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Wednesday, October 12, 2016

Section 14(3) of the National Green Tribunal Act, 2010 complaining about degradation of environment on account of unauthorized construction on plot of land falling within CRZ(III)(No Development Zone - in short NDZ).=

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL DIARY NO. 26024 OF  2016



Anil Hoble
…..Appellant(s)

                             Vs.

Kashinath Jairam Shetye and Ors.               ……Respondent(s)



                               J U D G M E N T

A.M.KHANWILKAR, J.

      Delay condoned.

2.    This appeal arises from the  final judgment and order  passed  by  the
National Green Tribunal (Western Zone) Bench, Pune dated 29th May,  2015  in
Application No. 51/2014 and dated 14th December, 2015 in M.A.  No.  180/2015
(WZ) and Review Application No. 15/2015(WZ).

3.    Respondent Nos. 1-4 had  filed  an  application  before  the  Tribunal
under Section 14(1) read with Section 14(3) of the National  Green  Tribunal
Act, 2010  complaining  about  degradation  of  environment  on  account  of
unauthorized  construction  on  plot  of  land  falling  within  CRZ(III)(No
Development Zone - in short NDZ).

4.           According to the said respondents  (original  applicants),  the
appellant (original respondent No.3) was responsible for construction  of  a
commercial building on plot of land bearing Chalta  No.1/PTS  No.10,  Panjim
City and Survey No.65/1-A  Village  Morombio  Grande  in  Merces  Panchayat,
without obtaining necessary permission from the concerned Authorities.  That
construction is detrimental to the coastal ecosystem  and  river  ecosystem;
and is also likely to cause pollution of river water due to  the  commercial
activities of the Bar and Restaurant.  It was  alleged  that  the  appellant
exerted political influence to facilitate construction of  the  unauthorized
structure on the said plot.

5.           The  appellant  opposed  the  said   application   by   raising
preliminary objections.  Firstly,  that  the  subject  application  was  not
maintainable -  as remedy of appeal under Section 16  against  the  decision
of the Authority could be preferred.  Secondly, the  applicants  had  failed
to comply with the procedure prescribed under Rule 13 of the National  Green
Tribunal (Practices and Procedure) Rules, 2011.   Thirdly,  the  application
was barred by limitation - as the cause of action had arisen soon after  the
construction work was commenced in the year 2011. The application,  however,
was not filed within 6 months  therefrom.   Further,  a  writ  petition  for
similar challenge was filed  before  the  High  Court  and  has  since  been
withdrawn.  No liberty has been given by the High Court  to  the  applicants
to pursue the same cause of action. On merits,  it  was  asserted  that  the
structure was in existence prior to 19th February, 1991 when the CRZ  Policy
came into force.  It was used  as  a  garage  at  the  relevant  time.   The
appellant after purchasing the plot and the structure standing thereon  vide
registered sale deed dated 3rd August, 1992, initially  used  it  for  motor
garage and allied activity.  The same structure after repair and  renovation
was used as Restaurant and Bar. In substance, the  stand  of  the  appellant
was that since the structure was in existence prior to 19th February,  1991,
the change of user after taking  permission  of  the  concerned  authorities
would  not  make  the  same  unauthorized.   The  appellant  had  taken  due
permission of the competent Authority for re-roofing and re-flooring of  the
structure.  It was not a case of construction of a new structure within  the
No Development Zone (NDZ) as is contended.

6.          The Tribunal after analyzing the documentary evidence  including
the survey reports brought on record by the parties, negatived the  plea  of
the appellant that the structure as it exists  at  present  was  constructed
prior to 19th February, 1991.  The Tribunal recorded  that  finding  on  the
basis of the contents of the registered Sale Deed  dated  3rd  August,  1992
executed in favour of the appellant by the original owner of the  plot,  the
House Property Revenue Records, Settlement of  Land  Records,  No  Objection
Certificate given by the Panchayat, Inspection Report dated 2nd  May,  2012,
and also the contents  of  the  affidavit  filed  by  the  appellants.   The
Tribunal held that the structure as existed prior to  19th  February,  1991,
on plot of land bearing Survey No. 65/1-A or in Survey No.83/2-A of  Village
Morombio Grande in Merces Panchayat, falling within 100 metres distance  (in
CRZ III area), was a small structure at the corner of the said plot and  was
used as a garage.  The Tribunal then relied on  the  decision  of  the  High
Court of Bombay in  the  case  of  Goa  Foundation  vs.   The  Panchayat  of
Condolim & The Panchayat of Calangut[1], in which directions were issued  to
the State Authorities to take action against  such  unauthorized  structures
and constructions put up on the land falling within  CRZ-III  area  in  Goa,
village or town-wise after 19th February, 1991; and further that  permission
can be granted “only” for repair and renovation of  the  existing  “dwelling
units” in such areas.  The Tribunal following that  decision  observed  that
the  structure  other  than  the  original  structure  as  existed  on  19th
February, 1991, standing on land Survey No. 65/1-A or  in  Survey  No.83/2-A
of Village Morombio Grande in Merces Panchayat at South  Goa  be  demolished
forthwith  after  following  due  process.   The  directions  given  by  the
Tribunal read thus :-

“a.   All the  structures,  including  Restaurant  and  Bar/Pub  and  allied
structures standing in the land Survey No.65/1-A, or  in  Survey  No.83/2-A,
of Village Morambio Grande, shall be demolished by Deputy  Collector,  South
Goa, within the period of six(6 weeks)

b.    We direct Respondent No.3 Anil to pay amount of rs.20(Twenty) Lacs  as
costs of degradation of  environment  and  violation  of  CRZ  Notification,
1991, within six(6) weeks to the Environment Department, Govt. of Goa  along
with costs of Rs. 5000/- (five  thousand)  as  litigation  costs,  which  be
equally disbursed in favour of all the applicants.

c.    The GCZMA, is  directed  to  hold  enquiry  regarding  houses  illegal
structures of CRZ area about  which  permission  might  have  been  obtained
without following due procedures and to take appropriate action against  the
violators of CRZ Notifications.

d.    The compliances about demolition of illegal structures  of  Respondent
No.3 and  costs  payment  of  costs,  shall  be  reported  to  the  tribunal
within(6) weeks.

e.    The application is accordingly disposed of.”



The appellant thereafter filed review petition before  the  Tribunal  which,
however, was dismissed on December 14, 2015, thus reiterating the  direction
already issued by the Tribunal.

7.    Aggrieved, the appellant has  filed  the  present  appeal  challenging
both the judgments on the original application and the  review  application.
According to the appellant the finding of  fact  recorded  by  the  Tribunal
with regard to the status of the structure standing on the subject  plot  is
manifestly wrong. It was  then  contended  that  even  the  finding  of  the
Tribunal that permission can be granted only for  repair  or  renovation  of
dwelling units, was contrary to the CRZ Policy document.  Further,  the  CRZ
Policy document does not restrict the user  of  the  existing  structure  or
disallow the change of user therein.  Further, the  appellant  having  taken
due  permission  of  the  competent  Authority  to  use  the  structure   as
Restaurant and Bar must prevail.  In the alternative it  is  submitted  that
the appellant was entitled to repair and renovate the original structure  as
it existed on 19th February,  1991  and  use  it  for  the  purpose/activity
permissible after  taking  approval  of  the  competent  Authority  in  that
behalf.  The learned counsel for Respondent No. 5 invited our  attention  to
the relevant documents, in particular to the show  cause  notice  issued  by
Goa Coastal Zone Municipal Authority (GCZMA) dated 25th May,  2012  and  the
Report of the Enquiry Committee (GCZMA)  dated  30th  February,  2014  which
concluded that there was no violation of CRZ Regulation.

8.    The appellant has not seriously  pursued  the  preliminary  objections
which were otherwise raised in the reply to  the  application  filed  before
the Tribunal and rejected by the Tribunal.  The principal  argument  of  the
appellant is that the factual finding recorded by  the  Tribunal  about  the
status of the structure on the subject plot is  manifestly  wrong.   In  the
first place, merely  because  remedy  of  appeal  is  provided  against  the
decision of the Tribunal before this Court that  does  not  mean  that  this
Court must reappreciate the entire evidence on  record  and  specially  when
the same has already been analysed by the Tribunal, unless the appellant  is
able to demonstrate that the finding recorded by the  Tribunal suffers  from
error apparent on the face of the record or is  perverse.  Nevertheless,  we
permitted the appellant to refer  to  the  relevant  contemporaneous  record
which has already been  extensively  analysed  by  the  Tribunal.  On  going
through the said documents, we  are  not  in  a  position  to  take  a  view
different than the view already taken by the Tribunal.  We  find  that  when
the appellant purchased the subject plot vide  registered  Sale  Deed  dated
3rd August, 1992, only a small structure at the corner of the said plot  was
in existence and was used as a garage and which was indisputably within  100
metres from the High Tide Line.  On this finding,  it  necessarily  follows,
that the structure as it exists now is quite  different  -  both  in  shape,
size and location being in the middle of the  plot.   Obviously,  it  is  an
unauthorized structure constructed  after  19th  February,  1991.   The  CRZ
policy dated 19.02.1991 prohibits any construction upto 200 metres from  the
High Tide Line.  It is to be treated as ‘No Development  Zone’,  except  for
repairs  of  existing  “authorized  structures”   not   exceeding   specific
permissible FSI, plinth area and  other  norms  for  permissible  activities
including facilities essential for such  activity  under  the  Notification.
The relevant clause in  the  said  Notification,   dealing  with  land  area
falling within CRZ-III area reads thus :-

          “………………….

CRZ-III

The area upto 200 metres from the High Tide Line is to be earmarked  as  ‘No
Development Zone.  No construction  shall  be  permitted  within  this  zone
except for repairs of existing authorized structures not exceeding  existing
FSI,  existing  plinth  area  and  existing  density,  and  for  permissible
activities under the notification including facilities  essential  for  such
activities.   An  authority  designated  by   the   State   Government/Union
Territory administration may permit construction  of  facilities  for  water
supply,  drainage  and  sewerage  for  requirements  of  local  inhabitants.
However, the following used may be permissible  in  this  zone  agriculture,
horticulture, gardens, pastures,  parks,  play  fields,  forestry  and  salt
manufacture from sea water.



Development of vacant plots between 200 and 500 metres of High Tide Line  in
designated areas of CRZ-III with prior approval of Ministry  of  Environment
and Forests (MEF) permitted for construction  of  hotels/beach  resorts  for
temporary occupation of  tourists/visitors  subject  to  the  conditions  as
stipulated in guidelines at Annexure-II.





Construction/reconstruction of dwelling units between 200 and 500 metres  of
the High Tide Line permitted so long it is within the Ambit  of  traditional
rights and customary uses such as existing fishing  villages  and  gaothans.
Building permission for such construction/reconstruction will be subject  to
the conditions that the total number of dwelling units  shall  not  be  more
than twice the number of existing units; total covered area  on  all  floors
shall not exceed 33  percent  of  the  plot  size;  the  overall  height  of
construction shall not exceed 9 metres and construction shall  not  be  more
than 2 floors ground floor plus  one  floor.  Construction  is  allowed  for
permissible  activities  under   the   notification   including   facilities
essential  for  such  activities.   An   authority   designated   by   State
Government/Union Territory Administration may permit construction of  public
rain shelters, community toilets, water supply,  drainage,  sewerage,  roads
and bridges.  The said authority may also  permit  construction  of  schools
and dispensaries, for local inhabitants of the area,  for  those  panchayats
the major part of which falls within CRZ if no other area is  available  for
construction of such facilities.



Reconstruction/alterations of  an  existing  authorized  building  permitted
subject to (i) to (iii) above.



……………………………………………..”

                                  (emphasis supplied)





9.          Relying on sub-clauses (i), (iii) and  (iv),  it  was  contended
that the Tribunal committed  error  in  law  on  two  counts.   Firstly,  in
assuming that the structure within CRZ area can be used only as  a  dwelling
unit, and secondly, that repairs and  renovation  permission  can  be  given
only to such dwelling units.   This  submission does not  commend  us.  Sub-
clause (i) plainly mandates  that  “no  construction”   of   any   kind   be
permitted   within 200  metres  from the High Tide Line.  That area  has  to
be treated as  “No  Development  Zone”,  except  for  repairs  of  “existing
authorized structures” (on the date of the Notification i.e. 19th  February,
1991) and not exceeding the permissible FSI, plinth  area  and  density  and
for permissible activities. Sub-clause (iii) deals  with  CRZ  area  between
200 to 500 metres of High Tide Line with which we are not concerned  in  the
present case.  In as much as, the finding of fact by the Tribunal about  the
location of the plot is that the plot was within 100 metres  from  the  High
Tide Line.  There is nothing to  doubt  the  correctness  of  this  finding.


10.   The moot question then is: whether the structure as  it  existed  when
the respondents moved the Tribunal complaining about  violation  within  the
CRZ area was the same structure as on  19th  February,  1991  when  the  CRZ
Policy came into being.  That finding of fact has been answered against  the
appellant by the Tribunal and  we  must  agree  with  the  same.   For,  the
structure as it existed when the plot was purchased by the appellant on  3rd
August, 1992 was a small structure at the corner of  the  subject  plot  and
was used only as a garage or for repairs of vehicles  and  allied  activity.
The structure in respect  of  which  complaint  has  been  made  before  the
Tribunal was completely different in  shape,  size  and  also  location  for
which reason the Tribunal issued direction to remove  the  same.   The  view
taken by the Tribunal relying on the decision  of  the  Bombay  High  Court,
which the  Tribunal  was  bound  to  follow,  permitted  retention  of  only
dwelling units within CRZ III area and constructed prior to  19th  February,
1991.  The direction given by the High Court in the case of  Goa  Foundation
(supra) have been reproduced by the Tribunal in  para  12  of  the  impugned
judgment, which reads thus :-

“12.  The Hon’ble High Court summarized  findings  and  gave  directions  in
paragraph 32 as follows :

   To conduct survey and enquiry as regards the  number  of  dwelling  units
and all other structures and constructions which were existing in  the  CRZ-
III Zone in Goa, village  or  town  wise  as  on  19th  February,  1991  and
increase the number thereof thereafter, date-wise.



   To identify on the basis of permission granted for  construction  of  the
dwelling units which are in excess of double the units with regard to  those
which were existing 19th February, 1991.





    To identify all types of structures and constructions  made  in  CRZ-III
zone, except the dwelling units, after 19th February 1991  in  the  locality
comprised of the dwelling units and to take action against the same for  the
demolition in accordance with the provisions of law.



     To identify the open plots in CRZ-III  zone  which  are  available  for
construction of  hotels  and  to  frame  appropriate  policy/regulation  for
utilization  thereof  they  are  being  allowed  to  be  utilized  for  such
construction activities.





    Till the survey and enquiry is completed,  as  directed  above,  no  new
licence for any type of construction in CRZ-III  zone,  except  repairs  and
renovation of the existing houses which shall be subject to the  appropriate
order on completion and result of the survey  and  enquiry  to  be  held  as
directed above and this should be specifically stated in the licences to  be
granted for the  purpose  of  repairs  and/or  renovation  of  the  existing
houses.



     The Respondent No.5 to conduct an enquiry and  fix  responsibility  for
the violation of CRZ notification in relation to clause-III of CRZ-III  zone
and to take appropriate action against  the  persons  responsible  for  such
violation of the provisions of the  Environmental  Protection  Act  and  the
said notification in relation to the CRZ-III zone.





     All this directions stated above are in relation to  the  CRZ-III  zone
in Goa in terms of the said notification.



     The  survey  and  enquiry  should  be  conducted  as  expeditiously  as
possible and should  be  concluded  preferably  within  the  period  of  six
months, and in any case, by 30th  May,  2007,  and  report  in  that  regard
should be placed before this court  in  the  first  week  after  the  summer
vacation of 2007, for necessary for the order.





     Meanwhile, on conclusion of the survey and  inquiry,  necessary  action
should proceed against the offending structures and report  in  that  regard
also should be placed along with the above effort report.

     The Respondent No.3  and  4  shall  ensure  prompt  compliance  of  the
directions given in this judgment and shall be  responsible  for  submitting
the report required to be submitted as stated above.



    All the records relating to the survey and the inquiry  should  be  made
available to the public available  to  the  public  and  in  that  regard  a
website should be opened and the entire material should be displaced on  the
website.   The  Respondent  No.3  should  ensure  due  compliance  of   this
direction by 10th of June, 2007.

    The respondent No.1 and 3 shall pay costs of Rs.10,000/- in each of  the
petitions to the petitioners.



    Report to be received from the respondents should be placed before  this
court in the third week of June, 2007.





    Rule is made absolute in above terms.”





So long  as  these  directions  are  in  force,  the  State  Authorities  or
Municipal Authorities were bound  by  the  same  and  they  could  not  have
granted permission to any  applicant  in  breach  thereof.   Any  permission
given contrary to those directions must be viewed as  nullity  and  non-est,
having been given in complete  disregard  of  the  directions  of  the  High
Court.  Thus, the permission granted to the appellant by GCZMA would  be  of
no avail, as it is not consistent with the directions  of  the  High  Court.


11.   The fact remains that the structure directed to be demolished  by  the
Tribunal, was obviously erected after 19th February,  1991.  That  being  an
unauthorized structure within the meaning of sub-clause  (i)  quoted  above,
could not be used  for  any  purpose  whatsoever  and  was  required  to  be
demolished.  Therefore,  the  finding  recorded  by  the  Tribunal  and  the
consequential directions given in that behalf are unassailable.

12.   In this view of the matter, it is not necessary for us  to  dilate  on
the argument as to whether the CRZ Policy prohibits change of  user  of  the
structure which was in existence on 19th February, 1991, so as  to  be  used
as a Restaurant and Bar.  In our opinion, on the facts of the present  case,
no substantial question of law much less of great public  importance  arises
for our consideration.

13.    Hence this appeal must fail and the  same  is,  therefore,  dismissed
with no order as to cost.

                                                            ……………………………..CJI
                                                               (T.S. THAKUR)


                                                            ………………………………..J.
                                                           (A.M. KHANWILKAR)


                                                            ………………………………..J.
                                                      ( DR.D.Y. CHANDRACHUD)

New Delhi
Dated: 7th October, 2016
-----------------------
[1]   [2]  W.P.No.422/ 1998 & W.P.No.99/1999


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