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2001 DIGILAW 553 (BOM)

GOA FOUNDATION v. UNITED BREWERIES

2001-07-11

A.S.AGUIAR, K.K.BAAM

body2001
JUDGMENT SMT. K. K. BAAM, J. :- The petitioners, Goa Foundation, a Non Government organization has filed this petition in the nature of Public Interest Litigation seeking to challenge the permission granted to respondent No. 1 for construction of a Company Guest House under Survey No. 112/19 at Candolim. The petitioners have also sought in the nature of writ directions to respondent No. 1 to demolish the construction erected on Survey No. 112/19 at Candolim and to restore the ecological balance and further pending the hearing and final disposal of the petition respondent No. 1 be restrained from proceeding with its construction under Survey No. 112/19 of village Candolim and to maintain status quo. 2. As regards the cause of action in this petition, on 24th December, 1988, the petitioners made an application for grant of ad-interim relief restraining the construction of respondent No.1. After hearing the parties an order of injunction was passed by which the suit construction was stayed and status quo was directed to be maintained. An application was made subsequently on behalf of the respondent No.1 seeking variation of the order. This application was rejected but hearing of the petition was expedited. The petition is heard by us. On behalf of the petitioners, the challenge to the petition is on the ground that the construction of the Company Guest House which is being carried out by respondent No. 1 in the CRZ-III Zone is not permissible in terms of the provisions of the Coastal Regulation Zone Notification as amended by the Notification dated 16th August, 1994. It was also argued on behalf of the petitioners that respondent No. 1 has indulged in massive destruction of sandy stretch and sand dunes which is prohibited under the Zonal Regulation, further, it is the case of the petitioners that in the area where respondent No. 1 is carrying on the construction, the restriction relating to doubling of units had already been achieved by the end of 1995 and no fresh permission for construction could be granted under CRZ-III and (iii) Regulation. 3. 3. In the course of the arguments advanced on behalf of the petitioners and the respondents, it has been brought to our notice that so far as the contention that in carrying the construction of the Company Guest House, respondent No. 1 has indulged in massive destruction of sandy stretch and sand dunes which is prohibited, an enquiry was directed to be carried out by respondent No.5 and they have withdrawn the show cause notice that was issued in this respect. Hence, the petitioners have not canvassed any arguments on this issue. As regards the question of doubling of units, the same is a matter pending consideration in respect of the entire coastal region of the State of Goa and is the subject matter in Writ Petition No. 422/98 which is pending adjudication before this Court and, therefore, it was urged on behalf of the petitioners that the said contention substantially being the subject matter of Writ Petition which is pending, the same is not pressed for at this stage as it is a matter pending adjudication in Writ Petition No. 422/1998. 4. The question, therefore, that arises for consideration is whether the construction of respondent No.1 which has been sanctioned by the respondents is in compliance with the Regulations as set out in the Coastal Area Classification and Development Regulations CRZ-III (iii). It is vehemently urged on behalf of the petitioners that the construction of the Company Guest House is not permissible under the CRZ- III (iii) Regulation and, therefore, on that count the permission given by the authorities is in violation of the Rules and Regulations. The point that requires consideration is "Can a Company Guest House be approved by the concerned authorities i.e. G.S.C.C.E. which is the Goa State Committee on Coastal Environment, the Town Planner and the Sarpanch when the construction is under CRZ-III (iii)." 5. Miss Norma Alvares, learned Advocate who appears on behalf of the petitioners has brought to our notice the Regulation pertaining to the development in Category-III (CRZ-III). A perusal of the Classification of Coastal Regulation Zone reflects that Zones are categorized under three categories. The development carried out by respondent No. 1 falls under Category-III which relates to areas that are relatively undisturbed and those which do not belong to either Category-I or II. A perusal of the Classification of Coastal Regulation Zone reflects that Zones are categorized under three categories. The development carried out by respondent No. 1 falls under Category-III which relates to areas that are relatively undisturbed and those which do not belong to either Category-I or II. This category includes Coastal Zone in the rural areas developed and undeveloped and also designated urban areas which are not substantially built up. 6. Reliance is also placed on CRZ-III which also has three categories. Category (i) is the area which covers the area upto 200 meters from the High Tide Line is to be earmarked as "No Development Zone". However, there are certain uses which are mainly (i) Agriculture, horticulture, garden, pastures, parks, play fields, forestry and salt manufacture. Category (ii) this refers to 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 Forest permitted for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines at Annexure II. Under this Regulation, hotels/beach resorts can be constructed provided they may with the prior approval of the Ministry of Environment and Forest apply with the conditions as stipulated therein. 7. The construction under challenge falls under approval being granted under CRZ-III (iii). Construction/reconstruction of dwelling units between 200 and 500 metres of the H.T.L. permitted so long as 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 not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 per cent 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). 8. It is vehemently urged on behalf of the petitioners that the construction of the Company Guest House in respect of which permission was sought by respondent No. 1 and was granted by the concerned authorities is sanctioned under this category. However, it is contended that the construction of a Company Guest House is prohibited as permitted constructions under CRZ-III (iii) refer to constructions of dwelling units. However, it is contended that the construction of a Company Guest House is prohibited as permitted constructions under CRZ-III (iii) refer to constructions of dwelling units. The construction of the Company Guest House can by no stretch of imagination be considered as a dwelling unit if at all the same were permissible. The same would fall in the category of development under CRZ-III (iii) for which ministerial sanction was required. It is vehemently urged on behalf of the petitioners that an order to attract the provision of CRZ(III) (iii) it was not open to the authorities to require respondent No.1 to make a statement or file an affidavit to the effect that commerciality is not involved, as regards this construction and, therefore, the same be sanctioned under CRZ-III (iii). 9. The second challenge to this construction is that the same does not fall within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. In the course of the arguments advanced on behalf of the petitioners, it was vehemently contended that only the locals are permitted to carry out construction in this area and except for locals permission cannot be granted to any other person. This argument is based on the aspect that by granting permissions to people like respondent No. 1, the locals are denied the right of residence, construction of dwelling houses and, therefore, on that count the plans should not have been sanctioned in favour of the respondents. So far as this argument is concerned, a perusal of this provision does not include the category of locals nor can the same interpretation be given to the phrase traditional rights and customary uses such as existing fishing villages and gaothans the same cannot be interpreted to mean that locals are only permitted to carry out construction under CRZ(III) (iii) the same provides that the construction is permitted so as to fall within the ambit of traditional rights and customary uses which should not be infringed. Initially, when the petition was filed arguments were also advanced on the aspect doubling of dwellings units having been achieved by the end of 1995 the construction cannot be permitted. However, this argument is not pressed for at this stage as the same is a subject matter in an independent proceeding pending before this Court. 10. Initially, when the petition was filed arguments were also advanced on the aspect doubling of dwellings units having been achieved by the end of 1995 the construction cannot be permitted. However, this argument is not pressed for at this stage as the same is a subject matter in an independent proceeding pending before this Court. 10. On the issue regarding number of dwelling units a reply has been filed on behalf of respondent No.2 by Mrs. A. A. Agni, learned Advocate appearing on behalf of respondent No.2 setting out the number of constructions existed and according to the contents of the affidavit, there is no violation of this Regulation. However, we restrict ourselves and do not deal with this aspect of the matter as the same is pending adjudication in an independent proceeding. 11. It is vehemently urged on behalf of the petitioners that in order to bring the construction within the purview of CRZ-III(iii) Regulation, respondents have sought to address a letter to the Chief Town Planner wherein they have stated that the same is to be used as residential accommodation and thereafter, it is the case of respondent No. 1 that the same would be used for the purpose of the residence of their Chairman who visits Goa seven to eight times a year and is required to have a place of residence. 12. On behalf of the petitioners, reliance is placed upon a rule in the matter of C.I.T., Madras vs. K. S. Ratnaswamy reported in (1980) 2 SCC 548 , where the question of dwelling place and residence is considered. However, so far as this ruling is concerned, the same would not apply to the facts of the present case as the question under consideration was question of dwelling house and residence considered under the Income tax Act. However, it is vehemently urged on behalf of the petitioners that a Company residential premises would not fall in the category of a dwelling place and, therefore, respondents were not entitled to give permission and the Company was not competent to construct the dwelling unit as the same relates to a concept of a home or abode where a person resides. 13. 13. It is urged on behalf of the petitioners that the construction is permitted under Clause (iii) provided the same is used as a dwelling unit coupled with the fact that it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. It is also vehemently urged on behalf of the petitioners that the respondent intends to construct a guest house which cannot be construed as the same does not fall in the category of a residence or a dwelling unit more particularly when the construction is for the Chairman who visits Goa for the purpose of business, the same does not belong to any individual neither do the respondents have any traditional rights in the area to be entitled to the grant of permission. So far as respondents are concerned, it is vehemently urged on behalf of respondent No. 1 that this litigation being in the nature of Public Interest Litigation, the petitioners are required to being before the Court the irregularities committed to protect the environment and not to perform the duties of the concerned officials or pursue the litigation with vehemence in an adversarial manner as in the case of private litigant. 14. On behalf of the respondents, it is urged that the construction under challenge is concerned, the same is not for commercial aim, but for the residence of the Chairman. According to the petitioners, the Notification has been issued to protect the Coastal Zone environment. What will happen to local inhabitants if the respondents are permitted to construct the guest house the same would tantamount to re-writing the Notification. A perusal of the Notification does not reflect that "ambit of traditional rights and customary uses such as existing fishing villages and goathans", the rights of local people are included. It is urged on behalf of the respondents that if this concept and condition is to be accepted Minutes of the 15th Goa State Committee on Coastal Environment held on 21st November, 1997 in the Conference Hall, Secretariat, Panaji, Goa. The names of the Members of the Committee have also been reflected in this Meeting, a perusal of which reflects the status of members who are on the Committee they are the Hon. Minister for Environment, Ex. Chief Town Planner, Captain of Ports, Senior Hydrogeologist who is representative of the Chief Engineer, Irrigation, Dy. The names of the Members of the Committee have also been reflected in this Meeting, a perusal of which reflects the status of members who are on the Committee they are the Hon. Minister for Environment, Ex. Chief Town Planner, Captain of Ports, Senior Hydrogeologist who is representative of the Chief Engineer, Irrigation, Dy. Conservator of Forest, who is the representative of Conservator of Forest, two Scientists who are representatives of the NIO and the Chief Town Planner. A Constitution of this Committee, therefore, reflects that persons having designation and responsibility are holding Offices on this Committee to determine the issue the regard to the sanction of constructions vis a vis the Rules and Regulations of their coastal environment policies. A perusal of this Minute reflects that Item No. IIl-3 is a proposal for the construction of residential house by United Breweries on survey No. 112/19 at Candolim i.e. the construction by respondent No.1. The proposal has been considered as the same is beyond 200 metres from H.T.L. The aspect that the same will not amount to doubling has also been considered. The Committee approved the project subject to condition that the project should be strictly used as Company Guest House and should not invoke commerciality. Though, this proposal was considered in the meeting held on 21st November, 1997, the same was approved and sanctioned and by letter dated 10th February, 1998, the sanction was communicated to respondent No.1 herein which was despatched under the signature of Chief Town Planner, Member and Secretary of G.S.CCE. The aforesaid fact reflects that members of the Committee deliberated on this issue of sanction and there was no undue haste on their part to grant permission to respondent No. 1. A copy of the sanction letter was also despatched to the Sarpanch, Village Panchayat of Candolim and the Chief Town Planner. The approval by the Committee was subject to the respondents complying with the regulations, Plans were annexed. Respondent No. 1 was directed to follow the Environment Guidelines under CRZ Regulations. Respondent No. 1 was also directed to have a valid conversion sanad of use of land and licence from Village Panchayat and Municipality providing traditional access to the satisfaction of the local authority, construction of the septic tank and other conditions were required to be complied with. Respondent No. 1 was directed to follow the Environment Guidelines under CRZ Regulations. Respondent No. 1 was also directed to have a valid conversion sanad of use of land and licence from Village Panchayat and Municipality providing traditional access to the satisfaction of the local authority, construction of the septic tank and other conditions were required to be complied with. Respondent No. 1 has also produced before us the valid conversion sanad which is dated 26th February, 1998. Upon the issue of this permission by G.S.CCE., the other authorities namely the Chief Town Planner, Town and Country Planning Department who is a Member Secretary on the G.S.CE. Committee and the Sarpanch granted permission. 17. It is, therefore, urged on behalf of the respondents that the construction is in accordance with the permission granted by the various authorities in view of the fact that no mala fides have been attributed. There is transparency in the process in granting the permission. At this stage, we cannot sit in appeal, when permission has been granted after deliberation by Committee Members and various authorities and upon respondent No. 1 complying with all the Regulations, petitioners cannot direct us to sit in appeal and challenge the permission granted to respondent No.1. 18. Mr. A. N. S. Nadkarni, the learned Advocate General on behalf of respondent Nos. 3, 4 and 5 has urged before the Court that the litigation being in the nature of Public Interest Litigation, the petitioners are required to bring to the notice of the Court that the permission given for construction is impermissible and the same is liable to be challenged. In the case of Public Interest Litigation, it is for the petitioners to voice the public grievances and it is urged that they cannot seek to take up certain issues, in consideration in this litigation and in respect of certain contentions raised reserve arguments which are subject matter of this petition for another litigation. So far as this contention is concerned, We do not lend support to this argument as the argument with regard to the doubling of units of an independent petition has been filed by the petitioners herein the same is a subject matter under consideration with regard to the entire Goa Costal Zone. In the said petition, a statement has been made by Mr. In the said petition, a statement has been made by Mr. Nadkami, learned Advocate General that they will not grant further permission in respect of constructions under CRZ-III. This issue, therefore, in the interest of Public Interest Litigation also cannot be considered for piecemeal predetermination at this stage but the same is to be left for consideration in the appropriate petition which has been filed and is pending hearing. 19. On behalf of the respondent Nos. 3, 4 and 5, it has been urged by the learned Advocate General that the construction carried on by respondent No. 1 is a permissible construction under the Regulation as the same is in the Development Zone. On behalf of respondent Nos. 3 to 5, it has been urged that the clause "within the ambit of traditional rights and Customary uses such as existing fishing villages and gaonthans" has been incorporated to ensure that there is no drastic change in the construction pattern of the houses so that the ambience of environment is not disturbed. Though, there is no definition of the word "Gaonthans" in the Coastal Zone Regulation, reference is invited to word "gaonthans" as understood under the Land Revenue Code. Under the Land Revenue Code, "Gaonthans or Village site" means the lands included within the site of a village, town or city as determined by Section 64. These provisions have been included in this Regulation to ensure that the constructions which are to be permitted are constructions which fit in with the surroundings and the natural ambience is not destroyed by outlendish constructions. Further, it cannot be contended that the constructions should be strictly in accordance with the fishing villages or within the ambit of "traditional rights" and "Customary uses" as the same have not been defined, further a perusal of the latter part of Clause (iii) reflects that so far as the construction is concerned total Covered area on all floors shall not exceed 33 per cent 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). The fact that the construction of this dimension is permitted clearly reflects that the construction permitted cannot by any stretch of imagination be a construction in nature of gaonthans or fishing villages. The fact that the construction of this dimension is permitted clearly reflects that the construction permitted cannot by any stretch of imagination be a construction in nature of gaonthans or fishing villages. The idea of imposing this restriction is merely to curtail construction of multi-storeyed buildings, or outlendish structures in respect of which they are not entitled to and will not be granted the requisite sanction for construction in this zone. 20. On behalf of the petitioners, it is vehemently argued that the Company Guest House would not fall within the category of a dwelling place and that is the reason why a letter was written to the authorities that the same is to be used for residential purpose and subsequently it is contended on behalf of respondent No. 1 that the same is to be used by the• Chairman. So far as this argument is concerned, we find it necessary to note that a perusal of the meeting held at the Office of the Chief Town Planner, Town and Country Planning Department by a letter dated 10th February, 1998 by which respondent No.1 was informed that the proposal to construct on survey No.112/19 of Village Candolim, Taluka Bardez, Goa was accepted. The same makes a reference to an application of United Breweries Ltd. for construction of residential accommodation. A reference is made on behalf of the petitioners to the extract from G.S.C.C.E. meeting dated 21st November, 1997 with special reference to the noting that the Company approved the project subject to the condition that the project should be strictly used as Company Guest House and should not involve commerciality. Therefore, merely because the terminology has been used to the effect that the same is a Company Guest House, it cannot be contended as it is sought to be contended on behalf of the petitioners that the same does not fall within the category of dwelling unit. As the Company Guest House, merely because units are constructed by the Company does not exclude them from the category of dwelling units as the Guest House has been constructed for the purpose of affording residence to its employees in the course of their employment or as residence in the course of their visit to Goa. As the Company Guest House, merely because units are constructed by the Company does not exclude them from the category of dwelling units as the Guest House has been constructed for the purpose of affording residence to its employees in the course of their employment or as residence in the course of their visit to Goa. Hence, the matter of user being residential the same does not change by virtue of the nature of the occupation by the Company employees whether it is permanent or for temporary period. 21. On behalf of the petitioners, our attention is drawn to the Minutes of the first meeting of the Goa Coastal Zone Management Authority Item No. 46 and the extract of that meeting where a proposal was made regarding request of N.O.C. for construction of childrens park and Guest House in 275 and 276 of Mandrem village, Pernem Taluka, Khorlim Taluka. The decision was given to the effect that only the Establishment of Childrens park is sanctioned wherein the proposal for construction of a Guest House is rejected as the same is not permissible within CRZ-III as per the Coastal Regulation Zone Notification. No doubt, the proposal for construction of Guest House was rejected. However, we do not have before us the applications for this project. What were the particulars furnished by the parties therein, who were the Applicants, on what basis was this construction of the Guest House rejected? Whether the same was for a commercial purpose or not is not brought to our notice. So far as the construction of respondent No.1 is concerned, they have in terms stated that the same is not for commercial purpose but for the residence, whether it be of the employees or the Chairman. If, the same is for the purpose of residence, then the same is a dwelling unit and can be considered as a dwelling house under CRZ-III (iii). 22. On behalf of the respondents, reference is made to the New Lexicon Websters dictionary where "dwelling house" has been defined as a residence not used as a shop, office. It was this criteria which prevailed in the mind of the authorities that the same was not to be used for commercial purpose that the sanction was accordingly granted. 22. On behalf of the respondents, reference is made to the New Lexicon Websters dictionary where "dwelling house" has been defined as a residence not used as a shop, office. It was this criteria which prevailed in the mind of the authorities that the same was not to be used for commercial purpose that the sanction was accordingly granted. Further, so far as the petitioners before the Court are concerned, they have not brought before the Court any material to support this contention that by construction of the Guest House any damage is caused to the environment. So far as this construction is concerned, it is not the case of the petitioners that the construction is not in accordance with the conditions stipulated in CRZ-III or that CRZ(III) (iii) does not apply to the facts of the present case. 23. To support the contention that construction is illegal, unauthorized, on behalf of the petitioners, reliance is also placed in the matter of Gulf Goans Hotels vs. Union of India, reported in 2000 (2) GLT 265 wherein the question considered was deprivation of property without authority of law is violative of Article 300A of the Constitution. "It is observed therein that Article 300A provides that a person shall not be deprived of his property, save by the authority of law. Inherent in that it is contended that the property cannot be used for a purpose which would defeat Article 21 of the Constitution of India. No person or owner of the land can use the land to the detriment of the people at large, even if there be no Act. Inherent in the use of the land is inherent the mandate of Article 21. It is further pointed out that at any rate, at the relevant time the land which was agricultural was allowed to be used for non-agricultural purposes. The petitioners, therefore, cannot complaint that there is any restriction. The privilege to use a particular land for a particular purpose is not a right to property, but is only to regulate the user of land. It is not the case of deprivation at all, as restriction is only on the use of the land for a particular purpose because of its location". The privilege to use a particular land for a particular purpose is not a right to property, but is only to regulate the user of land. It is not the case of deprivation at all, as restriction is only on the use of the land for a particular purpose because of its location". This ruling was cited by the petitioners, in reply to the contentions raised on behalf of the respondents that their fundamental rights to reside anywhere as provided in Article 19 stands violated. So far as the rights to construct being violated, is an issue which will be determined only if the question that was for consideration was that the rights of the local stand prejudiced. However, in view of the fact that the relevant clause under the Notification relating to the construction being within the ambit of existing fishing villages and gaonthan, it does not include the right of the local people. So far as this argument is concerned, the same is unwarranted and deserves to be rejected. 24. On behalf of the respondents, reliance is placed on a ruling reported in 2001(1) BCR 261 which set out the scope of judicial review, it was observed therein: "Doubtless, judicial review has been held to be a basic feature of the Indian Constitution and the power of the constitutional Courts, whether they be High Courts exercising jurisdiction under Article 226, or the Supreme Court under Article 32, is virtually limitless except for self-imposed limitations in the interest of administration of justice and the dictates of prudence. A Public Interest litigation is not adversary in nature, but is intended to focus the Public Interest aspect before the Court. If the Court is apprised of substantial injury of Public Interest, the Court is empowered and duty bound to interfere to do justice to the inarticulate public whose interest is projected as affected. Despite the awe-some powers available in writ jurisdiction, the Courts have constructively bridled this power and deferred to experts in matters of public interest where, in view of the amplitude of complexity and technical nature involved, a judicial proceedings in the nature of a writ petition would be wholly inappropriate for determination of the issues thrown up. Policy matters have also been rightly left for the public authorities to decide and the final say in such matters should normally not come within the purview of judicial review." 25. Policy matters have also been rightly left for the public authorities to decide and the final say in such matters should normally not come within the purview of judicial review." 25. In view of observation in the above ruling and limitations imposed on judicial review so far as the present cause of action is concerned as regards the construction of the Company Guest House by respondent No.1 petitioners have not been able to bring before the Court any material to show that the construction was in violation of any statutory provision or violation of CRZ-III(iii) Notification. There is no injury to Public Interest nor any prejudice to the environment. Plans have been sanctioned. Permission has been granted by the relevant authorities. No mala fides have been attributed to the authorities except for the challenge that the Company guest House constructed by respondent No.1 does not fall within the category of dwelling unit as understood under CRZ-III Notification. This aspect has been considered by the authorities concerned. Permission has been granted after inspection of the site. Respondents were directed to comply with the necessary conditions under which permission was granted and the same has been complied with. We are of the opinion that it is not open to the petitioners to contend that the construction is in violation of the CRZ Regulations and requires to be demolished. 26. Hence, so far as this petition is concerned, we are of the opinion that the competent authorities have determined the issue and sanctioned the plans, there is no illegality in this sanction as the concerned authorities have sanctioned the construction which is in progress, the same not being in contravention of CRZ- III(iii) Notification. 27. So far as the petition is concerned, we are of the opinion that the same is not maintainable and deserves to be rejected. Respondents are permitted to carry out the construction subject to further orders of the Court. Petition dismissed.