Dismissed

Francisco Jose v. the Goa Coastal Zone Management Authority through Its Member Secretary

NGT8 Feb 2024Appeal No. 5/2019

Case brief

AI extract

What is this about?

This appeal challenged an order by the Goa Coastal Zone Management Authority quashing a demolition order against a 25 sq.m. structure constructed prior to 1991 in Goa's CRZ. The NGT upheld the impugned order, affirming the structure's legitimacy and noting provisions for regularization under the CRZ Notification, 2011.

What did the court decide?

The appeal was dismissed and the order dated 22.10.2018 quashing the demolition order was upheld.

Francisco Jose vs the Goa Coastal Zone… — Constitutional and Fundamental Rights | NGT (2024)

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Item No.2

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(Pune Bench)

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BEFORE THE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH, PUNE

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[Through Physical Hearing (With Hybrid Option)]

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APPEAL NO.05 OF 2019 (WZ)

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Francisco Jose Lisboa & Ors. …. Appellants Versus GCZMA & Anr. .…Respondents

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Date of hearing: 08.02.2024

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CORAM: HON’BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER

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Appellants : Mr. Vaibhav Amonkar, Advocate

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Respondents : Ms. Supriya Dangare, Advocate for R-1 GCZMA Mr. Aagney Sail, Advocate for R-2 to R-4

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ORDER

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This appeal has been filed against the order dated 22.10.2018 passed by respondent No.1 – GCZMA, thereby quashing the demolition order dated 28.03.2018 and discharging the proceedings against structure/house with an area of 25 sq.mtrs existing in Survey No.25/6 (part) of village Assagao, Bardez-Goa, which was constructed prior to 1991 as decided by the Authority in their 186^th meeting held on 12.10.2018.

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It would be appropriate for us to take facts from the impugned order itself wherein it is recorded that pursuant to receipt of the complaint made by Rajan Ghate dated 12.01.2015, who is said to be the Power of Attorney holder of the appellants in the present appeal, which is admitted by the learned counsel for respondent Nos.2, 3 and 4, complaint

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dated 07.03.2016 from Jose Lopes (not a party to the present proceeding) and complaint dated 21.03.2016 made by Kashinath Shetye – respondent No.5 and also pursuant to the order dated 10.11.2017 passed by NGT, Pune in O.A. No.60/2017, respondent No.1 – GCZMA passed demolition order dated 28.03.2018 against respondent No.2-Sagardeep Sirsaikar, respondent No.3-Jaiprakash Sirsaikar and respondent No.4-Audumber Sirsaikar for illegal construction of structure in Survey No.25/6 of Assagao, Badem, Bardez-Goa. The said order was challenged before the Hon’ble High Court of Bombay at Goa in Writ Petition No.476 of 2018, which was later-on withdrawn with leave to approach this Tribunal. Two appeals namely Appeal No.61/2018 and 62/2018 were filed before NGT, New Delhi, wherein following order was passed on 10.08.2018 :

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“3. The matter was disposed of on 18.11.2015, giving liberty to the complainant move the Goa Coastal Zone Management Authority. 4. The said authority thereafter passed the impugned order. It has been observed in the order that the appellants failed to remain present to justify that the construction was valid.

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5. The case of the appellants is that they never received notice to appear and they could not present their view points. This is a matter which can be verified by the authority itself. The appellants can appear before the authority and present their view point.

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6. If the authority is satisfied that the appellant did not receive any notice, the said authority may give an opportunity to the appellants to present their view point and pass appropriate orders in accordance with law.

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7. To enable the appellants to approach the concerned authority, we direct that status quo be maintained for a period of four weeks from today.”

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Pursuant to the above order, the matter was placed before the GCZMA in its 183^rd meeting dated 31.08.2018 for deliberation upon the order dated 10.08.2018 passed by this Tribunal in Appeals No.61/2018

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and 62/2018 and subsequent representations made by respondent Nos.2, 3 and 4 and it was decided by the Authority that as per order dated 10.11.2017 passed by the NGT in Original Application No.60/2017 (WZ) and Original Application No.61/2018, the service of show-cause notice was waived and parties were directed to appear before GCZMA on 14.11.2017 and place on record all such relevant material in support of their respective cases. The Authority was only conferred the duty to conduct inquiry in the matter in accordance with law and accordingly GCZMA had convened its 163^rd meeting on 14.11.2017 to grant personal hearing as per order dated 10.11.2017 passed by the NGT wherein respondent Nos.2 to 4 remained absent while the appellant (respondent No.5) remained present. Thereafter, the GCZMA convened 164^th meeting on 29.11.2017 in which a final decision was taken to issue an order of demolition. The Authority was of the view that respondent Nos.2 to 4 had been given fair opportunity to appear before the Authority. However, they failed to appear before the Authority and that there was no legal requirement on the part of the Authority to issue a notice of personal hearing to any of the parties as the same was waived by the parties and consent was recorded in the order dated 10.11.2017 passed by NGT. Therefore, the Authority decided to uphold its order of demolition dated 28.03.2018 as it had followed due procedure in terms of the order of NGT dated 10.11.2017.

¶23

In terms of the decision taken by GCZMA in the meeting held on 31.08.2018, an order dated 20.09.2018 was issued to respondent Nos.2 to 4 confirming the demolition order earlier issued by the GCZMA. Further it is mentioned in this order that, vide order dated 08.10.2018, respondent No.2 – Sagardeep Sirsaikar forwarded a copy of the order dated 04.10.2018 passed in appeal No.231/2018 filed against order

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dated 20.09.2018 issued by GCZMA (annexed at page 276 of the paperbook). Further it is mentioned that the NGT, vide order dated 01.10.2018 in the aforementioned appeal, has inter alia directed as follows :

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“1. It is stated that the present appeal is identical to the matter dealt with by this Tribunal vide order dated 01.10.2018 in Appeal No.195/2018 in the matter of Sagardeep Sirsaikar & Ors. Vs. Goa Coastal Zone Management Authority & Ors.

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2. In view of above, we direct that the present appeal will also be covered by the said order to the extent applicable and the appellant may appear before the Goa Coastal Zone Management Authority (GCZMA) for the purpose on 09.10.2018 at 11.00 a.m.

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3. The GCZMA may send a report to this Tribunal by email at [email protected] on or before 16.10.2018.

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4. Put up the matter on 23^rd October, 2018 alongwith Appeal No.195/2018.

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5. There will be also an interim order of status quo till the next date in same terms.”

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Further it is mentioned that thereafter the matter was placed before GCZMA in its 186^th meeting held on 12.10.2018 and personal hearing was given to the parties. Respondent Nos.2 to 4 remained present along their Advocate and the complainant Kashinath Shetye (present respondent No.5) also remained present. The respondent relied upon documents annexed to their replies earlier submitted to the Authority and submitted that the structure was a mundkarial dwelling house. It was further stated by the respondent that the said structure is shown in Survey Plan and is of the period prior to 1991, which is having an area 25 sq.mtrs. Name of the grandmother of the respondent figured in other rights column in the Form I and XIV. The CRZ Notification was not applicable as the structure was of the period prior to 1991. The respondent relied upon the order dated 16.08.2011 of the Hon’ble High

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Court of Bombay at Goa in Civil Revision Application No.135/2001, the application for regularization dated 28.08.2001 to Village Panchayat, Assagao by Audumber Sirsaikar – respondent No.4, Panchayat resolution dated 28.05.2003. The complainant also filed brief written arguments submitting that the respondents were not the owners of the property and only encroachers; Kesari Gunaji Sirsaikar was not related to respondents; the respondents were not legal heirs of Kesari Gunaji Sirsaikar; property bearing survey No.25/6 belonged to one Joseph Francis POA for Rajan Ghate. The complainant also relied upon letter dated 06.02.2015 and further stated that the respondents had also encroached property in which they were running a restaurant. The fisherman cannot use the house for commercial hotel.

¶34

Based on the above hearing and perusal of the documents, the Authority observed that the permission granted to any proponent/applicant by GCZMA does not confer nor confirm the title/ownership and said permission is only granted in terms of provisions of CRZ Notification, 2011. It is a duty cast upon other competent authorities to determine the title/ownership of land in accordance with law. Therefore, the Authority confined itself with limited issue to assess the legality and existence of structure in terms of CRZ Notification, 2011 and noted that earlier, Village Panchayat of Assagaon, vide letter dated 10.12.2008, had submitted a complaint for regularization of house of respondent No. 4- Audumbar Sirsaikar in survey no. 25/6 (part). The said matter was placed in GCZMA meeting dated 20.01.2009 wherein the Authority observed that the structure was old and was repaired/reconstructed, which was verified by a member of Authority by conducting site inspection on 14.01.2009. It was also noted that the structure was shown in old survey plan. The Authority decided

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to grant ex post facto permission to undertake repairs/renovation of the existing dwelling unit in Survey No.25/6 (Part), Assagao Village, Bardez. Thereafter, pursuant to representation from Krishna Savla Ghate, Power of Attorney holder of appellant Nos.1 to 3, who filed objection and sought revocation of said permission. Hence, the matter was considered in GCZMA’s meeting dated 09.08.2012, wherein the earlier permission for repairs/renovation was re-confirmed by the GCZMA by order dated 17.12.2012, which is annexed at pages 218 and 219 of the paper-book. It would be appropriate for us to reproduce relevant part of order dated 17.12.2012, which reads as follows:

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“Now, therefore, it has been decided to reinstate the approval as much as the ex-post facto permission for repairs/renovation of structure in question is concerned. It is for the TCP and Village Panchayat authority to take action in accordance to law and if they find or came to conclusion that if the structure/dwelling unit is not in accordance with the survey plan details or has been illegally constructed/unauthorizedly existing as per the Goa Panchayat Raj Actor Town & Country Planning Act and related provisions of law. Further, Shri Audumber Sirsaikar is directed to produce all documents before Village Panchayat and Town & Country Planning Authority in the matter to get this grievance regarding existence of the structure redressed. ”

¶38

The earlier order of GCZMA dated 17.12.2012 was based on records and on report of the Deputy Collector and S.D.O., Bardez dated 17.12.2012 and it was concluded that a structure/house within the area of 25 sq.mtrs was existing in Survey No.25/6 (Part), Village Assago, Bardez-Goa prior to 1991. Further it is recorded in this order that pursuant to the representation from one Rajan Savlo Ghate, Power of Attorney holder for appellant Nos.1 to 3, that the GCZMA, vide letter dated 06.02.2015, informed Audumber Sirsaikar approval/permission

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issued by the authority had expired and directed not to carry out any work on site including further repair and renovation to house in Survey No.25/6 (part) of village Assagao, Bardez-Goa without permission from the authority.

¶41

The authority has concluded that taking into consideration the above facts, it is beyond doubt that the structure/house within 25 sq.mtrs. was existing in Survey No.25/6 (part), village Assagao, BardezGoa prior to 1991, which is confirmed by the survey plan of DSLR and in view of that, the authority has decided to quash its demolition order dated 20.09.2018 and discharge the proceedings against the structure in question.

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It is also recorded in the order by the authority that it has noted that only question which remains to be ascertained now is whether any illegal extensions are carried out beyond said area of 25 sq.mtrs. Therefore, GCZMA decided to direct the Town and Country Planning Department and Village Panchayat of Assagao to check the area of the structure/house in Survey No.25/6 (part), village Assagao, Bardez-Goa and submit a report to ascertain if any illegal extensions are carried out to the structure/house in Survey No.25/6 (part), village Assagao, BardezGoa i.e. beyond the said area of 25 sq.mtrs. without necessary permissions and the matter will be decided as per law based on the report from the Town and Country Planning Department and Village Panchayat of Assagaon. With these observations, the authority quashed the demolition order dated 28.03.2018 by the impugned order.

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From the side of respondent Nos.2 to 4, in addition to drawing our attention to the relevant provisions of CRZ Notification, 2011, reply dated 24.08.2023 has been filed, opposing the reliefs sought in this appeal and

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raising preliminary objections as to maintainability of appeal, appeal is barred by the principle of res judicata and that the appeal is barred by limitation.

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We have heard the learned counsel for the appellants, learned counsel for respondent No.1 - GCZMA and learned counsel for respondent Nos.2 to 4. A pointed query was made to the learned counsel for the appellants as to on which ground he is assailing this order. The chief ground which he has relied upon is that in Para 28 sub-clause (h), one of the grounds set up is that respondent No.1 – GCZMA, in the year 2009, had granted an ex post facto approval to respondent No.4 Audumber Sirsaikar without there being any power for the same, which demonstrates its bias towards respondent Nos.2 to 4. Further it is alleged that several documents have been manipulated to seek regularization of the illegal construction carried out by them. During argument, learned counsel has drawn our attention to page 35 of the paper-book, wherein a sketch of the house regarding which demolition order was earlier passed and has now been quashed by the impugned order. Our attention was also drawn by him to page 30 of the paperbook, which is a letter 15.11.1996, written by the Town Planner addressed to the Sarpanch, Village Panchayat, Assagao, Bardez-Goa related to the subject “repair of room in Survey No.25/6 of village Assagao.” In this, it is recorded that inspection was made on 13.11.1996 along with the Sarpanch and it was noticed that the structure made was of wooden poles, palm leaves, etc. at the site and that the property was close to the High Tide Line and was affected by CRZ and without approval/ permission of G.S.C.C.E. (earlier body of GCZMA). Thereafter, our attention was drawn to page 33 of the paper-book, which is a letter dated 11.06.1998, written by Senior Town Planner to the Sarpanch,

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Village Panchayat, Assagaon, Bardez-Goa pertaining to a complaint regarding illegal construction from Krishna Ghate, Power of Attorney holder of appellant Nos.1 to 3, wherein it is recorded that the site was inspected by the officials of the Town Planning Department and it was observed that a pucca construction had been done with laterite stone masonry which was found to be of size 4.10 x 5.60 mtrs = 22.96 M2, cement plastered. Having drawn our attention to this letter, it is argued by the learned counsel for the appellants that this document would reveal that during the years 1996 and 1998, pucca construction was there as reported at the site in question as there was no structure, there being wooden poles, palm leaves, etc. Therefore, this construction being of subsequent period could have been made after seeking prior permission from GCZMA, which is not done in this case.

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Thereafter, when we made a query to the learned counsel for the appellants as to how he has stated that there is no provision for regularization of a structure in CRZ area, no specific provision could be shown by him, but learned counsel for respondent Nos.2 to 4 interjected and pointed the relevant provisions. He has drawn our attention to Para 6 sub-clause (d) of CRZ Notification, 2011, which provides as follows:

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“6. Enforcement of the CRZ Notification, 2011 –

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(d) The dwelling units of the traditional coastal communities [especially]¹ fisherfolk, tribals as were permissible under the provisions of the CRZ notification, 1991, but which have not obtained formal approval from concerned authorities under the aforesaid notification shall be considered by the respective Union territory CZMAs and the dwelling units shall be regularized subject to the following condition, namely –

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(i) these are not used for any commercial activity.

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(ii) these are not sold or transferred to non-traditional coastal community.”

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Thereafter, learned counsel for respondent Nos.2 to 4 has drawn our attention to Para 3(i)(e) of CRZ Notification, 2011, which reads as follows:

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“ 3. Prohibited activities within CRZ, - The following are declared as prohibited activities within the CRZ,-

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(i) Setting up of new industries and expansion of existing industries except, -

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(e) reconstruction, repair works of dwelling units of local communities including fishers in accordance with local town and country planning regulations.”

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Thereafter, he has drawn our attention to Para 8(i)(III)(A)(ii) of the said Notification, which is as under:

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“ No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities; Construction/reconstruction of dwelling units of traditional coastal communities (especially) fisherfolk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal communities (especially) fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to the NCZMA for approval by MoEF. ”

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Considering the above provisions, it is apparent that if construction has been done by a person belonging to a traditional coastal community, the same can be got regularized under the aforesaid provisions. IN the case in hand, though GCZMA – respondent No.1 has recorded in the impugned order that on the basis of evidence, the structure was found of the period prior to 1991, but even if that would have been of a

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subsequent period, there was provision for regularization of the same. Therefore, we do not agree with the arguments made by the learned counsel for the appellants that there is no such provision for regularization of the construction made in CRZ area.

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Nothing could be shown by the learned counsel for the appellants which would convince us that the impugned order suffers from infirmity. We uphold the same.

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In the result, the appeal is dismissed.

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No order as to costs.

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Dinesh Kumar Singh, JM

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Dr. Vijay Kulkarni, EM

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February 8, 2024 APPEAL NO.05/2019 (WZ) npj

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Francisco Jose v. the Goa Coastal Zone Management Authority through Its Member Secretary

Case brief

What is this about?

What did the court decide?

Francisco Jose v. the Goa Coastal Zone Management Authority through Its Member Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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