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2013 DIGILAW 423 (BOM)

Riva Beach Resort Pvt. Ltd. v. Goa Coastal Zone Management Authority through its Member-Secretary Department of Science, Technology

2013-02-21

BIKRAM SINGH SAJWAN, P.C.MISHRA, P.S.RAO, RANJAN CHATTERJEE, V.R.KINGAONKAR

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JUDGMENT V.R. Kingaonkar, J.- Challenge in this Appeal is to the order dated 22nd June, 2012 passed by the respondent (GCZMA). By that order, the respondent directed the appellant-M/s Riva Beach Resort Pvt. Limited to demolish seven (7) structures along with ground plus one structure standing on site situated on land survey No. 273/3 of village Mandrem of Pernem Taluka (Goa), under Section 5 of the Environment (Protection) Act, 1986 read with sub-rule 3(a) of Rule 4 of the Environment (Protection) Rules, 1986. The demolition order is issued on the ground that the structures in question are within "No Development Zone" area of Junaswada, Mandrem-Pernem and carried out in violation of the Coastal Regulation Zone (CRZ) Notification, 1991. 2. There is no dispute about the fact that the appellant is a company incorporated under the provisions of Companies Act, 1956. The appellant deals in Hotel Industry. It runs a beach Resort called "RIVA BEACH RESORT" in village Mandrem-Pernem, Goa. The appellant purchased certain parcels of agricultural land bearing survey No. 277/2 and survey No. 273/3 under three (3) Sale Deeds dated 20th September, 2004, 19th October, 2006 and 12th April, 2012. 3. Briefly stated, case of the appellant is that there were certain existing structures on the said properties which they have purchased along with the parcels of the land; Those were the structures of private individuals. The structures could be of certain 'Mundkars'. Those structures existed on the parcels of the land since 1982 or even prior thereto. The houses have been duly allotted numbers by the Village Panchayat of Mandrem. The occupants of the said structures i.e. Mundkars are provided protection under the Goa, Daman and Diu, Mundkars (Protection from Eviction) Act, 1975 (for short, 'Mundkars Protection Act, 1975). 4. The appellant further claims to have entered into oral agreement with some of the occupants of the said structures which are now acquired for the use of beach resort. The appellant was served with a show cause notice dated 6th August, 2009 by the respondent, calling upon him as to why direction be not issued for disconnection of supply of water and electricity and to demolish the illegal structures. The appellant was served with second show cause notice dated 11th August, 2009 by the Deputy Collector, Pernem-Goa, calling upon him to explain its stand as regards seven (7) different structures which were allegedly illegally raised. The appellant was served with second show cause notice dated 11th August, 2009 by the Deputy Collector, Pernem-Goa, calling upon him to explain its stand as regards seven (7) different structures which were allegedly illegally raised. A summary inquiry was conducted by the Deputy Collector, Pernem (Goa) in this behalf. The appellant contended that the structures were legal and existed since 1982 onwards. The appellant further contended that those structures were not affected by the CRZ Notification which came into force on 19th February, 1991. The appellant, it is said, also pointed out that the said structures, existing in survey No. 273/3 belong to private individuals by name Mrs. Rupali Rauji Gawas, Mrs. Sarika Vishwanath Naik, Mrs. Hetal Bharat Naik, Mr. Rauji Balaram Naik, Mrs. Yeshwanti Rauji Naik, Mr. Sadguru Matonkar and Mr. Sakharam Matonkar. Out of them, Mr. Sadguru Matonkar and Mr. Sakharam Matonkar filed a writ petition No. 478/2012 in the Hon'ble High Court of Bombay at Goa. They claimed to be owners of two (2) of the structures bearing House No. 520/B (previously House No. 118) and House No. 520/C (previously House No. 119). 5. According to the appellant, the impugned order issued by the respondent is illegal and improper. The structures are not affected by the CRZ Notification in as much as they were standing on the land survey No. 273/3 since 1982 or even prior thereto. The respondent did not conduct fair enquiry prior to passing the impugned order. 6. The respondent, in fact, after issuing the impugned order dated 22nd June, 2012, subsequently issued letter dated 17th July, 2012 to the Directorate of Settlement and Land Records for furnishing of Survey and Map of the structures, The requisition so made by the respondent was with a view to obtain additional evidence after passing the impugned order. The impugned order is bad in law in as much as all the owners of the structures were not joined as parties to the proceedings initiated by the respondent. Consequently, the appellant seeks quashing of the impugned order. 7. The respondent denied truth into material averments made by the appellant. According to the respondent, all the seven (7) structures pointed out in the show cause notices are newly constructed for commercial purpose. It is denied that the structures were in existence prior to the CRZ Notification of 1991. Consequently, the appellant seeks quashing of the impugned order. 7. The respondent denied truth into material averments made by the appellant. According to the respondent, all the seven (7) structures pointed out in the show cause notices are newly constructed for commercial purpose. It is denied that the structures were in existence prior to the CRZ Notification of 1991. It is also denied that certain Mundkars were in possession of structures situated on the land survey No. 273/3. Though, the respondent admits existence of three (3) structures as indicated in survey plan dated 3rd January, 2011 yet it is contended that those residential and dilapidated structures have been converted by the appellant for commercial use. The respondent further alleges that the appellant got constructed seven (7) structures within CRZ area in blatant violation of the Regulations in this behalf. The respondent alleges that second show cause notice was issued to the appellant after receiving report from the Deputy Collector & SDO (Pernem). The site was visited by the Mamlatdar who found that all the structures were newly constructed by the appellant. The respondent further submits that the residential houses No. 520/B and 520/C are not the same as shown in the show cause notices and they are the houses of Mr. Sakharam Matonkar and Mr. Sadguru Matonkar which are protected under the Status quo order issued by the Hon'ble High Court of Bombay, Bench at Goa. The respondent further relies upon the statement of Mr. Sachin Naik who appeared during inquiry along with the Manager Mr. Sudesh Sawant, in response to the show cause notice on behalf of the appellant. It is pointed out that Mr. Sachin Naik, who is Director of the appellant admitted that there was no approval from the CRZ authority and other authorities for construction of G+1 structure and other houses. It is also pointed out that photographs of the construction situated on the land in survey No. 273/3 were shown to said Mr. Sachin Naik which he acknowledged as the property which was to be utilized for the commercial purpose of the appellant i.e. M/s Riva Beach Resort Pvt. Limited. The respondent, therefore, maintains the stand that all the seven (7) structures are violative of the CRZ Notification and liable to be demolished. On basis of such averments, the respondent sought dismissal of the Appeal. 8. We have heard learned counsel for the parties. The respondent, therefore, maintains the stand that all the seven (7) structures are violative of the CRZ Notification and liable to be demolished. On basis of such averments, the respondent sought dismissal of the Appeal. 8. We have heard learned counsel for the parties. We have carefully scrutinized the available record and the documents. In our opinion, the following points arise for decision in this Appeal : i. Whether it is proved that the seven (7) structures as indicated in the show cause notices, served on the appellant, and shown in the survey map, are the constructions raised after the CRZ Regulations of 1991? ii. Whether it is proved that the said structures were in existence prior to the CRZ Notification of 1991 and were in possession of certain Mundkars as alleged by the appellant? iii. Whether the impugned order is legal. proper and correct? 9. The learned counsel for the appellant submitted that under the Goa, Daman and Diu, Mundkars (Protection from Eviction) Act, 1975 (for short, 'Mundkars Protection Act, 1975) and Rules 1977 made thereunder, the structures existing on the land survey No. 273/3 are required to be protected since they existed prior to the CRZ Notification of 1991. The learned counsel further points out that existence of three (3) structures is conspicuous from Survey Map dated 3rd January, 2011 (Pg-173) drawn by the Directorate of Settlement and Land Records (for short, DSLR), Panaji, Goa. The learned counsel further invited our attention to the interim order dated 17th July, 2012 passed by the Hon'ble High Court of Bombay, Bench at Goa in W.P. No. 478/2012. He contended that the respondent requested the DLSR vide letter dated 17th July, 2012 for carrying out ground level survey and mapping in respect of the existing structures only because there was confusion regarding location of the old structures. The learned counsel for the appellant would submit that the sale deeds executed in favour of the appellant also show structure of two existing houses as described therein. The counsel submits that there is sufficient record to infer existence of old structures on land in survey No. 273/3 prior to the CRZ Notification of 1991. He argued that the respondent failed to prove the alleged new construction on either property referred in the show cause notice. He urged, therefore, to allow the appeal and quash the impugned order. 10. Per contra, Mr. He argued that the respondent failed to prove the alleged new construction on either property referred in the show cause notice. He urged, therefore, to allow the appeal and quash the impugned order. 10. Per contra, Mr. V. Madhukar, learned counsel for the respondent, would submit that the seven (7) structures referred in the show cause notices are newly constructed for commercial use of the appellant. He submits that the subsequent letter issued by the respondent was just to confirm the nature of the construction. He points out that the revenue record does not reflect names of the Mundkars and therefore it is clear that no structure was in the occupation of any Mundkar. Learned counsel further submits that the two (2) houses bearing house No. 520/B and 520/C are required to be protected but the same are not covered by the show cause notices issued by the appellant and those are the house properties in possession of third parties, by name, Mr. Sakharam Matonkar and Mr. Sadguru Matonkar. 11. Before we proceed to examine the relevant record, let it be noted that the order dated 26th June, 2012, which is subject matter of the present Appeal, shows that it pertains to all ongoing constructions, G+1 structure and the seven (7) structures, as shown in the third column captioned as "Type of Construction". Thus, by show cause notice dated 23rd October, 2009, the appellant was made aware of the seven (7) illegal constructions which were ongoing at the relevant time. The specific stand of the appellant is that certain old structures of Mundkars were already standing on the land survey No.273/3 prior to the CRZ Notification of 1991 and as such protection is available to the same. it may be useful to reproduce a part of the relevant averments indicated in paragraph-5(iv) of the Appeal Memo. The appellant states : "that it is further stated that the appellant has entered into oral agreements with some of the persons who had structures on the property now required by the appellant for the use of the resort". 12. From the above averments, it is manifest that the appellant seeks to rely upon certain oral agreements pertaining to those structures standing on the property which were under occupation of "some of the persons". The appellant did not give details of such oral agreements nor names of so called persons are revealed. 12. From the above averments, it is manifest that the appellant seeks to rely upon certain oral agreements pertaining to those structures standing on the property which were under occupation of "some of the persons". The appellant did not give details of such oral agreements nor names of so called persons are revealed. In other words, the appellant has adopted vague stand. The very fact that the appellant alleges "Oral Agreements" without giving details of the persons is indicative of the sleeper stance adopted in this context. It is further worthy to be noted that there is absolutely no material to infer that such oral agreements were reached between certain Mundkars and the appellant. 13. The appellant failed to produce any revenue record in support of the allegation that the particular structures standing on survey No. 273/3 had been in possession of Mundkars nor their names are shown in the Appeal Memo. Not only that such details are conspicuously absent from the pleadings mentioned in the Appeal Memo but during the course of the enquiry before the respondent. Mr. Sachin Naik, who is the Director and Mr. Sudesh Sawant who is the Manager of the appellant's beach Resort, failed to give details of such oral agreements. What appears from the record is that both of them admitted the fact that there was no approval for construction of G+1 structure shown in the show cause notices. The statement of Mr. Sachin Naik was to effect that the constructions were to be used to put up a Hotel in that place. In other words, the appellant failed to place any reliable record before the respondent so as to show that all the seven (7) structures existed prior to the CRZ Notification of 1991. 14. At this juncture, it may be noted that the Goa, Daman and Diu. Mundkars (Protection from Eviction) Act, 1975 (for short. 'Mundkars Protection Act, 1975) categorically provides for maintenance of a register of Mundkars. The Mamlatdar is under legal obligation to issue public notice before preparation of such register. The entry made in such register of Mundkars will carry presumptive value unless contrary is proved or a new entry is lawfully substituted thereafter. For ready reference, Section 29 of the Mundkars (Protection from Eviction) Act, 1975 is reproduced below to the extent it is necessary : "Sec.29 : 1. The entry made in such register of Mundkars will carry presumptive value unless contrary is proved or a new entry is lawfully substituted thereafter. For ready reference, Section 29 of the Mundkars (Protection from Eviction) Act, 1975 is reproduced below to the extent it is necessary : "Sec.29 : 1. "In respect of every village, the Government shall cause a register of Mundkars to be prepared and maintained in the prescribed manner. 2. The register shall contain the following particulars, namely :- (a) the particulars and description of the dwelling house; (b) the location of the dwelling house; (c) the name and address of the bhatkar; (d) the name and address of the mundkar; (e) the nature and extent of service, rendered to the bhatkar or the amount of ground rent if any paid; (f) the occupation of the mundkar; (g) the rights referred to under Section 6; and (h) such other particulars as may be prescribed. 3. The register shall be prepared and maintained by the Mamlatdar after such inquiry as may be prescribed. 4. The Mamlatdar shall, before the preparation of the register, publish a notice, in every revenue village inviting applications from the mundkars for registration and to be presented before such date as may be specified in the notice or such further time as may be allowed by him." 15. Now, it is pertinent to note that the appellant failed to produce any extract of the register of Mundkars in order to establish the fact that certain Mundkars were in possession of residential houses as alleged by him, before commencement of the CRZ Notification of 1991. What appears from the record is that only three (3) structures existed when the survey map was drawn by the DLSR in 1972. The appellant failed to show as to when the other seven (7) structures were constructed. The respondent has placed on record the communication dated 18th February, 2010 issued by the Deputy Collector & SDO, Pernem-Sub-Division and Additional Collector, North Goa District. It appears that the Deputy Collector conducted enquiry and also obtained report of Mamlatdar. The report of Mamlatdar clearly showed that the constructions were new and carried out recently. The Deputy Collector came to the conclusion that the seven (7) structures were illegally raised without obtaining prior permission from the CRZ Authority. It appears that the Deputy Collector conducted enquiry and also obtained report of Mamlatdar. The report of Mamlatdar clearly showed that the constructions were new and carried out recently. The Deputy Collector came to the conclusion that the seven (7) structures were illegally raised without obtaining prior permission from the CRZ Authority. Thus, an independent enquiry conducted by the Mamlatdar and Deputy Collector also collaborates the contention of the respondent. 16. The appellant has placed on record copies of the three (3) sale deeds. The description of the property shown in the sale deeds do not tally with the structures shown in the survey map which is duly authenticated by the DSLR. It appears that the Directorate of Settlement and Land Records prepared survey map on 3rd January, 2011 when only three (3) structures were noticed on survey No. 273/3. How come that subsequently other structures as well as one new structure of G+1 was brought up, is not clearly established by the appellant. On the other hand, communication dated 17th August, 2009 issued by the appellant shows that there was no single structure of G+1 in the property under survey No. 273/3. Thus, the appellant disowned his concern in the context of the ongoing construction of structure of G+1 area in survey No. 273/3. The appellant has placed on record copies of receipts pertaining to payment of property tax to Village Panchayat, Mandrem. No doubt, the said receipts are of 1989-90. Still, however, it is difficult to establish identity of the house property for which such payment of taxes is said to have been made. So also, it is difficult to say whether those house properties are standing on survey No. 273/3 and are the same properties out of seven (7) constructions shown in the show cause notices issued to the appellant. In absence of any authenticated entries in the register of Mundkars, we find it difficult to reach conclusion that the houses existed on survey No. 273/3 prior to the CRZ Notification of 1991. The record reveals that there were only three (3) old/dilapidated structures standing on a survey No. 273/3 and subsequently seven (7) more structures were constructed by the appellant. 17. Not only that there are no entries in the concerned Mundkars' Register but there is absolutely no record to show that construction permissions were obtained by either of them while making constructions in question. 17. Not only that there are no entries in the concerned Mundkars' Register but there is absolutely no record to show that construction permissions were obtained by either of them while making constructions in question. As stated before, the survey map drawn by the DSLR goes to show that there were only three (3) constructions on land survey No. 273/3 in 1972-73 as well in 2011. So, the appellant was under obligation to establish as to when the other structures were brought up and that too after due legal permissions obtained from the competent authority. The protection is unavailable when the constructions are illegal. The appellant has merely produced some of the tax receipts without producing any record regarding identities of such properties which can be matched with the seven (7) structures in dispute. In any case, the appellant has not at all discharged the burden of proof. Since all the seven (7) structures admittedly come within the NDZ area, the impugned order cannot be said to be improper and illegal. 18. In view of the forgoing discussion, we are of the opinion that the appellant had made construction of seven (7) structures for commercial use of the beach Resort. The vague contention of the appellant is uncorroborated by any tangible material and therefore will have to be and must be rejected. In this view of the matter, we are of the opinion that the appeal is destitute of merits. 19. In the result, the appeal is dismissed with direction that the house properties bearing structure 520/B and 520/C may be identified and specified by the respondent through the government authority i.e. DSLR and the same may be protected subject to the final order of the Hon'ble High Court of Bombay, Bench at Goa in W.P. No. 478/2012. The appeal is accordingly disposed of with no order as to costs. Appeal dismissed.