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2021 DIGILAW 198 (BOM)

SAILESH S/O RAMANLAL MAHIMTURA v. STATE OF GOA

2021-01-29

DAMA SESHADRI NAIDU, M.S.JAWALKAR

body2021
JUDGMENT : DAMA SESHADRI NAIDU, J. :— Four persons, who are the petitioners here, bought a piece of land and wanted to raise structures on it. They approached the Goa State Committee on Coastal Environment (GSCCE) for approval because the property is adjacent to the seacoast. Then, on 29-11-1996, GSCEE met and decided to approve. That approval was actually granted in February, 1997, though. On the same day, the Town and Country Planning Department (TCP) also issued a No-Objection Certificate. Next year, in September, 1998, the W. P. No. 184 of 2018 decided on 29-1-2021. (Panaji-Goa) Village Panchayat, too, granted the licence. Based on these permissions and licences, the petitioners secured conversion sanad and commenced the construction. It was in March 1998. 2. In 2000, when the construction was in progress, the villagers of Velsao filed Writ Petition No.154 of 2000. They wanted the Court to direct the Goa Coastal Zone Management Authority (“GCZMA”), the successor to GSCEE, to consider their grievance about the construction. The villagers’ complaint concerns whether the petitioners’ construction is within 200 mts from the High Tide Line (HTL). Through its judgment dated 10-7-2000, this Court directed the GCZMA to consider the villagers’ objections. 3. After considering the villagers’ objection, in October, 2000 GCZMA issued a stop-work order, pending the determination of HTL. Though a decade elapsed, the GCZMA kept the issue on the back burner. Then the petitioners filed Writ Petition No. 473 of 2013; they wanted a direction to the GCZMA on the stop-work order issued about 13 years ago. The Court ordered accordingly. 4. In September, 2014, after hearing all the stakeholders, the GCZMA withdrew the stop-work order. It has held that the construction is beyond the nodevelopment zone, that is beyond 200 mts. But the village panchayat, in January 2015, wrote to the GCZMA for a plan of demarcation, besides insisting that they should hold a joint site inspection. The GCZMA did not respond, however. 5. In February, 2016, the Town and Country Planning Department granted technical clearance. The next year, in the same month, the GCZMA endorsed the construction plans. Meanwhile, the licence village panchayat initially gave expired; it was because of the stop-work order the GCZMA had issued earlier. No other reason. So, in April, 2017, the petitioners applied to the Village Panchayat for its renewal. The next year, in the same month, the GCZMA endorsed the construction plans. Meanwhile, the licence village panchayat initially gave expired; it was because of the stop-work order the GCZMA had issued earlier. No other reason. So, in April, 2017, the petitioners applied to the Village Panchayat for its renewal. Faced with the petitioners’ application for the licence renewal, the Village Panchayat wanted the GCZMA and TCP to be part of joint site inspection it had proposed. Neither turned up. But the Village Panchayat went ahead and had an inspection in the petitioners’ presence. On 16-5-2017, it rejected the petitioners’ application for renewal. 6. The Village Panchayat’s action prompted the petitioners to file Writ Petition No. 521/2017. Eventually, on 8-9-2017, based on the petitioners’ plea and the Panchayat’s defence, this Court set aside the Village Panchayat’s order, dated 16-5-2017; it ordered a joint site inspection. Besides, this Court wanted the Village Panchayat to consider the petitioners’ application for renewal “in accordance with the law in the context of NOC/permissions/clearance granted.” 7. On parallel lines there took place another development. In November, 2017, one Shri Max D’Souza, a villager, complained to the TCP that there was a discrepancy in the road alignment in the petitioners’ construction. Then, when put on notice, the petitioners submitted a letter of clarification to the TCP. After some more correspondence between the TCP and the petitioners, in January, 2018 TCP kept the technical clearance in abeyance and directed the petitioners to submit a revised plan. 8. In December, 2017, the Village Panchayat issued a show-cause notice to the petitioners. It was based on the joint inspection report it had secured. Immediately, the petitioners replied. Eventually, on 10-1-2018, the Village Panchayat passed the impugned order refusing to renew the licence. 9. Under these circumstances, the petitioners have filed this Writ Petition, challenging not only Village Panchayat’s rejection to renew the licence but also the TCP’s decision to keep the technical clearance in abeyance. Yet pending the Writ Petition, the petitioners submitted a revised plan and secured the TCP’s approval. Thus, the issue Max D’Souza raised about the road misalignment ended. Only the Panchayat’s rejection has remained. Submissions : Petitioners : 10. In the above factual background, Shri S. S. Kantak, the learned Senior Counsel for the petitioners, has submitted that the Village Panchayat refused to renew the licence it had earlier granted. Thus, the issue Max D’Souza raised about the road misalignment ended. Only the Panchayat’s rejection has remained. Submissions : Petitioners : 10. In the above factual background, Shri S. S. Kantak, the learned Senior Counsel for the petitioners, has submitted that the Village Panchayat refused to renew the licence it had earlier granted. The rejection was on two counts : (i) that the petitioners’ construction is within 200 mts of HTL and (ii) that there exist sand dunes on the site of construction. 11. According to Shri Kantak, prompted by the villagers, the Panchayat obstinately refused to renew the licence. Its refusal has resulted in this Court’s direction for a joint inspection of the site by the GCZMA and the Village Panchayat. The learned Senior Counsel stresses that the Court has also directed the Village Panchayat to act in accordance with the law once it secures the jointinspection report. 12. To elaborate his submissions, Shri Kantak points out that Village Panchayat wants to arrogate to itself powers it does not possess. As to the sand dunes, even the joint inspection report clarifies that they do not exist on the petitioners’ land, which is plain. But the Village Panchayat has conjectured their existence based on the rest of the topography. It has no base to assume that the petitioners must have disturbed the sand dunes on their site when they prepared it for construction. 13. As to the demarcation of HTL, Shri Kantak strenuously contends that in 1997 the GSCCE relied on Naval Hydrographic Survey (“NHS”) and granted the permission. Now the Village Panchayat wants to use the HTL drawn more than a decade later by National Institute of Oceanography (“NIO”). According to the learned Senior Counsel, with passing time, the coastline may have shifted, and that shifting should not affect the permissions the petitioners secured in 1997. He has also pointed out that in the Writ Petition the petitioners filed, the Village Panchayat insisted only on sand dunes but not on HTL. 14. In the end, Shri Kantak draws our attention to a recent Division Bench judgment of this Court. To that judgment, one of us (Smt. M. S. Jawalkar, J) is a party. According to the learned Senior Counsel, this Court has declared that as to the sand dunes, the jurisdiction exclusively lies with the GCZMA. 14. In the end, Shri Kantak draws our attention to a recent Division Bench judgment of this Court. To that judgment, one of us (Smt. M. S. Jawalkar, J) is a party. According to the learned Senior Counsel, this Court has declared that as to the sand dunes, the jurisdiction exclusively lies with the GCZMA. In other words, it is beyond the Village Panchayat’s purview to refuse the licence based on a dispute regarding dunes. He also wants the Court to note that the HTL drawn by the NHS has never been doubted even by the Village Panchayat. Instead, it only wanted the GCZMA to reconsider the whole issue by relying on the second HTL report by NIO, another scientific establishment. So, the learned Senior Counsel urges this Court to allow the writ petition. The State : 15. Shri D. Shirodkar, the learned Addl. Govt. Advocate for the respondent Nos. 1 to 3, has supported the submissions advanced by the petitioners’ counsel. Then, he has drawn our attention to the affidavit GCZMA filed. According to him, the GCZMA has followed the law and granted permission. And it still stands by the approval it has granted. He has also pointed out that the Village Panchayat, in its first rejection, has only stressed that the GCZMA must have had proper verification of the plan with reference to the HTL as prepared by NHS. According to him, in the first place, the Village Panchayat never contradicted the first report; therefore, it is estopped from taking advantage of a subsequent report not existed when GSCCE, GCZMA’s predecessor, had approved the plan. The Village Panchayat : 16. Shri Coutinho, the learned counsel for the Village Panchayat, has submitted that even in the Writ Petition the petitioners filed, the Village Panchayat has highlighted that it refused to renew the licence on both counts: the existence of sand dunes and also the discrepancy in HTL. In other words, the petitioners are wrong in contending that the Village Panchayat has insisted only on the sand dunes. But he has fairly submitted that this Court’s judgment has confined itself to the sand dunes; its direction for the joint inspection refers only to the sand dunes, not HTL. 17. In other words, the petitioners are wrong in contending that the Village Panchayat has insisted only on the sand dunes. But he has fairly submitted that this Court’s judgment has confined itself to the sand dunes; its direction for the joint inspection refers only to the sand dunes, not HTL. 17. Shri Coutinho has also submitted that even in the GSCCE’s approval, there is a specific observation that the petitioners must comply with all the environmental standards and safeguards if it wanted to proceed with the construction. But the Village Panchayat has found that the petitioners have violated those norms. To elaborate, the learned counsel has submitted that if the topography is examined, as it was found in the joint inspection, the rest of the area is replete with sand dunes; only the petitioners’ land is plain. That means, even the petitioners’ land must have had those sand dunes before the construction began. Apparently, during the construction, the petitioners must have levelled the land. 18. Shri Coutinho has also further contended that when the Village Panchayat inspected the land, both GCZMA and TCP refused to join. In its inspection, the Village Panchayat has found the petitioners’ land cutting the HTL at more than one place—if we take HTL prepared by the NIO. Even as to the joint inspection report prepared by GCZMA after this Court’s direction, there is no finality to the findings. In fact, the Court wanted the experts to consider the material and decide. 19. To conclude, Shri Coutinho has submitted that the Village Panchayat had been well within its powers when it refused to renew the licence. As a collateral submission, he has also pointed out that no licence could be renewed once it has statutorily lapsed. The petitioners ought to have applied for a fresh licence. Thus, he contends that the Village Panchayat’s impugned order is unassailable. 20. Heard Shri S. S. Kantak, the learned Senior Counsel for the petitioners; Shri D. Shirodkar, the learned Addl. Govt. Advocate for the respondent Nos. 1 to 3; and Shri C. A. Coutinho, the learned counsel for the respondent No. 4. Discussion : 21. Though elaborate arguments have been advanced on either side, we reckon the controversy concerns only two aspects. One concerns the HTL and the other sand dunes. We will take up the second one first: sand dunes. 22. 1 to 3; and Shri C. A. Coutinho, the learned counsel for the respondent No. 4. Discussion : 21. Though elaborate arguments have been advanced on either side, we reckon the controversy concerns only two aspects. One concerns the HTL and the other sand dunes. We will take up the second one first: sand dunes. 22. Shri Kantak, the learned Senior Counsel, has brought to our notice that this Court on 2-12-2020 rendered a judgment in Beachfront Resorts Pvt. Ltd. vs. State of Goa, LD-VC-CW-245-2020. In that case, an identical issue came up for consideration. As to the facts, on inspection the Village Panchayat found that there existed sand dunes; so it refused the licence. But a Division Bench of this Court has held that the GCZMA was aware of those sand dunes, but it granted the permission. In that process, GCZMA issued elaborate directions to the petitioners in that writ petition not to disturb them while it would proceed with the construction. In this process, Beachfront Resorts Pvt. Ltd., has eventually held : 14. From the aforesaid, it is evident that the GCZMA was quite conscious of existence of the sand dunes and, therefore, before granting its approval, imposed stringent conditions upon the Petitioners to ensure protection of such sand dunes. The permission to put up the temporary structures obviously relates to the portion not covered by the sand dunes indicated in the inspection report. 15. Since, the GCZMA is the proper Authority to comment upon the issue of sand dunes, we feel that the Panchayat was not at all justified in revoking its earlier NOC on the ground that a portion of the property is affected by the sand dunes. The first ground for revocation is, therefore, unsustainable. 23. From the above extract, we gather that the GCZMA is the proper Authority to deal with sand dunes. In other words, a village panchayat has no role to play on the question of sand dunes. So Beachfront Resorts Pvt. Ltd., has found fault with the Panchayat’s revoking its earlier NOC on the grounds that a portion of the property had sand dunes. 24. Coming back to the case before us, here the petitioners’ position, we reckon, is better. On joint inspection, the Committee found that there are no sand dunes. So Beachfront Resorts Pvt. Ltd., has found fault with the Panchayat’s revoking its earlier NOC on the grounds that a portion of the property had sand dunes. 24. Coming back to the case before us, here the petitioners’ position, we reckon, is better. On joint inspection, the Committee found that there are no sand dunes. It has, in fact, noted : 1) As per demarcation of HTL done by Naval Hydrographic Department, HTL falls beyond 200 mts. 2) On the northern side and southern side, huge sand dunes are seen. 3) At the proposed site, the land is seen to be level with disturbed strata where concrete footings are seen. Proponent informed that they had completed 22 footings before getting stop order from GCZMA. 4) On Eastern side, there is a public road; and the land on either side of the road, i.e., proposed plot and other side of road, is plain and there are already dwelling units there. 5) “Since considerable time has elapsed and due to reduction of coast due to erosion”, there may be change in the present location of HTL. Government entrusted the task of assessing Beach Carrying Capacity and marking of HTL to National Centre for Sustainable Coastal Management, Chennai (NCSCM) in recent past. 25. Then, in the light of the above findings, the Committee has “concluded and recommended” thus : 1) The demarcation of HTL done by Naval Hydrographic Department was recognised as Authentic agency and accordingly approvals were given and proponent had started work. 2) Although huge sand dunes are observed on Northern and Southern sides of the proposed plot, the proposed plot and adjoining land on eastern side is plain and a public road is already existing dividing this land. 3) Since the earth on the proponent’s plot had been disturbed to accommodate concrete footings, it could not be ascertained as to whether that part of the plot was a part of sand dune. The part of the plot adjoining the public road and the plot of the land on Eastern side of the road are flat and level. 4) Considering the general topography of the area it is likely that the western side of the plot was a part of a sand dune continuous with the ones on the north and south of the plot, in the past. 4) Considering the general topography of the area it is likely that the western side of the plot was a part of a sand dune continuous with the ones on the north and south of the plot, in the past. However, Authority may deliberate and decide in the meeting before arriving at final decision. (italics supplied) 26. The Committee, to begin with, has accepted that the demarcation of HTL done by NHS was recognised as authentic. So GSCCE granted the approvals. And based on that approval, the petitioners started construction. The Committee has observed huge sand dunes on northern and southern sides of the petitioners’ plot. But the petitioners’ very plot and the “adjoining land on eastern side” are plain. A public road already exists, dividing this land. 27. The Committee has taken a pragmatic view. It has noticed that soil on the proponent’s plot was disturbed; it was to accommodate concrete footings. So it was difficult for the Committee to ascertain whether the petitioners’ plot, too, had the sand dunes. It has then conjectured as likely that the western side of the petitioners’ plot must have been a part of a sand dune “continuous with the ones on the north and south of the plot, in the past”. In the end, it has left for the authorities to deliberate and decide on the issue. 28. Thus, it is evident that the topography of the area has revealed that there are sand dunes in some parts. But the petitioners’ plot is plain. To ascertain why the petitioners’ plot is plain and out of sync with the rest of the land, the Committee hazards a guess. That said, let us not forget that the petitioners secured permission many years ago and started construction. At the inception, their construction was legitimate and continued to be so until the issue ran into a controversy. 29. Now, the Village Panchayat insists that the petitioners must have levelled those sand dunes when they undertook the construction. First, it is a conjecture. Second, we should not lose sight that when the petitioners started construction, they committed no illegalities. As we have already held, they did have valid permissions, approvals, and licences from all the authorities concerned. Thus, the presumption must be in the petitioners’ favour, for they acted within the bounds of the law. First, it is a conjecture. Second, we should not lose sight that when the petitioners started construction, they committed no illegalities. As we have already held, they did have valid permissions, approvals, and licences from all the authorities concerned. Thus, the presumption must be in the petitioners’ favour, for they acted within the bounds of the law. On the other hand, a surmise or conjecture cannot recreate a non-existent physical feature, nor can it nullify valid permissions and licences. 30. Therefore, we hold that Village Panchayat’s refusal to renew the licence on the premise that there must have been sand dunes on the petitioners’ land cannot be sustained. Once, GCZMA or its predecessor GSCCE has applied its mind on the issue; the Village Panchayat cannot take a contrary stand. At best, in any pending application before GCZMA, it may raise its objections but cannot act as a parallel power on the issue. 31. Now, we turn to the question of HTL. 32. Indeed, when GSCCE granted the approval in November, 1996, there was only one scientific survey report on HTL. And that was by NHS. We may note that even Village Panchayat neither doubted the NHS’s expertise nor questioned its HTL report. The dispute raised initially by the villagers and later by the Village Panchayat was confined to whether GSCCE had duly considered the NHS’s HTL report when it granted the approval. It is obvious that when GSCCE granted the approval, there was no other HTL report than the one prepared by NHS The NIO’s report, then, was non-existent. 33. When we examine the legality of any official act, we should examine it in the factual and legal backdrop as existed when the official acted. No later developments, unless they have retroactive effect, can affect a decision taken before. That apart, as Shri Shirodkar has pointed out, in its first letter of rejection, the Village Panchayat only insisted that the GCZMA must have strictly applied the NHS’s HTL to the petitioners’ construction plan. We reckon only as an afterthought, the Village Panchayat has brought on to the scene the HTL drawn by the NIO. 34. On the technical front, we may also note that when the petitioners file the writ petition, this Court knew the Village Panchayat raised two objections: sand dunes and HTL. We reckon only as an afterthought, the Village Panchayat has brought on to the scene the HTL drawn by the NIO. 34. On the technical front, we may also note that when the petitioners file the writ petition, this Court knew the Village Panchayat raised two objections: sand dunes and HTL. But in its judgment, the Court confined itself to the question of sand dunes and directed the joint inspection only on that count. That judgment has attained finality. So, even if we assumed any controversy about the HTL, that could not be reagitated because that issue stood rejected, at least, by implication. 35. Thus, viewed from any perspective, the Village Panchayat’s objection cannot be sustained. The rule of law as much binds a civic body as any other individual or entity. It cannot display obstinacy in the name of public displeasure on an issue. Shifting sands of opinions and undulating notions of right and wrong are unsafe as the standards of civic administration. It is the law and law alone that shall prevail. The Village Panchayat initially granted the licence. For reasons unconnected with the Panchayat, the petitioners’ licence expired. To come out clear of the controversy, the petitioners, first, went to GCZMA, the apex body on coastal environmental issues. GCZMA, in turn, examined the issue and reiterated its earlier position: that the permissions it earlier granted are legal and valid. 36. Then, the petitioners approached the Village Panchayat for the renewal of the licence. At that juncture, the Panchayat objected. The objection concerns the issues over which it has no jurisdiction. The issue reached the Court, which ordered a joint-inspection by a committee of experts. But the Committee’s report has not satisfied the Village Panchayat. It has gone on inventing reasons. 37. We appreciate the Village Panchayat concern on environmental issues. But that concern must be displayed within the four corners of the law. For the Panchayat, the issue of environment cannot be a device against the law; it ought to be a device for the law. With nothing more, its obstinacy does not augur well for a polity bound by the rule of law. 38. We, therefore, allow this writ petition. That is, we set aside the impugned order, dt.10-1-2018. For the Panchayat, the issue of environment cannot be a device against the law; it ought to be a device for the law. With nothing more, its obstinacy does not augur well for a polity bound by the rule of law. 38. We, therefore, allow this writ petition. That is, we set aside the impugned order, dt.10-1-2018. Consequently, we direct the Village Panchayat to consider the petitioners’ application for renewal of licence without insisting again on either the sand dunes or HTL, for these issues have attained finality. 39. At this juncture, the petitioners’ counsel wants the Village Panchayat to consider the petitioners’ application in a time frame. So, we hold that the village panchayat shall consider the petitioners’ application in two months after its receiving this judgment. At any rate, the learned Senior Counsel has also pointed out that because of the efflux of time, the petitioners have revised their plan within the area specified and approved by the TCP. For the renewal of the licence, the petitioners want to submit the revised plan within one week for the Village Panchayat’s perusal. Once the petitioners submit the revised plan, the Village Panchayat will consider the petitioners’ application for the renewal of the licence or fresh licence, if renewal faces any technical hassles, in two weeks from that day. Petition allowed.