Shri Kamalkant Y. Redkar And Ors vs State Of Goa And Ors

The present Application has been filed under Section 14, 15, 16 and 17 read with section 18 of National Green Tribunal Act, 2010, mainly challenging the permission granted by the Goa Coastal Zone Management Authority (GCZMA) dated 14th December 2012 for the reconstruction of the existing house in Survey No.362/11 of village Anjuna, Taluq Bardez-Goa and subsequent letter of GCZMA dated 30th July 2014 on the subject. The present Application is filed on 11th November, 2014.

In brief, the case of the Applicants is that Respondent No.5 whose property Survey No.362/7-A and 362/11 which fall within No Development Zone (NDZ) under CRZ-III, being within 100 mtrs. High Tide Line (HTL) and therefore, the Respondent No.5 cannot carry lawfully out any new construction in either survey numbers. The Applicants allege that in order to facilitate the new construction, the Respondents have obtained the permission for amalgamation of these two (2) Survey numbers by mis-representation and circumventing the procedure, and further used this amalgamation as an alibi (trick) for securing permissions from other authorities. The Applicants submit that though the existing structure is of prior to 1991, the re-construction and more particularly, reconstruction by changing the plinth location is not permissible under the CRZ Notification. The GCZMA initially granted NOC for such re-construction on 14th December 2012 with certain terms and conditions as per CRZ notification 2011. Thereafter, the Respondents approached GCZMA again on 26th May, 2014 stating that the DC Regulations require Respondents to keep certain setback from the existing adjoining road and for that purpose, the location of the proposed house is to be shifted to southward. The Applicants allege that this representation was considered by the Member Secretary of the GCZMA who issued a communication dated 30th July 2014 which is purported to be a NOC. The Applicants allege that this particular communication of 30th July 2014 is issued by the Member Secretary of the GCZMA without any appraisal and approval by the GCZMA authority and without any specific plan or drawing or any such documents required for such appraisal. The Applicants allege that in view of the non consideration of such amendment or change in the original permission which is not considered and approved by GCZMA, the communication dated 30th July 2014 is non-est in the eyes of Law.

In short, besides various contentions on the merits, particularly that of legality of shifting of the plinth within the said plot, the preliminary contention of the Applicants is that the communication dated 30th July 2014 which is issued by the Member Secretary is without any authority of the GCZMA and without any delegation of the powers.

In view of this preliminary contention, we refer to the affidavit filed by Respondent No.2 wherein such contention of the Applicants raised in para 20 of the Application has been dealt by the Member Secretary of the GCZMA in para 13 of his reply affidavit which is reproduced below :

With reference to paragraph 20 of the Application, it is stated that thereafter, on 26-5-2014 received another Application for NOC for reconstruction of the existing House in Survey No.362/11 of village Anjuna, Bardez-Goa, wherein it is stated that pursuant to the NOC issued by the Respondent No.2, submitted the plans before the Respondent No.3 for clearance under the Town & Country Planning Act. It is further stated that as per the prevailing TCP Regulations required to keep proper setback and as such, instead to reconstruct the House by maintaining proper setback to the road and for this purpose, the location of the proposed House is shifted to southward and requested to grant approval for the same. Accordingly, vide letter bearing No. GCZMA/N/12-13/53/866 dated 30th July 2013, it was informed that the reconstruction of the existing authorised structure shall not exceed Floor Space Index, existing plinth area and existing density, etc. and further required to follow the existing planning norms, laws etc. and the Coastal Regulation Zone Notification, 2011 as amended.

The reply Affidavit do not contradict such an allegation by the Applicants and merely mentions the steps taken after request by the Respondents was received on 26th May 2014. It is a well settled legal position that unless specifically countered or denied, the grounds and the allegations made in the Application are deemed to be accepted. We have further referred to the documents produced by the Applicants obtained under the Right to Information Act (RTI) from the GCZMA which indicate that (page 111) that the communication dated 26th May 2014 received from Shri Pritidas Sawant was placed before the Member Secretary with a draft letter and the same was approved by the Member Secretary on 21st July 2014 and fair copies were signed on 25th July 2014. The trail of the events do not show any appraisal either technical or legal, of the submissions of Shri Pritidas Sawant and it is also observed that there are no documents attached to such a request of the Respondents dated 26th May 2014 such as communication from DCP Department mandating such a setback, plans for shifting of the plinth, plans and reconstruction details including existing and proposed plinth area etc. The said request of the Respondents seems to be not placed before the GCZMA authority for consideration. In view of the above, we are of the opinion that the communication of the GCZMA dated 30th July 2014 is issued without any delegation of the authority or any approval by the GCZMA after necessary appraisal.

Respondent-5 has raised preliminary objections including limitation in view of section 16 of NGT Act, jurisdiction of Tribunal as far as amalgamation order, locus standi so on and so forth. Now coming to the submissions of the Respondent, it is observed that the proposed construction in question has not been approved so far by the Respondent No.4 i.e. Village Panchyat Anjuna-Caisua and the Respondent submitted that on account of non-issuance of construction licence, there is no construction activity of what-so-ever nature, commenced by him in pursuance of the CRZ approval. The Respondent is residing in the said existing house and further states that he has not carried out any repair/maintenance work requiring permission in the said house. In other words, presently the Respondent No.5 has not carried out any reconstruction/modification of the existing structure though the same has been granted NOC by the GCZMA.

In view of these peculiar facts of the case, we deem it proper to hold that the communication of the Member Secretary of GCZMA dated 30th July 2014 is issued without the necessary approval of the GCZMA authority and therefore, we think it appropriate to remand back the matter to GCZMA for re-consideration of the request of the Respondent No.5 on its own merits without any prejudice. The communication of GCZMA dated 30.7.2014 is kept in abeyance till such time. Respondent-5 is at liberty to file any additional documents which are required for such consideration by GCZMA within two (2) weeks and GCZMA shall expeditiously take decision within four (4) weeks. We expect the GCZMA to expedite the decision making process by considering all the relevant facts and provisions of CRZ notification, and pass a reasoned speaking order.

We make it clear that we have not dealt on any legal issue in the present Application and all the issues are kept open.

The Application is disposed of. No costs.