 Eliano Pereira to demolish the illegal cottages / structures located in the said property and restore the land to its original condition within seven (7) days vide order dated 25th August, 2015. It was further directed that failure on the part of Respondent No.2-Eliano Pereira to demolish the cottages/structures, the Deputy Collector and Sub Divisional Officer (SDO) Bardez, Goa would be removing the said cottages/structures and recovering the expenses incurred therefor from Respondent No.2-Eliano Pereira.
The Applicants submit that Respondent No.2-Eliano Pereira challenged the directions dated 25th August, 2015 passed by Respondent No.3-GCZMA in Writ Petition No.701/2015 preferred before the Hon'ble High Court of Bombay at Goa (Eliano Pereira V/s. State of Goa & Ors.). It appears that the Applicant No.1 Kashinath Shetye intervened in the said Writ Petition and the Hon'ble High Court eventually rejected the said Writ Petition vide order dated 10th September 2015, with following material directions :
As far the next grievance of the learned counsel appearing for the petitioner is concerned, considering that such directions are stated to be in terms of the provisions of Section 5 of the Environment (Protection) Act, 1986, an alternate remedy is available to the petitioner to challenge such directions before the learned National Green Tribunal. Hence, we find that it would not be appropriate for this Court to interfere in such directions in the present proceedings considering the stand taken by the respondent no.2 which is otherwise disputed by the petitioner. In case any representation is made as stated by the petitioner, the authorities shall examine the same in accordance with law.
Subject to above, the petition stands accordingly rejected. All contentions of the parties on merits are left open.
The record reveals that Respondent No.2-Eliano Pereira thereafter moved an Appeal No.62/2015 alongwith the delay condonation application M.A. No. 247 of 2015 challenging the order dated 25th August, 2015 passed by the Respondent No.3-GCZMA before us on 2nd December 2015. The Appeal was found grossly time barred and was dismissed with following material directions :
"Though, the Appeal/Application made by the Applicant/Appellant is unsustainable and will have to be dismissed on merits yet he is at liberty to apply for permission to get license to erect temporary shacks as per Tourism Department policy prevailing in the State of Goa, if it is so permissible in his case and if he apply within given time. The Appeal is accordingly disposed off. The Application is accordingly dismissed and disposed off".
Respondent No.1-Jaiprakash Sirsaikar has filed reply dated 7th December 2015 (pp 58 to 60) in the present Application. He briefly contends that he was misled by the compliance report dated 10th August 2015 filed by the Respondent No.2 Elaino Pareira, therefore, the Respondent No.3-GCZMA which enclosed pictures of wooden huts being dismantled and was prompted to make a statement on 13th August 2015 before the Tribunal that the directions dated 6th August 2015 passed by Respondent No.3 were complied with. According to him, he believed the project proponent that the directions of GCZMA were complied with and that the said cottages / structures were demolished. He added that after making such statement before the Tribunal on 13th August 2015, he was hospitalized and was advised bed-rest for some days and thereafter, when he was passing by the said property, he had noticed that Respondent No.2 Eliano Pareira had not fully complied with the said directions and he immediately complained to the Respondent No.3-GCZMA and lateron moved an Application under Section 26 of the National Green Tribunal Act, 2010 bearing M.A.No.214/2015. He further revealed in his reply that he had lodged the complaint before the Judicial Magistrate First Class, Mapusa against the project proponent as per the liberty granted by this Tribunal while disposing of the said M.A.No.214/2015 (page 83) vide order dated 29th August 2015.
Respondent No.2-Eliano Pereira filed exhaustive reply dated 10th May 2016 alongwith the written notes of argument dated 9th May 2016 before the Tribunal on 11th May 2016. The Respondent No.2 questioned the maintainability of the present Application on the ground that he cannot be judged twice in view of the liberty granted to the Applicant in Application No.60/2015 to take steps for prosecution under Section 26 of the National Green Tribunal Act, 2010, if the non-compliance was noticed vide order dated 13th August 2015 passed in Application No.60/2015. The Respondent No.2 further contended that no substantial question relating to the environment is involved in the present case and the Applicants, masquerading as an environmentalist is making false and baseless allegations with malafide intentions and this can be perceived from the fact that he is turning a blind eye to the gross violations of the CRZ Regulations caused due to raising of structures at Vagator beach, village Anjuna adjacent to the properties of the Respondent No.2 namely "Antares Beach Club and Resort" in Survey No.214/4 and 214/5 and "Shalai Cliff Resort" in Survey No.213/4 and "Sea Palm Bar & Restaurant" in Survey No.213/9. The Respondent No.2 as a corollary to these contentions, questioned locus-standi of the Applicants in moving this Application. The Respondent No.2 denied hill-cutting and construction of staircase to climb the terrace portion of the hill in the property in question. According to him, the staircases are the traditional access and the Restaurant and structure of restaurant existed in the property since the times of his ancestors i.e. prior to 1991, and all other structures of temporary nature were demolished and dismantled. The Respondent No.2 further explained that only stones were used for levelling and the mud-masonry work raised was plastered by concrete.
In the written notes of arguments besides referring to the contentions raised in the reply, the Respondent No.2 commented on the Court Commissioner's report and elaborated that there were no concrete or pacca structures and the masonry work has been plastered to give it a look as if it is a concrete structure.
Respondent No.3-Goa Coastal Zone Management Authority (GCZMA) joined the issue with reply dated 15th March 2016. Respondent No.3 GCZMA reveals in its reply that upon receipt of the complaint dated 20th April 2015 of Respondent No.1 Jaiprakash Sirsaikar in respect of the illegal construction of cottages by hill cutting in the property bearing S.No. 213/23-A at Vagator, Anjuna, Bardez, Goa, it issued show cause notice-cum-stop work order No. GCZMA/N/ILLE-COMPL/15-16/22/223 dated 5th May 2015 to the Respondent No.2 with a direction to stop the work with immediate effect and the Respondent No.2-Eliano Pereira, gave replies dated 12th May 2015, 3rd July 2015 and 27th July 2015 enclosing certain documents to the said notice and contended that as a lawful owner of the said property, he has been operating temporary shacks in the said property for last several years after obtaining necessary permission from the Department of Tourism and the Village Panchyat, Anjuna-Caisua. The Respondent No.3 GCZMA further reveals that upon perusal of the reply filed by Respondent No.2-Eliano Pereira and the documents annexed thereto, it was found that no prior approval was obtained from Respondent No.3 GCZMA as required under Coastal Regulation Zone Notification, 2011 for raising the said construction/cottages and considering the judgment dated 17th December 2014 passed in Application No.3/2014, (Mr. Aleixo Pereira Vrs. State of Goa and Others) by this Tribunal, setting aside certain permissions it was noticed that all the structures/cottages constructed by hill cutting were in violation of CRZ Notification, 1991/2011 and as such the Respondent No.3-GCZMA ordered to demolish the cottages/structures standing on the said property upon invoking the provisions of Environment (Protection) Act, 1986 vide order dated 6th August 2015. The Respondent No.3-GCZMA further reveals that in view of the complaint made by Applicant No.1 Kashinath Shetye vide letter dated 24th August, 2015 to the Respondent No.2, particularly upon noticing that directions dated 6th August, 2015 issued were not complied with in totality and the structures still existed in violation of CRZ-Notification 2011. The Respondent No.3-GCZMA stated that in pursuance to the order dated 10th September 2015 passed by the Hon'ble High Court Bombay in Writ Petition No.701/2015, the Respondent No.2-Eleino Pereira moved an Application dated 27th July 2015 before the authority to put up a temporary structure in his private property and the said Application was considered by the authority in 120th Meeting held on 11th September 2015 and after discussion and due deliberation, it noted that Mr. Eliano Pereira had already constructed the temporary huts without prior approval of GCZMA and violated the CRZ Notification, 2011 and there being no provision in CRZ Notification 2011 to grant ex-post-facto approval it decided to reject the Application/proposal for erection of temporary huts moved by Respondent No.2-Eleino Pereira.
Respondent No.3-GCZMA in its reply, however, confirmed the fact that the demolition was carried out partly on 14th September 2015 and six structures were demolished and some remained un-demolished vide letter dated 15th September 2015 received from Respondent No.4 Deputy Collector, S.D.M. Bardez, Goa. Interestingly, the GCZMA in its reply reveals that after the correspondence between the Authorities and Respondent No.4-Deputy Collector and S.D.M. Bardez, Goa for arranging demolition of the structures standing on the property in question, the demolition was carried out on 8th December, 2015 vide letter dated 10-12-2015 received from Respondent No.4-Deputy Collector and S.D.M. The Respondent No.3-GCZMA denied that it made any false statement before Tribunal regarding any fact concerning the present case.
Rival pleadings before us thus beg a short question as to :
"Whether all the cottages/structures on the property S.No.213/23-A at Vagator, Anjuna, Bardez Goa which were ordered to be demolished as per the order dated 6th August 2015 annexed by Respondent No.2 to the present Application were actually and completely demolished or not ?
Genesis of the present controversy arises from the complaint made by the Respondent No.1 Jaiprakash Sirsaikar vide letter dated 20th April 2015 annexed to the Application No.60/2015 moved by Respondent No.1- Jaiprakash Sirsaikar at Exh.B. Respondent No.1-Jaiprakash Sirsaikar made complaint to the Member Secretary, GCZMA regarding work of construction of structures/cottages carried out in S.No.213-23-A, area falling in No Development Zone i.e. less than 100 mtrs. in High Tide Line at Vagatar, Anjuna, Bardez by hill cutting without any approval from Competent Authority-GCZMA. This prompted the Respondent No.3-GCZMA to issue a show cause notice dated 5th May 2015 Exh.C annexed to the Application No.60/2015 to the Respondent No.2 Eleino Pereira wherein GCZMA described the details of violations as follows :
S.No.
Name of the Party/alleged violator
Survey No.7 Village
Type of Construction
Distance from HTL
1
Mrs. Eliano Pereira
213/23-A Vagator, Anjuna Village, Bardez, Goa
Illegal construction of cottages by hill cutting
No Developm ent Zone.
Copy of the complaint dated 20th April 2015 was enclosed with show cause notice dated 5th May 2015. It is not in dispute that the show cause notice was replied and order dated 6th August 2015 to demolish the illegal construction of cottages located in the said property under Section 5 of the Environment (Protection) Act, 1986 read with Rule 4 of Environment (Protection) Rules, 1986 as per annexure R-2 came to be issued by Respondent No.3-GCZMA. Infact, the Respondent No.2 Eliano Pereira herein appeared before us in Application no.60/2015 moved by the Respondent No.1 Jaiprakash Sirsaikar for directions to Respondent No.2-Eliano Pereira, GCZMA and Revenue Authorities to demolish the illegal construction carried out by Respondent No.7 therein i.e. Respondent No.2-Eliano Pereira herein in the said property and made a statement that the directions for demolition issued by the Respondent No.3-GCZMA to remove the structures from S.No.213-23-A were complied with by him vide order dated 13th August 2015 passed in Application No.60/2015.
Respondent No.2-Eliano Pereira gave series of replies dated 12th May 2015, 3rd July 2015 and 27th July 2015 to the show cause notice dated 5th May 2015 which have been annexed at Ex.2 collectively to reply of Respondent No.3 dated 15th March, 2016. Significantly, perusal of these replies reveal reference to only erection of temporary wooden terrace, cottages, huts and not to any structure/restaurant constructed prior to 1991. Reply dated 27rd July 2015 Ex.2 collectively as well as communication dated 10th August 2015 to GCZMA categorically makes assertions as under :
"I am inherited lawful owner in possession of the property bearing S.No. 213/23A of village Anjuna, Bardez-Goa, property being garden of nature (A2) with fruit bearing tress such as coconut, cashew etc. and planted at various terraced levels in my sloppy land terrain. Since rocky land and not conducive for plantation the plants started to slowly diminish. So in the year 2004/2005, I decided to begin with temporary seasonal huts for tourist purpose. And, while doing such tourist related business I have been granted, all necessary permission from Tourism department & Local Panchyat body respectively".
Learned counsel appearing on behalf of Respondent No.2 Eliano Pereira submitted that the original complaint dated 20th April 2015 made to GCZMA was in respect of construction of cottages in the said property and as a corollary thereto the show cause notice dated 5th May 2015 describing the construction as cottages was issued. He added that the demolition which was ordered by the Respondent No.3-GCZMA vide order dated 6th August 2015 was in respect of the cottages in the said property and not the restaurant which is shown to be existing at the spot as per the Commissioner's Report. Pertinently, the revenue record produced by Respondent No.2-Eliano Pereira form-I and XIV in respect of the survey No.213 Sub-division 23/A of village Anjuna at Annexure 'C' to the reply affidavit dated 10th May 2016 shows the property as agricultural property having garden (Bagayat). Even the plan of the said property drawn by DSLR, Government of Goa does not show existence of any structure, much less the Restaurant. Respondent No.2-Eliano Pereira has not produced any material to suggest that any restaurant existed in the said property prior to 1991.
Oxford dictionary of English, 3rd edition gives the meaning of word "cottage" and "house" as follows :
'Cottage : a small house, typically one in the country : a simple house forming part of a farm, used by a worker.
'House' : A building for human habitation, especially one that consists of a ground floor and one or more upper storeys: A building in which people meet for a particular activity:, A firm or institution: A restaurant or inn:
Essentially, therefore, a cottage is a species of house, the dimensions of which are small and it can be a simple house forming part of a farm. Broadly, such house also can be used as a restaurant or inn.
Significantly, what was ordered to be demolished vide direction/order dated 6th August 2015 were all cottages on the said property with no distinction being made as to its user. Nothing existed even going by his own (i.e. Respondent No.2 Eleino Pereira) showing prior to 2004-05 on the said property and the entire property was a garden (Bagayat).
Learned counsel appearing on behalf of GCZMA submitted that it relied upon the report of Dy. Collector dated 8th December 2015, accompanying the letter dated 10 th December 2015 and would be bound by the Commissioner's Report as regards the factum of the execution of the orders of demolition passed by GCZMA.
We had appointed Registrar to act as a Court Commissioner to carry out local investigation upon visit to the site in question vide order dated 18th December 2015. The Court Commissioner filed a Report dated 18th February 2016 upon carrying out the local investigation before us. The report dated 18th February 2016 reveals that local investigation was carried out in presence of Applicant No.1 Kashinath Shetye, Respondent No.1 Jaiprakash Sirsaikar, Mr. Kundlik Khurjuvekar, Deputy Collector, Mapusa and other six local officers on 6th February 2016. The Court Commissioner described the disputed site as follows :
Part-I
The disputed site/property bearing "Survey no.213/23-A of village Anjuna, Bardez Taluka, Mapusa, Goa is having two wooden restaurant sheds with concrete basement upto plinth level which can be seen in Photographs 1 & 3 to 8. It is having Southern and Northern concrete compound walls which can be seen in Photographs 9 to 15. It is divided in two parts i.e. upper (eastern) part and lower (western) part by making South-North hill cutting which can be seen in Photographs 2, 9 and 12 to 14. There are two stare cases in disputed site out of which one is from Northern side of the disputed site and another is at the middle which can be seen in Photographs 9 to 11. The disputed site is situated on the coastal part of Arabian sea and it is also situated within 500 metres from the High Tide Line as well as Arabian sea which can be seen in Photograph 10.
Besides describing what was demolished, the Court Commissioner described the structures and wooden sheds which were not demolished as follows :
Part-II
Two wooden sheds of restaurants having concrete base upto plinth level are not demolished. The furniture of restaurant like chairs, tables and other articles like refrigerator, fans etc. are lying there which can be seen in Photographs 1, 3 to 8 & 16.
South-North hill cutting which has divided the disputed site into two parts i.e. upper part and lower part are still as it is. The stair cases to approach the lower part of the disputed site are not demolished. The said hill cutting, two stair cases and the Southern & Northern compound walls are not demolished which can be seen in Photographs 2 & 9 to 15. The South-North hill cutting is not restored to its original position which can also be seen in those photographs.
The Northern compound wall and adjacent stare case to it in disputed site are not demolished which can be seen in Photograph 11.
The cottages are demolished/removed but the concrete/paka structure upto the plinth level and the flooring of cottages as well as restaurant basement are not demolished/removed which can be seen in Photographs 5, 7 to 13 & 19.
Paka/concrete structure of the Eastern, Western and other compound walls upto the plinth level is not demolished which can be seen in Photographs 2 & 17 to 19.
In the reply dated 10th May 2016 to the Commissioner's report, the Respondent No.2-Eliano Pereira has made an attempt to qualify the observations made by Court Commissioner with a statement that the structures which have been described as concrete base/structures is infact a masonry structure plastered by concrete and not a permanent structure and such structure existed prior to 1991 and no hill cutting was carried out after 1990. The Respondent No.2 also contended that the Court Commissioner has not taken into consideration the scope of demolition order dated 25th August 2015 and has made observations on the premise that everything at the disputed site was supposed to be demolished. Pertinently, demolition order dated 25th August 2015 passed by Respondent No.3 GCZMA directs demolition of illegal construction of cottages/structures located in the said property and restore the land to its original condition without any exception. Perusal of the photographs produced by the Court Commissioner with the said Report betrays real character of the existing structures at the site which appear to be newly made cottages/ structures of permanent nature.
Facts observed by the Court Commissioner, therefore, cannot be brushed aside to say that demolition of all the cottages which even included all structures standing on the said property was complete. The report of the Deputy Collector and S.D.M. Mapusa, Goa dated 10th December 2015 and the accompanying panchnama dated 8th December 2015 Exhibit-VIII to the affidavit dated 15th March, 2016 of the Respondent No.3 is cryptic and makes a bland statement that cottages/structures have been removed by the project proponent Eliano Pereira as per the order of GCZMA dated 25th August 2015 without making specific reference to the said structures seen existing in Court Commissioner's Report. We cannot place any credence on the report of the Deputy Collector which palpably appears to be false as follows :
"It was noticed that the cottages/structures have been removed by opponent i.e. Mr. Eliano Pereira. Your office representative Mr. Fletcher Fernandes, Technical Officer of GCZMA has confirmed that nothing more is required to be removed and satisfied that the aforesaid order is complied in toto. The photocopy of the Panchnama is enclosed herewith".
The Respondent No.2 Elaino Pereira has questioned the maintainability of the present Application on the ground that Applicant No.2 is at liberty to take steps for prosecution under Section 26 of the National Green Tribunal Act, 2010 and therefore, the Respondent No.2 cannot be judged twice. The Applicant is essentially seeking demolition of the structures on the said property which were required to be demolished and land restored as per the order passed by GCZMA. It is certainly not the case of judging the Respondent No.2 twice. The Respondent No.2-Eliano Pereira, further challenged the locus of the Applicants on the ground that he is habitual litigant who files false cases. In the instant case, the Respondent No.2-Eliano Pereira, was expected to remove all structures/cottages constructed without permission of GCZMA on the said property and restore the Bagayat land. The inquiry in the present case has revealed that all the structures on the said property which were constructed without permission of GCZMA have not been demolished and the land has not been restored. Firstly, therefore, it cannot be said that the present case is a false case. The Respondent No.2 is under obligation to remove all such structures on the said property and any individual or representative body has a right to ask for discharge of such obligations in the environmental interest. The Applicant, therefore, cannot be said to be without any locus in the present case
Respondent No.2-Eliano Pereira, further contended that the present case does not pertain to any substantial question relating to environment as envisaged under Section 14 of the National Green Tribunal Act, 2010. Such a plea cannot be raised by the Respondent No.2 as he remains under obligation to remove all structures constructed without permission of GCZMA on the said property. In view of the aforesaid discussion, we pass the following directions.
1) Respondent No.3-GCZMA and Respondent No.4-Deputy Collector, S.D.M. Bardez, Goa shall demolish and remove all structures including the foundations/plinth standing on survey No.213/23-A of village Anjuna, Bardez, Goa and restore the said land as Garden (Bagayat) land.
2) Respondent No.2 Eleino Pereira shall bear the expenses of such removal of structures/plinth etc. on the said property and restoration of the land bearing Survey No.213/23-A of village Anjuna, Bardez, Goa as aforesaid.
3) Issue show cause to Respondent No.2 Eliano Pareira, Respondent No.3-Mr.Pundlik K. Khorjuvekar, Dy. Collector and SDM Mapusa, Respondent No.4 Madhu G. Narvekar, Mamlatdar of Bardez Taluq, Mapusa Goa and Mr. Fletcher Fernandes, Technical Officer, GCZMA, Panaji, as to why prosecution under Section 193 and 219 of the Indian Penal Code, 1860 should not be initiated against them..
4) Notice made returnable on 23rd February, 2017. Application No.125/2015 stands disposed of accordingly. M.A.No. 12/2016 no longer survives and stands disposed of.