Mrs. Linet Nunes W/O Simon Lobo v. Goa Coastal Zone Management Authority

NGT1 Aug 2024IA No. 224/2024 in Review Application No. 5/2024

Case brief

AI extract

What is this about?

The National Green Tribunal (Pune Bench) rejected a Review Application seeking to vary its judgment dismissing an appeal regarding alleged illegal structures in Anjuna. The Bench upheld findings that no structures existed prior to the CRZ notification and refused to amend the impugned demolition order or grant stay. The decision relies on distant map evidence which flatly contradicted the Claimant

What did the court decide?

The review application was rejected and the interim stay application filed therein was also rejected.

Mrs. Linet Nunes W/O Simon Lobo vs Goa Coastal Zone… — Writ and Judicial Review | NGT (2024)

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Item No.1

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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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REVIEW APPLICATION NO.05 OF 2024 (WZ) IN APPEAL NO.48 OF 2016 (WZ) WITH I.A. NO.224/2024 IN APPEAL NO.48/2016 (WZ)

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Mrs. Linet Nunes

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Versus

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Goa Coastal Zone Management Authority & Ors. Respondents

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Date of hearing : 01.08.2024

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CORAM: HON’BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER Appellants : Mr. Shivan Desai, Advocate along with Mr. Shivshankar Swaminathan, Advocate

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ORDER

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This Review Application has been filed seeking review of the judgment and order dated 31.05.2024 passed by this Tribunal in Appeal No.48 of 2016 (WZ) (Mrs. Linet Nunes w/o Simon Lobo Vs. The Goa Coastal Zone Management Authority and seven others).

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It is submitted in this Review Application that while dismissing the aforesaid appeal, this Tribunal, in paragraph no.33, observed as follows:

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“33. A bare perusal of this document (Annexure-F) would show that there are few dotted lines drawn on Survey No.42/10, which do not indicate any structure to be there. Whether the same was plain area or some structure was over there cannot be gathered from this map. Therefore, we cannot extend any benefit to the appellant on the basis of this document.”

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The above quoted paragraph, according to the applicant, is an error

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apparent on the face of the record inasmuch as in the years 1972-75, in

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[NPJ] Page 1 of 8

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the State of Goa, the Authorities under the Goa Land Revenue Code, 1968, conducted land survey in the State of Goa and prepared maps of the survey holdings in order to record the names of the bona fide occupants in their respective properties. In that survey, the existence of an outline of the plinth of structure in the Survey Map prepared and maintained by the Directorate of Settlements and Land Records is indicative of the fact that a structure existed in the concerned property at the time of the Land Survey conducted in the years 1972-75. On a conjoint reading of provisions of Goa Land Revenue Code, 1968 and the Land Records maintained thereunder i.e. Form I and XIV and the Survey Map of Survey No.42/10 of village Anjuna would show the existence of plinth dating back to 1970s. Consequently, the existence of the structure prior to 19.02.1991 can be presumed in the subject property making the same an authorized structure in terms of the CRZ Notification 1991. 4. It is submitted by the appellant/applicant in this Review Application that while assessing the Inquiry Committee Report and dismissing same, this Tribunal, in paragraph No.39, has observed as follows:

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“ 39. After having gone through the said report, it is not clear as to what this structure of 242 sq.mtrs was and how the same was converted into such a big restaurant. We are of the view that even if there was some old structure of 242 sq.mtrs, the current photographs at pages 262 of the paper-book would indicate that any structure which might have been existed prior to 1991 would certainly have required substantial modification or repair work since then to give the same shape which is shown in the photograph and it is admitted fact that the learned counsel for the appellant could not show a single permission for modification or repair of structure, which earlier existed, if at all it existed. Hence this report is not worthy to be relied upon.”

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[NPJ] Page 2 of 8

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Having cited the above paragraph 39 from our judgment, it is mentioned that it also suffers from an error apparent on the face of the record inasmuch as once an outline of a structure is shown in DSLR Survey Map which is a document prepared under the relevant provisions of Goa Land Revenue Code, 1968, the existence of the said structure should have been treated by this Tribunal to be there dating back to 1970s. Further it is mentioned in the application that in paragraph 39 of the judgment of this Tribunal, while correctly presuming the existence of a structure of 242 sq.mtrs, this Tribunal has refused to accept the Inquiry Committee Report merely on the assumption that the structure as seen today is not the structure as it existed prior to 19.02.1991 for possibly having undergone modifications/repairs and since no permissions/license were placed on record, the same was found to be illegal. In this regard, it is further mentioned in the application that firstly the Inquiry Committee Report prepared by the Committee constituted in pursuance of orders passed by this Tribunal could not be rejected on assumption that the structure as seen today may not be the same as it existed earlier and secondly mere absence of modification/repair permission does not disqualify the existence of 242 sq.mtrs plinth prior to 19.02.1991 especially when the same is reflecting in the DSLR Survey Map and therefore, this should also be treated to be an error on the face of record.

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It is mentioned in this Review Application that the complaint, site inspection notice and the proceedings before the GCZMA have been in respect of Survey No.42/10 of Anjuna. However, demolition order directs demolition of illegal structure standing in Survey No.42/10, “having further extended in the adjacent plots/properties bearing Survey No.42/9, 42/11, 45/19 and 45/41 of Anjuna”. The applicant had clarified that Survey Nos.42/9 and 42/11 does not belong to her and that

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[NPJ] Page 3 of 8

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the Survey Nos.45/19 and 45/41 of Anjuna were more than 300 kms away (learned counsel submits that it is a typographical error and it should be 300 mtrs.).

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In this regard, it is further mentioned that neither the show cause notices nor the inspection report dated 16.07.2016 refer to Curlies being extended to 45/19 and 45/41 and it appears that mechanically it is stated that Curlies restaurant extends to 45/19 and 45/41. Therefore, the structures standing on these two survey numbers could not have been linked to the Curlies restaurant. The endeavor of the applicant was to show that the said structures were independent to Curlies restaurant in order to ensure that the impugned order should not be misused to target structures which are not linked to Curlies restaurant. Thereafter, it is mentioned in the application that written submissions which were submitted by the appellant to the following effect were not considered:

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“……

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v. In para 8 of the Judgment and order dated 06/09/2022 passed by the Hon’ble NGT in appeal no.48/2016 a statement was recorded on behalf of the Appellant that any structure in sy.no.42/10 belongs to the Appellant and not the other structures. In the Order dated 09/09/2022. Hon’ble Apex Court has recorded the statement on behalf of the Appellant that sy.no.42/10 belongs to the Appellant and that the Appellant is not concerned with the other survey numbers including 45/19 and 45/41. It is in that context and background that the above appeal is argued and the Appeal is limited to the existence of structure in Sy.No.42/10. Respondent no.1 has made a submission that his structure in sy.no.42/9 and 42/11 which were adjoining to sy.no.42/10 have already been demolished. However, the limited aspect that the Appellant seeks to place before the Tribunal is that finding that Curlies restaurant extends to sy.no.45/19 and 45/41 is completely without basis which grounds are raised in the Appeal memo (n) and (o). Neither the show cause notices nor the inspection report dated 16/07/2016

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[NPJ] Page 4 of 8

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refers to Curlies being extended to 45/19 and 45/41 and it appears that mechanically it is stated that Curlies restau7rant extends to 45/19 and 45/41. The limited endeavor is to point out that structures in 45/19 and 45/41 (which is more than 300 mts away and not even remotely contiguous) cannot be linked to Curlies restaurant belonging to the Appellant as stated in the demolition order. The structures in the said property are independent to Curlies restaurant is all that the Appellant wants to point out in this appeal and should not be linked to Curlies Restaurant as stated in the demolition order in terms of the impugned order which needs to be clarified by this Court so that the impugned order is not misused to target structures which are not linked to Curlies restaurant and/or are not extensions of Curlies restaurant and belonging to other owners. Only in the event there is any extension of Curlies Restaurant two survey numbers i.e. Sy.Nos.45/19 and 45/41 then obviously impugned order is liable to be executed against structures which are extension of Curlies Restaurant in the said survey numbers.”

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During argument, the learned counsel for the appellant/applicant read out paragraph no.33 of the judgment, review of which is sought, which has been quoted hereinabove in paragraph no.2.

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We are of the view that this Tribunal has rendered clear finding that a few dotted lines drawn on Survey No.42/10 would not indicate any structure to be there and because of that only, no benefit could be extended to the appellant and we stand by that conclusion drawn by us. 10. Thereafter, our attention is drawn to paragraph no.34 of the judgment, which was read out in whole by the learned counsel for the appellant, which is to the following effect:

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“ 34. Next our attention was drawn by the learned counsel for the appellant to Annexure-C, annexed at page 58 of the paper-book, which, according to him, are receipts issued by the Village Panchayat, Anjuna in favour of the mother of the appellant - Aquelina Nunes, wherein details i.e. Receipt Book No.572, Receipt No.635, amount paid is of Rs.12/-, pertaining to house/light tax,

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[NPJ] Page 5 of 8

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issued on 15.01.1995, are given. This receipt would not give any benefit to the appellant because this of the year 1995 and not prior to 1991. Beneath the above receipt, there is another receipt issued in name of the mother of the appellant, details of which are receipt book No.491 (receipt number is not legible), pertaining to house tax of house No.774(2) and date of issue of this receipt is 07.01.1991. Based on this, it was argued that this receipt is of the year 1991, which would show that the appellant’s mother was owner of the said Survey No.42/10. We find from the reply-affidavit dated 28.09.2016 filed by respondent No.8-Village Panchayat, Anjuna, wherein in paragraph No.6 (c ), it is recorded that the house tax receipt filed by the appellant pertained to house No.774/2. However, the aforesaid house number is of a house recorded in the name of Aquelina Nunes, which is a residential house at a distance of about 300 mtrs away from the property bearing survey No.42/10 of village Anjuna, wherein illegal structure has been constructed. The said house is standing on Survey No.45/19 of village Anjuna, which is actually the matrimonial house of Linet Nunes. A copy of the house tax receipt is annexed as Annexure-D“.

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Having cited above paragraph, it is urged by the learned counsel that Survey no.45/19 is not a part of Curlies restaurant as the same is 300 mtrs away therefrom. Therefore, its demolition should not have been upheld by this Tribunal. In this regard, we are of the view that the finding rendered does not require any change because any person aggrieved by the demolition order should approach this Tribunal in case the same does not belong to Curlies restaurant.

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Thereafter, learned counsel for the appellant/applicant read out paragraph no.39 of the judgment, which is quoted hereinabove by us in paragraph no.4. The main objection in this finding rendered by us is stated to be that this Tribunal has observed that even if there was some old structure of 242 sq.mtrs, the current photographs at pages 262 of the paper-book would indicate that any structure which might have existed

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[NPJ] Page 6 of 8

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prior to 1991 would certainly have required substantial modification or repair work. This observation, according to the learned counsel for the appellant is an error apparent on the face of the record because there did exist structure and the same was established by the DSLR survey Map in which the same was shown by dotted lines, which has been wrongly discarded. We are of the view that the finding rendered by us in this regard does not require any change.

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Thereafter, the learned counsel for the appellant read out paragraph no.51 of our judgment, which is as follows:

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“ 51. Our attention is drawn by the learned counsel for respondent No.1 to pages 155 and 156 of the paper-book, which is a map, which is a part and parcel of technical report of the project prepared by Remote Sensing Instruments, Hyderabad, which is Annexure-R7/3 with the reply of respondent No.7 at page 445. We find the same map along with the index and we find that this map clearly shows that there did not exist any structure prior to 1991 in Survey No.42/10. Therefore, the version of the appellant stands belied by this map.”

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We are of the view that we have relied upon a technical report of the project prepared by Remote Sensing Instruments, Hyderabad, which did not show any existence of structure prior to 1991 in Survey No.42/10 and that was treated to be conclusive proof of the fact that there did not exist any structure prior to 1991 and hence, the appeal was dismissed.

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Considering the above, we are of the view that no variation is required to be there in the judgment, review of which is sought by the appellant in the present application.

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We do not find force in the Review Application. Accordingly, it is rejected.

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[NPJ] Page 7 of 8

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In view of rejection of Review Application, I.A. No.224/2024 (WZ) filed therein, seeking stay to the operation and implementation of Demolition Order dated 21.07.2016 passed by respondent No.1-GCZMA, and stay to the operation and implementation of the order dated 31.05.2024 under review, does not survive and hence, it is rejected.

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Dinesh Kumar Singh, JM

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Dr. Vijay Kulkarni, EM

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August 01, 2024 REVIEW APPLICATION NO.05/2024(WZ) npj

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[NPJ] Page 8 of 8

Mrs. Linet Nunes W/O Simon Lobo v. Goa Coastal Zone Management Authority

Case brief

What is this about?

What did the court decide?

Mrs. Linet Nunes W/O Simon Lobo v. Goa Coastal Zone Management Authority

Case brief

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What did the court decide?

What the court decided

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