ANIL HOBLE Vs KASHINATH JAIRAM SHETYE .
Bench: T.S. THAKUR,A.M. KHANWILKAR,D.Y. CHANDRACHUD
Case number: C.A. No.-010212-010213 / 2016
Diary number: 26024 / 2016
Advocates: A. VENAYAGAM BALAN Vs
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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