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2012 DIGILAW 1532 (BOM)

Raul Po v. Goa Coastal Zone Management Authority

2012-08-13

F.M.REIS

body2012
Judgment : Heard Shri J. Godinho, learned Counsel appearing for the petitioners and Shri S. Narvekar, learned Additional Government Advocate appearing for the respondent. 2. The above petition challenges an order passed by the respondent dated 17.05.2005 whereby the petitioners have been inter alia directed to demolish the disputed structure without any further notice. There are further directions issued by the respondent to forthwith disconnect the electricity and water supply to the said structure. 3. Shri J. Godinho, learned Counsel appearing for the petitioners has assailed the impugned order essentially on the ground that the petitioners have produced the material on record from the statutory Authority to disclose that the disputed structure was existing for more than 80 years. The learned Counsel further points out that the late father of the petitioners was even residing in the disputed structure for more than 75 years and that even he had sought for regularization of the said structure from the Municipal Authority. The learned Counsel further points out that the licences were issued for plastering, re-flooring and re-roofing of the said structure in the year 2004 on the assumption that the said structure was not violating any CRZ Notification. The learned Counsel further points out that the said disputed structure is located on the land ward side of the existing road which starts from Caranzalem-Donapaula road and after proceeding in front of the disputed structure leads thereafter back to the main Caranzalem-Donapaula road. The learned Counsel further points out that though this point was not advanced before the respondent, nevertheless, the record by itself discloses the existence of the said road and in view of the provisions of the CRZ Notification, such constructions are towards the land ward side are protected. The learned Counsel further points out that the disputed structure is located within the Municipal Corporation area. The learned Counsel further points out that the matter may be remanded to the respondent to consider the said aspect a fresh. 4. On the other hand, Shri S. Narvekar, learned Additional Government Advocate appearing for the respondent has pointed out that it is not possible to ascertain whether the disputed structure is on the land ward side of the existing road. 4. On the other hand, Shri S. Narvekar, learned Additional Government Advocate appearing for the respondent has pointed out that it is not possible to ascertain whether the disputed structure is on the land ward side of the existing road. The learned Additional Government Advocate further points out that such road, if any, is public authorized road and unless and until the petitioners establish the said aspect, the question of giving any such protection to the petitioners would not arise. The learned Counsel further points out that this aspect was not raised before the respondent, and as such was not in a position to consider the said aspect. The learned Counsel however does not dispute that in case any construction is located towards the land ward side of the existing authorised road, such construction would be protected provided that the requirements as contemplated under the CRZ Notification are satisfied. The learned Counsel further points out that as the petitioners did not raise such contention, it is not open to the petitioners to raise such contention before this Court at this stage. 5. I have duly considered the submissions of the learned Counsels as well as the records produced by the petitioners. On perusal of the impugned order, I find that the respondent has not dealt with the said aspect whilst passing the impugned order. It was incumbent upon the petitioners to raise such contention and put forward necessary material on record to establish that the disputed structure is protected under the provisions of CRZ Notification. Apart from that, it is pointed out by the learned Counsel appearing for the petitioners that the material which has been produced by the petitioners has not been scrutinized by the respondent whilst passing the impugned order. 6. Considering the facts and circumstances of the case and taking note of the contention of the learned Counsel appearing for the respondent, I find it appropriate that the impugned order dated 17.05.2005 passed by the respondent be quashed and set aside and the respondent be directed to decide the matter a fresh after hearing the parties in accordance with law as expeditiously as possible. In case the petitioners file any application for production of additional documents, the same shall be dealt with by the respondent in the light of the observations made herein above in accordance with law. 7. In case the petitioners file any application for production of additional documents, the same shall be dealt with by the respondent in the light of the observations made herein above in accordance with law. 7. In view of the above, I pass the following: ORDER (i) The impugned order dated 17.05.2005 is quashed and set aside. (ii) The respondent is directed to decide a fresh after hearing the petitioners in accordance with law as expeditiously as possible. All contentions of the parties on merits are left open. (iii) Rule is made absolute in above terms. (iv) The petition stands disposed of accordingly.