IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 844 OF 2010 MANUELITA D'COSTA AND 23 ORS., ... Petitioners Versus THE STATE OF GOA THROUGH ITS CHIEF SECRETARY AND 10 ORS., ... Respondents Mr. Nigel Da Costa Frias, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No. 1, 3 to 8 and 11. Mr. N.k. Sawaikar, Advocate for respondents No.9(1),9(2) & 9(3). Coram:- S. C. DHARMADHIKARI & F. M. REIS, JJ. Date:- 14th March, 2011 P.C.:- By this petition under Article 226 of the Constitution of India, the petitioners are praying for a declaration that the construction of the proposed temple by respondent No.9 is illegal. They have also sought a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the construction licence dated 1/11/2010 issued by respondent No.2 and the NOC dated 23.12.2009 issued by respondent No. 4 to respondent no.9. 2. A further writ of mandamus is claimed, directing and commanding respondents No.2, 4 and 7 to forthwith revoke/withdraw all the permissions for development/construction granted to respondent No.9. 3 The petitioners claim to be residing within the Village Panchayat of Navelim, Salcete, Goa. The petitioners' lands are situate within this Panchayat limits. 4. The petitioners states that respondent no.9 is a registered trust. After pointing out as to how survey No.10/4 of the said Village belonged to a family and it came to be ultimately handed over to the trust, it is urged that the trustees of respondent No.9 applied for permissions to the Village Panchayat for construction of a temple. A NOC dated 23.12.2009 for the purpose of construction was issued. A conversion Sanad was also issued by the Deputy Collector and Sub-Divisional Officer, Margao dated 6th September, 2010 in respect of an area of 139 sq. metres. The Sanad states that the change of user of land is granted for residential purpose. 5. The petitioners state that the construction poses an environmental hazard inasmuch as it is on a plot on the bank of rivulet, which is a tributary of river Sal. It is stated that the plan submitted does not disclose that there is a rivulet. The other breaches which are alleged apart from the C.R.Z. violations, are pertaining to the terms and conditions of the conversion Sanad and Section 17A of the Goa Town & Country Planning Act, 1974. 6. An affidavit has been filed by the respondent No.5/Goa Coastal Zone Management Authority ("GCZMA" for short), through its Member Secretary, in which reliance has been placed on a visit of an expert member and the site inspection conducted pursuant thereto, findings of all of which are part of a report. This report is annexed at Exhibit R-1 to the affidavit. It is stated that the report certifies that there was no high tide impact/influence at the point, as also no mangrove vegetation and that there was only fresh water vegetation at the site like lotus, ficus, etc, and that even fresh water fish larvae were observed. Based on all the factors, it is concluded that the plot/area does not come under the CRZ Notification 1991. 7. An affidavit-in-rejoinder has been filed by one of the petitioners, in which it is stated that respondent No.5 has failed to take into account that the property is affected by CRZ Notification. The report is not correct. In fact, there is an independent inspection carried out and the report is dated 4th January, 2011. Reliance is placed on the observations at page 166 of the paper book. The conclusions therein which in the opinion of the petitioners, together with the plan annexed to this report, would show the CRZ violations. 8. After considering the arguments canvassed by both sides, we are of the view that the dispute is about correctness of the findings in the site inspection of a member/expert of the GCZMA. In such circumstances, which of the findings are accurate and can be said to be conclusive, is a matter which cannot be examined in our limited jurisdiction. We are of the view that the petitioners' grievances can be examined by the GCZMA. In such circumstances, we direct the said Authority to treat the present writ petition as a representation of the petitioners and after giving opportunity to the petitioners of being heard, the said Authority should pass a reasoned order indicating as to whether the construction is affected by CRZ Notification 1991 and whether there is any violation. The GCZMA should examine these aspects without being influenced by any of the statements made in the affidavit filed on its behalf. 9. So far as violation of conditions of Sanad dated 6th September, 2010 is concerned, the petitioners will have to satisfy the Dy. Collector and S.D.O. Margao that respondent no.9 has violated the terms and conditions of the said Sanad and, therefore, the construction commenced and sought to be completed, should not be permitted. It would be also open for the petitioners to point out that the conversion sanad was issued for residential purpose and not for institutional purpose. The Dy. Collector shall also examine this grievance of the petitioners by treating the present writ petition as a representation of the petitioners and pass a reasoned order, after giving opportunity to the petitioners of being heard. 10. As far as violation of Section 17A of the Goa Town & Country Planning Act, 1974 is concerned, Mr. Kantak, learned Advocate General appearing on behalf of the State and the Authorities, on instructions, makes a statement that if there is any violation of Section 17A of the said Act, the said Authority will take action under Section 17-B of the said Act. We direct that the Chief Town Planner may also examine this issue and if there is any filling up of any low lying land, without obtaining his prior written permission, then he should proceed to take such steps as are permissible in law. 11. A grievance is made by respondent No.9 that the petitioners are being permitted to raise the issues before the authorities once again by treating the writ petition as a representation of the petitioners. In that event even respondent No.9, through its representative, duly authorised, should be permitted to attend the hearing so that it can bring to the notice of the authorities that there is no violation of any of the terms and conditions of the conversion Sanad or the CRZ Notification, 1991. We permit respondent No.9 to make such submissions which shall also be taken into consideration by the afore-mentioned authorities. 12. As far as Chief Town Planner is concerned, we are satisfied that the statement made by learned Advocate General, on instructions, would redress the grievance of the petitioners in so far as violation of Section 17A of the Goa Town & Country Planning Act, 1974 is concerned. In such circumstances, any direction in the aforementioned, is not necessary to be issued to the Chief Town Planner. All the authorities, namely the GCZMA, the Dy. Collector concerned and the Chief Town Planner shall take necessary decisions and pass requisite orders within a period of 4 weeks from the date of receipt of authenticated copy of this order. 12. The petition is disposed of in these terms. We make it clear that we have not examined the merits of the rival contentions. Needless to clarify that the construction at site will proceed at the risk of respondent No.9 and if there is any conclusion recorded that the same is unauthorised and illegal, then the necessary consequences in law will follow. S. C. DHARMADHIKARI, J. F. M. REIS, J. ssm.