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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

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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

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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

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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

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Condolim &  The  Panchayat  of  Calangut1,  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.

1  W.P.No.422/ 1998 & W.P.No.99/1999

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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

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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

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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

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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

i. 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.

ii. 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.

iii. 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

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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.

iv. 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

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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

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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 :

(A)    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.

(B)    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.

(C)     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.

(D)      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

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they  are  being  allowed  to  be  utilized  for  such construction activities.

(E)     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.

(F)      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.

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

(H)      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.

(I)      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.

(J)      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.

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(K)     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.

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

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

(N)     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

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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