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2018 Supreme(Bom) 345

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
NUTAN D. SARDESSAI, J.
Sylvestre D'Souza - Appellant
Versus
The Goa Coastal Zone Management Authority, through its Member Secretary & Others - Respondent
Writ Petition No. 195 of 2012
Decided On : 22-03-2018

Advocates Appeared:
For the Petitioner:V.A. Lawande, A. Kamat, Advocates.
For the Respondents:A. Gomes Pereira, Additional Government Advocate.
For the Intervenors :J.E. Coelho Pereira, Senior Advocate with V. Braganza, Advocate.

Headnote:

Environment (Protection) Act, 1986 - Section 5 - CRZ Regulations, 1991 - Constitution of India,1950 - Articles 226 and 227 - Exception to order - Contravention of order - Cause Notice - Members committee - There were various structures existing in property surveyed under apart from property earlier belonging to who gave possession of property to him on and permitted him to build structures in area of for residing and development apart from permitting him to draw water from well and to carry out necessary repairs - Said had given his no objection to rebuild store room in said property and by his declaration gave his no objection to build room and water tank in the said property - He had also given his no objection to transfer store room in his name and to transfer house tax of house in name of petitioner - Panel had granted permission in name of owner to renovate and repair existing structures and which he had carried out - Owner had given letter and also declarations and no objections including transfer of house tax water and electricity connection in favor of petitioner – Held, Division Bench of this Court held that impugned orders being in clear breach of principles of natural justice and therefore petition deserved to be admitted notwithstanding judgment of Apex Court in case of Bhopal Gas (supra) which had culled out that existence of alternative statutory remedies would not operate as a bar in at least any three contingencies - From discussion of judgments and factual matrix it is clearly borne out that petitioner had failed to bring his case within all three of contingencies namely that there was a breach of principles of natural justice or that there was a violation of fundamental rights or that order under challenge was without jurisdiction for this Court to entertain this petition particularly when he had an equally efficacious alternative remedy before NGT – Petition dismissed

JUDGMENT :

1. This petition under Articles 226 and 227 of the Constitution of India takes exception to the order dated 15/02/2012 passed by the respondent no.1 directing the petitioner to remove all the 18 rooms. It was his case that the action of the respondent No.1 and the impugned order passed was arbitrary, perverse, unreasonable, illegal, without jurisdiction and in violation of principles of natural justice. It had been passed by the 4 members of the respondent No.1 in total contravention of the order 19/05/2011 which prescribes that at least 5 members should be present for any of the meetings of the sub-Committee in the matter pertaining to cases where the directions have been given by the Hon'ble High Court. There were various structures existing in the property surveyed under No.242/1 apart from the property earlier belonging to Luis Santo Pires who gave possession of the property to him on 13/11/1984 and permitted him to build structures in the area of 1550 sq.mts. for residing and development apart from permitting him to draw water from the well and to carry out necessary repairs. The said Luis Santo Pires had given his no objection to rebuild the store room in the said property and by his declaration dated 27/12/1986, gave his no objection to build the room and water tank in the said property. He had also given his no objection to transfer the store room No.122 in his name and to transfer the house tax of the house No.2225 in the name of the petitioner. The Panel had granted permission in the name of the owner to renovate and repair the existing structures and which he had carried out. The owner had given letter and also declarations and no objections including the transfer of the house tax, water and electricity connection in favour of the petitioner.

2. A Show Cause Notice dated 17/07/2001 was issued to him by the respondent no.1 alleging unauthorised construction in an area of 800 sq.mts. of the Survey No.242/1(part), within the No Development Zone of 200 sq.mts. from the High Tide Line followed by another Show Cause Notice dated 01/05/2002 when he replied claiming that he had not violated any provisions of the Coastal Zone Regulations and not done any illegal constructions in an area of 800 sq.mts. within 200mts. from the High Tide Line. The structures were in existence prior to 1991 and renovated by the petitioner. The Order dated 29/09/2005 issued by the respondent no.1 directing him to demolish the hotel had precipitated a Writ Petition at his instance No.24/2007 pursuant to which the said order was stayed. In the course of the matter being taken for final hearing the respondent No.1 submitted that the impugned order and all other consequential orders would be withdrawn and inspection of documents and fresh hearing would be given to the petitioner and thereupon the order dated 29/09/2005 and the consequential orders were withdrawn.

3. The respondent No.1 had issued a notice dated 20/11/2007 for a personal hearing before the respondent no.1 followed by another notice dated 01/02/2008. His request for site inspection and verification was rejected. A fresh notice dated 18/07/2011 came to be issued to the petitioner where a detailed reply was filed followed by a hearing. Though a hearing was fixed on 20/09/2011, it was not held as the four members committee was busy with finalising the shack policy. He had produced the file containing the original documents on 20/09/2011 when he was directed to produce the original file but no hearing took place. He had otherwise produced the Decree dated 11/11/2005 passed in Civil Suit No.188 of 2004, the execution proceedings bearing No.11 of 2007, the resolution dated 08/07/2011 and the report dated 06/01/2010 of the Village Panchayat. Pursuant to the execution proceedings, whatever was illegal and construction after 1981 was demolished by the District Court. The Panchayat had passed the resolution dated 18/07/2011 specifically stating that the structure belonging to the petitio
































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