1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 265/1999 The Goa Foundation, represented by its Secretary, Dr Claude Alvares, with registered office at Rm.7, Mapusa 403 507, Goa. ...... Petitioner. Versus 1)Ramesh Hotels and Resorts Pvt. Ltd. B-104, Swami Jairamdas Building, Basant Park, Opp. Chambur Police Station, Chembur, Mumbai 400071. 2)The Panchayat of Majorda-Utorda, through its Sarpanch, Majorda, Salcette, Goa. 3)State of Goa through its Chief Secretary, Secretariat, Panaji. 4)The Chief Town Planner, Town and Country Planning Department, Old Goa Medical College Complex, Panaji, Goa. 5)Minister for Revenue, Secretariat, Panaji, Goa ....... Respondents Ms. Norma Alvares, Advocate for the petitioner. Mr. J.E. Coelho Pereira, Senior Advocate with Mr. J. Godinho, Advocate for respondent No.1. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for respondent No.2. Mr. S.S. Kantak, Advocate General with Ms. Rakhi Chodankar, Addl. Govt. for respondents No.3 to 5. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date of reserving the Judgment : 17/07/2008 Date of Pronouncing the Judgment : 08/08/2008. 2 J U D G M E N T : (Per S.C. DHARMADHIKARI, J.) By this petition, under Article 226 of the Constitution of India, the petitioners are praying that records and proceedings with regard to the Approvals granted for the reconstruction of a bungalow on Survey No.41/1 and 41/2 of Utorda Village by the Authorities be called for and after examining their validity, quash and set aside the same. 2. The petitioners are an organization/society which is engaged in protection of ecology and environment. Members of the Petitioners Society are citizens of India and in furtherance of the fundamental duty enshrined under Article 51(g) of the Constitution of India have filed this petition. They have been filing petitions in this Court with regard to environmental issues, so also challenging unauthorised and illegal constructions which violate planning laws. They have also brought to the notice of the Authorities and the Court, violations of CRZ Notification. 3. Thus, the petition is filed in public interest. The first respondent to this petition is a private limited company, having its registered Office at Chembur, Mumbai. It is the successor-in-interest of one Maharani Guest House. Second respondent is the Panchayat of Majorda-Utorda through; the 3 Sarpanch whereas respondents No.3 to 5 are the State Authorities, namely, the Chief Secretary, the Chief Town Planner and the Minister for Revenue. It is urged that the State and these Authorities implement the provisions of Goa Town and Country Planning Act,. 1974. 4. The case of the petitioners is that the land bearing Survey No.41, sub-division 1 situate at Village Utorda, Taluka Salcete (for short, the said land) in the State of Goa belonged to one Ludovina Fernandes. The first respondent's predecessor claims to have purchased this land under a Deed of Sale dated 22nd September, 1986. The recitals in the sale deed are that the predecessors in title of the Vendors were absolute and exclusive owners in possession of the agricultural properties which are more particularly described in Schedule I to the sale deed and identified in the plan annexed with red boundary lines. After tracing the title of the vendors to the said agricultural lands, the sale deed recites that Ludovina Fernandes expired on 18.12.1982, as a widow of one Manual Carvalho. She had left a Will dated 11.5.1982. By this Will, she bequeathed the properties described in Schedule I in equal share to her son and daughter, who are the Vendors of the predecessor-in-title of the first respondent. The sale deed recites that there was an agreement for sale between the parties for the consideration mentioned therein. The consideration having been paid, the first respondent's predecessor M/s. 4 Maharani Guest House, a partnership firm, registered under the Indian Partnership Act, 1932, acting through its Partner Mr. Ramesh Kumar Khanna, have become the owner of the said agricultural lands. Schedule I gives the description of the lands and it is stated that the properties together admeasure about 32,775 sq. metres. It is pertinent to note that in Schedule I there is a description of the agricultural lands with survey numbers, but there is nothing mentioned about any structure standing thereon. However, the plan annexed to the sale deed shows that there is a small structure. 5. It is the case of the petitioners that Form I & XIV which has been certified by the Talathi cum Ex Officio Regedor, Majorda -Saza shows that the land admeasures 2 hectares 30 Ars and there is a reference therein of a coconut store room of owners. Our attention is invited to the plan which has been certified by the Directorate of Settlement & Land Records, Panaji showing the plot and making reference to a very small structure. Further, it is stated that the Office of Village Panchayat Majorda received an application dated 9.4.1994 along with xerox copy of the sale deed from Ramesh Kumar Khanna, Partner of M/s. Maharani Guest House, requesting the said Panchayat that the entry pertaining to the House Tax and street light tax of House No. 8- A(old) situate at Acsona Ward, Utorda which is existing in the property (Survey No.41/1) i.e. the said land, be transferred in the name of the 5 predecessor-in-title of the first respondent. The petitioners state that the Panchayat mentions that the old house ad measures 245 sq. metres, but there is no record of this measurement either with the Panchayat or with the predecessor-in-title of the first respondent. The allegation is that even the sale deed is silent with regard to the measurement and the area of the structure. 6. The petitioners then allege that the predecessor-in-title of the first respondent vide Exhibit-3 (letter January 10, 1996) addressed to Member Secretary, Office of the Chief Town Planner, Panaji sought his approval to renovation/remodel of the existing building on the said land. It is stated that the Coastal Regulation Zone was notified in 1991. It is stated that the said land is affected by the Notification. It is stated that the Coastal Regulation Zone Notification is dated 19.2.1991. It is a notification under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986. It is stated that the Environment (Protection) Rules and more particularly Rule 5(3)(d) permits declaration of coastal stretches and Coastal Regulation Zone (CRZ) and regulating activities in the CRZ. The Central Government, through its Ministry of Environment and Forest issued a draft notification and after duly considering the objections, issued the said Notification designating and regulating coastal stretches of seas, bays, estuaries, creeks, rivers and 6 backwaters which are influenced by tidal action (in the landward site) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone. With effect from the date of the Notification, the restrictions and prohibitions have been set out and as far as the present land and structure is concerned, the case of the petitioners is that under Annexure I to the Notification, the same falls under CRZ-III. It is their case that the relevant part of the notification, if perused, clearly shows that the area upto 200 metres from the HTL is to be earmarked as “No Development Zone”. No construction is permitted within this zone except for repairs of existing authorised structures not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the notification including facilities essential for such activities. The relevant part of the Notification reads thus : “CRZ-III (1) The area upto 200 metres from the High Tide Line is to be earmarked as 'No Development Zone' provided that such area does not fall within any notified port limits or any notified Special Economic Zone.12 No construction shall be permitted within this zone except for repairs of existing authorised structures not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the notification including facilities essential for such activities. 3,12. However, the following 7 uses/activities12 may be permissible in this zone-agriculture, horticulture, gardens, pastures, parks, play fields, forestry, projects relating to the Department of atomic Energy 19 mining of rare minerals 12 and salt manufacture from sea water, facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-III appended to this notification and facilities for regasification of liquefied natural gas subject to the conditions as mentioned in para (ii), facilities for generating power by non conventional energy sources, desalination plants, weather radars and construction of airstrips and associated facilities in the Islands of Lakshadweep and Andaman and Nicobar.13 7. It is then stated that in terms of the notification, a Committee had been set up called “Goa State Committee on Coastal Environment” (GSCCE) and the predecessor-in-title of the first respondent applied to this Committee for reconstruction of the existing house. Our attention is invited to Exhibit-4 which is a copy of this application. It is stated that most of the columns are left blank. However, area of the plot is mentioned as 32775 sq. metres. In column 5(i) covered area on G.F. existing is 245.00 sq. metres. Therefore, proposed floor area is 224 sq. metres. Thus, the area of the proposed reconstruction is stated to be 224 sq. metres. However, the submission of the petitioners is that there is no documentary proof available either with the predecessor-in-title of respondent No.1 or with respondent No.1, so also 8 with the Panchayat and other State Authorities demonstrating that the area of the structure, which was mentioned as a coconut store house, is 245 sq. metres. Yet, based upon this application, the Office of the Chief Town Planner, Town and Country Planning Department, Panaji, Goa by letter dated 18.3.1996 conveyed to the predecessor-in-title of the first respondent that their proposal for reconstruction was approved by the Committee. No objection is conveyed for the proposed renovation/repairs. 8. Our attention is invited to conditions 1 and 4 set out in the letter, which speak of permission as per the recommended plans and obligation of the first respondent’s predecessor-in-title to have a valid conversion Sanad of use of land as contemplated under the Goa, Daman and Diu Land Revenue Code, 1968. It is then stated that the first respondent applied for construction licence to the Panchayat by an application in the prescribed form made on 25.3.1996. It is alleged that the licence is sought for repairs of the existing house. On 26.3.1996, the first respondent applied for conversion sanad and, in that application, the area of the site proposed to be used for residential purposes is set out as 300 sq. metres. It is alleged that the plan which has been forwarded with this application is not accurate and genuine. There have been insertions and over writings therein. It is stated that there is no question of the user of the constructed area/building inasmuch as the land 9 user is agricultural. The permission sought is for repairs and renovation of the existing building. In such circumstances, what was the occasion to apply for a conversion sanad is not clear at all. 9. Further, our attention is invited to the communication dated 26.3.1996 (Exhibit-8) wherein the Sarpanch of the Village Panchayat of Calata-Majorda-Utorda informed the predecessor of the first respondent that the file is incomplete. There are no ownership documents, Schedule-II forms, questionnaire, survey plan, house tax receipt to prove the existing house. There is no site plan and there are no survey records in Form No. I & XIV with the Panchayat. In such circumstances, the Panchayat is unable to consider the application and issue any permission/licence as prayed. On the other hand, it directed the predecessor of the first respondent not to carry out any type of construction/reconstruction work until the construction licence is issued. These state of affairs continued and, yet, the Panchayat submitted the plans of the first respondent for Technical Sanction by the Assistant Engineer of Public Works Department. It is alleged that once the Panchayat finds that the record is incomplete, then, how the Panchayat moved in the matter and facilitates the predecessor of the first respondent in obtaining technical sanction, is not clear at all. Yet, acting upon the letter of the Panchayat (Exhibit-10), the Public Works Department accorded technical approvals 10 vide its letter dated 28.3.1996. Armed with this technical approval, the first respondent resubmitted the documents, except conversion sanad and once again requested the Panchayat to grant construction licence. The Panchayat determined a date for site inspection and communicated its decision to inspect the site in presence of parties on 1.4.1996. Thereafter, the Panchayat on 3.4.96 forwarded the plans of the first respondent to the Senior Town Planner for his clearance from the planning point of view. On 4.4.96, the Senior Town Planner issued a no objection certificate, but on certain conditions. It is in such circumstances that the Panchayat issued a construction licence on 9.4.96 to the first respondent and states that the licence is valid for a period of three years, but before the construction activity is undertaken, the conversion sanad must be obtained. 10. After completion of the construction, the Panchayat issued Occupancy Certificate on 9.7.1996. On 12.11.1996, the predecessor of the first respondent applied for the Panchayat for utilizing the construction as a guest house. The predecessor of the respondent moved on the basis that the reconstructed house is ready for use and occupation. In the meanwhile, the petitioner, a spirited citizen moved in the matter and wrote a letter to the Chief Town Planner on 23.11.1996. In this letter, it is recorded that a site meeting was held. The original survey plan from the Land Survey Department was examined by the petitioner. The reconstructed bungalow is 11 not as per the plinth showing on the survey plan and, therefore, investigation must be undertaken by the Chief Town Planner. The Chief Town Planner informs the petitioner that the reconstruction has been approved by the GSCCE on the basis of the documents submitted by the first respondent and after verification of the site condition. Thereafter, the petitioner noticed that the Deputy Collector and S.D.O. Margao had issued a stop work order, copy of which is annexed as Annexure R-6 (page 203 of the paper book). The Dy. Collector and S.D.O., Sub-Division, Margao in a show cause notice alleged that the first respondent illegally converted the land by constructing plinth area admeasuring 300 sq. metres, without obtaining prior permission of the SDO & Deputy Collector for conversion of agricultural land into non-agricultural. In such circumstances, the notice called upon the first respondent to show cause as to why action under Section 33 of the Land Revenue Code, 1968 should not be taken. It is stated that the Dy. Collector on 5.2.1997 passed an order directing demolition of the structure/building over an area of 300 sq. metres in the said land as the first respondent failed to respond to the show cause notice. It is alleged that the order of the Dy. Collector is based on a site inspection carried out by him on 3.2.97. The site inspection demonstrated and proved the existence of a building of 300 sq. metres area existing at the site. The Dy. Collector relied upon GSCCE letter/permission and alleged that the same was accorded only for repair/renovation of the 12 existing store which admeasures 89 sq. metres. The construction is within 200 metres of HTL and by no stretch of imagination such a large increase in the plinth area and construction thereon, can be termed as a renovation or repair of the existing structure. In the light of these observations, he directed demolition of the structure. However, it is alleged that the record indicates that the order was passed by the Dy. Collector and SDO ex parte. The first respondent filed an application under Section 193 of the Land Revenue Code praying that the said order was passed before the date stipulated for filing reply had expired. Thus, without any opportunity to show cause and in the absence of any representation the said order was passed. Accepting this contention and submissions, the Dy. Collector and SDO reviewed his order on 20.2.97. He granted time to the first respondent to file reply to the show cause notice upto 10.3.97. A reply was filed to the show cause notice by the predecessor of the first respondent and it urged that only renovation of the existing house was done after obtaining due permissions from the concerned authorities and that the existing house has plinth area of 245 sq. metres. That renovation was approved by the GSCCE and pursuant thereto, the work has been carried out. 11. It was urged that the residential house is and was located around the area which was demarcated as “Pot Kharab”. In view of this, the 13 show cause notice be withdrawn and if required, a sanad be granted. The matter was heard by the Dy. Collector and SDO and in the meanwhile, he also called for a check list from the Mamlatdar of Salcete. Thereafter, the Dy. Collector and SDO perused the records and concluded that as per survey plan, there only exists a coconut store of 89 sq. metres. Hence, the new construction admeasuring 300 sq. metres has been done by illegally converting agricultural land in Survey No.41/1 of Village Utorda. It is held that Form I & XIV of Survey No.41/1 in which Pot Kharab Class “A” which represents building is only 75 sq. metres and Pot Kharab “B” is 250 sq. metres. These measurements tally with the area indicated on the survey plan. He further held that the Mamlatdar’s plea that only survey records and survey plan is an authoritative document in determining the area of structure deserve to be accepted. The application made to the GSCCE by the respondents cannot prove the area as 245 sq. metres since they have not annexed any supporting documents. Holding thus, the Dy. Collector and SDO further concluded that by no stretch of imagination 300 sq. metres could be said to be an existing plinth area. Therefore, there is no question of permitting such construction and that too within 200 metres of the HTL. He holds that no new construction is permitted within this range and admittedly, the land in question falls within that distance. In such circumstances, there is a violation of CRZ regulations. Therefore, the request for regularization 14 cannot be granted, instead the structure will have to be demolished. 12. Aggrieved and dissatisfied with this order passed on 26.8.97, the first respondent approached the State Government by filing a Revision Application. It appears that the revision was heard by the Minister for Revenue, Government of Goa. At that hearing the SDO and Dy. Collector did not appear, though intimated. The petitioners point out that the first respondent relied upon the same record, namely, GSCCE approval and construction licence of the Panchayat. The respondent also relied upon the Panchayat letters and urged that all these documents have been issued after due inspection of the site. In all these documents area of the plinth is mentioned as 245 sq. metres. In such circumstances, the Dy. Collector and SDO’s order is bad in law. There is no question of any conversion inasmuch as the old house was built and it continues as such. There is no conversion. All these pleas have been accepted by the Minister and he sets aside the order of the Dy. Collector and SDO as being without jurisdiction. The Minister has also concluded that the GSCCE is a high powered committee and it is very much concerned with the implementation of the Coastal Regulation Zone notification. In its record, the site inspection shows an area of the plinth as 245 sq. metres. Therefore, relying upon all these documents and accepting the plea based upon them, the Revenue Minister by order dated 3.3.98 set aside 15 the Dy. Collector’s order. 13. The present petition is filed sometime in August, 1999 and this Court admitted the petition, passed an interim order by which the first respondent was restrained from occupying the premises. The premises were directed to be sealed. Further, the Panchayat was directed to file a report of structures existing in 200 metres, including plinth area, house numbers and whether constructed before or after the CRZ Notification came into force. Aggrieved by the interim order passed on 12.1.2000, the first respondent approached the Honourable Supreme Court and the Supreme Court directed the parties to maintain status quo, after modifying the interim order of this Court. The Supreme Court order is dated 24.7.2000. 14. In the meanwhile, the Panchayat submitted a list of 9 structures existing in within 200 metres zone from the HTL in Majorda vide Report dated 5.1.04. Similarly, pursuant to further orders, Inspector of Survey and Land Records also submitted his report with regard to the nine structures. That report submitted on 9.8.04 shows that the plinth area of the first respondent’s structure as 450 sq. metres. 15. After these developments, the petition has been placed for 16 hearing and final disposal before us. 16. Mrs. Norma Alvares, the learned Counsel appearing for the petitioners submits that the undisputed facts are that there is a Notification dated 19.2.1991 and the area under CRZ-III is a No Development Zone. Admittedly, the construction in question is within the no development zone. Inviting our attention to the phraseology of the subject-notification, she submits that what is mandatory is that the existing structure must be authorized and repairs are permitted only to the extent of existing plinth area. Thus, both conditions are required to be satisfied, if repairs are to be permitted, she submits that there is no dispute that the construction is within 200 metres of the HTL and any construction after 19.2.191 which violates the CRZ-III Notification, cannot be regularized and tolerated, but must be pulled down if the same does not come within the parameters of the notification. She submits that by no stretch of imagination, it can be contended that what has been done at site is a repair of the existing authorized structure not exceeding the existing plinth area. The construction is 95 metres away from the HTL. She has relied upon the word “repairs” appearing in the subject- notification and submitted that the original area would alone be determinative in this case. The existing area is what is delineated and demarcated in Form I & XIV and the survey. The survey plan shows that what is a coconut store, 17 is a small structure constructed on a plinth of only 75 sq. metres. She relies upon the sketch map and copy of form I & XIV annexed to the petition and contends that nothing more than the existing 75 sq. metres plinth area can be consumed. Even FAR of the existing plinth alone can be utilized. The construction on the basis of 245 sq. metres, plinth area is much more than what is permissible. In fact, the structure admeasures 300 sq.mtrs. Thus, it is not an authorized structure at all. Therefore, the Minister for Revenue and the GSCCE could not have granted any approval to such a construction. 17. She submits that neither the Panchayat nor the State Authorities have been able to produce any material to show that the existing plinth area was 245 sq. metres. She submits that the petitioner does not dispute that there was an existing structure. However, the petitioners seriously dispute that the existing plinth area was 245/325/300 sq. metres or 450 sq. metres. A coconut store room cannot occupy such a large plinth area. Therefore, all the Authorities have colluded with each other and assisted the first respondent in putting up a structure beyond the permitted area. Such a construction within 200 metres of the HTL, under the garb of repair permission, cannot be allowed to exist at all. It poses major threat to the ecology and environment. Further, the malafides are clear inasmuch as the Minister for Revenue was the Chairman of GSCCE.