BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE. APPLICATION No. 70/2014(WZ)

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1 BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE APPLICATION No. 70/2014(WZ) CORAM: Hon ble Mr. Justice V.R. Kingaonkar (Judicial Member) Hon ble Dr. Ajay A. Deshpande (Expert Member) B E T W E E N: George B. Fernandes, Major, R/o. H.No.4/43(17012), Porbawado, Calangute, Bardez Goa..Applicant A N D 1. The State of Goa, Through : Chief Secretary, Secretariat, Porvorim, Goa. 2. The Town Planner, Town and Country Planning Department, Mapusa, Bardez-Goa 3. Village Panchyat of Calangute, Through : Secretary, Calangute, Bardez Goa. (J) Application No.70/2014 (WZ) 1

2 4. The Goa Coastal Zone Management Authority, Through : Member Secretary, Office at Saligao, Bardez-Goa. 5. Mrs. Felicidade Veronica Sequeira, Major, R/o. Gaurawado, Calangute, Bardez Goa. 6. Mr. Joseph Sequeira, Major, R/o. Gaurawado, Calangute, Bardez-Goa. Respondents Counsel for Applicant : Mrs. Supriya Dangare, Mrs. Shrilekha Golekar, Counsel for Respondent No. 1,2 & 4 : Mrs. Fawia Mesquita, w/ Mr. D. Lawande, Counsel for Respondent No.5 & 6 : Mr. Pankaj Vernekar Mr. D. Lawande, DATE : 17 th December, 2014 J U D G M E N T 1. The Applicant has filed this Application challenging the order dated passed by Goa (J) Application No.70/2014 (WZ) 2

3 Coastal Zone Management Authority (GCZMA)-Respondent No.4, thereby granting permission to Respondent Nos.5 and 6 for regularization of alleged illegal structure constructed by them, on the property under Survey No.146/28 of Calangute village, Bardez Goa. The Applicant states that the said property is in CRZ area being within 500m from High Tide Line (HTL). Respondent Nos.5 and 6 demolished the old existing structure situated in the said property belonging to one Mrs. Maria Madgalene Sequeira and constructed a new building thereupon. The Applicant alleges that this construction is illegal and he had lodged complaints with Respondent Nos.1 to 4 as regards the said construction. Based on his complaint when the Authorities initiated action, the Respondent-5 filed W.P. No. 176/2009 in Hon ble High Court of Bombay at Goa, and the Applicant filed application for intervention. Thereafter, the Respondents withdrew the Writ Petition with liberty to approach Apex Court. The Respondent-5 then approached Apex Court by filing W.P. No.Civil 511/2009 wherein also, the Applicant filed application for intervention, and finally, the Respondents withdrew the writ petition. The Applicant states that thereafter the Respondent- 5 and 6 filed Writ Petition No.807/2009 in the Hon ble High Court of Bombay at Goa against the directions for demolition of structure issued by GCZMA (J) Application No.70/2014 (WZ) 3

4 and when the said petition came up for hearing before the Hon ble High Court on , Respondent Nos. 5 and 6 submitted that they have filed an Application for regularization dated before the GCZMA which is under consideration and therefore, withdrew the petition with liberty to challenge the order, if required. The GCZMA had made a statement before the High Court that they shall consider the regularization Application in accordance with the law expeditiously. 2. The Applicant further submits that he has filed necessary objections before the GCZMA against the regularization of the construction of Respondent Nos.5 and 6, by filing written submissions dated It is the case of the Applicant that he has filed a PIL W.P. No. 16/2013 on , before the Hon ble High Court of Bombay at Goa with regard to the construction and also, as the Respondent No.4 was not taking any action in the matter. Subsequently, during the hearing on 3 rd September 2013 the Hon ble High Court, noting the order of GCZMA dated allowed, the Applicant to approach the N.G.T. for challenging the order of GCZMA. The Applicant submits that he has filed a Misc. Civil Application for review in the said WP which was rejected on 7 th February 2014 and hence, this Application has been (J) Application No.70/2014 (WZ) 4

5 filed under Section 14 and 15 challenging the GCZMA order for regularization of the structures. 3. Respondent Nos.4, 5 and 6 have raised preliminary objections on ground of limitation as well as selection of appropriate remedy under the N.G.T. Act. It is the contention of the Respondent Nos.5 and 6 that the entire Application has been drafted as an Appeal and even the prayer is specific for quashing and setting aside the impugned order dated and therefore, this is not an Application under Section 14 and 15 of N.G.T. but clearly an Appeal under Section 16 of N.G.T. Act. The learned counsel for GCZMA also argued that the Applicant had challenged the impugned order previously but had failed. 4. The learned counsel for Respondent Nos. 5 and 6 also raised the plea of limitation as the Applicant himself has submitted on record in para 28 of Application that the cause of action for filing this Application first arose on when the Applicant first learnt about the impugned order dated passed by the Respondent No.4. He contends that even if the Application is considered under Section 14, the Application which is filed on , is clearly outside the period of limitation of six months and even with additional grace period of 2 months and hence, (J) Application No.70/2014 (WZ) 5

6 the Application is time barred. The Application does not have any prayer regarding the relief of compensation or restitution neither the Applicant has any locus-standie as stipulated in Section 15 of N.G.T. Act and therefore, section 15 cannot be applied in the present case. The learned Advocate, therefore, submits that the Application is time barred, even if, it is considered as Application under Section 14 and therefore, it should be summarily dismissed. 5. The learned Advocate for Applicant tried to canvas that the impugned order is an order for regularization of structure already constructed and as such, does not fall within the ambit of Section 16 of N.G.T. Act. Therefore, it needs to be considered under Section 14 as a dispute where a substantial question related to environment is involved. The learned Advocate also tried to advance an argument that though the Hon ble High Court on 3 rd September 2013 directed the Applicant to approach N.G.T., Applicant had opted for a legal remedy by filing a Misc. Civil Application which was filed for review of the High Court s order. However that Misc. Civil Application was rejected by the Hon ble High Court on 7 th February She, therefore, contends that though the knowledge of the impugned order was received on (J) Application No.70/2014 (WZ) 6

7 2013, the limitation will trigger only on 7 th February 2014 and considering the provisions of Section 14 of N.G.T. Act, the Application is well within the limitation period. 6. We have gone through the submissions made by the parties and arguments of the learned Advocates. The present litigation is continuing since the year 2009 and had even reached the Apex court. The Applicant has made complaints to the authorities and GCZMA against alleged construction. After the directions of the Hon ble High Court in W.P. No.807/2009, the GCZMA has considered the matter afresh where the Applicant had submitted the written objections and therefore, we are of the opinion that the Application was well informed about the ongoing litigations as well as the status of proposal of Respondent Nos. 5 and 6 with the GCZMA. The order of Hon ble High Court in PIL W.P. No.16/2013 dated 3 rd September 2013 is very clear and is reproduced below: The counsel for the State submits that Goa Coastal Zone Management Authority has passed an order dated 8/04/2013 and an appeal against the said order would lie to the National Green Tribunal. 2. The petitioner may resort to the appropriate remedy if he so desires. The petitioner may approach the National Green Tribunal. The petition would be heard after the petitioner exhausts the remedy (J) Application No.70/2014 (WZ) 7

8 against the order passed by the Goa Coastal Zone Management Authority. 3. S.O Subsequently, it appears that the Applicant has preferred M.C.A.No. 958/2013 and the Hon ble Divisional Bench of the High Court, rejected the same on 7 th February 2014 by order as under : The petitioner has been directed under the impugned order sought to be reviewed dated 3/09/2013, to approach the National Green Tribunal by way of appeal challenging the order regularizing the structure of respondents no.6 & 7 by the Goa Coastal Zone Management Authority. All the respondents including respondents no.6 & 7 contend that the National Green Tribunal alone would have jurisdiction to decide the question of regularization of a structure, which falls within the CRZ zone. Hence, the Misc. Civil Application which is in the nature of a review petition is rejected. 8. From the above, it is clearly observed that the order dated 3 rd September 2013 gave a liberty to the Applicant to file an Appeal against the said order before the N.G.T. The subsequent filing of M.C.A. for review cannot give a fresh ground for extension of limitation as the orders (J) Application No.70/2014 (WZ) 8

9 of the Hon ble High Court dated 3 rd September 2013 are explicit and crystal clear. We, therefore, cannot accept the argument of the Applicant that the limitation will trigger only as on 7 th February 2014, i.e. date of disposal of the said MCA. 9. Now, the another aspect for consideration is considering whether the present Application is an Application under Section 14, 15 or an Appeal under Section 16 of N.G.T. Act? The prayer in Application is reproduced below: a) That on perusal of records and proceedings of this case, this Hon ble Tribunal may be pleased to quash and set aside the impugned order dated passed by the Respondent No.4 bearing reference No.GCZMA/BAR/CAL/07/99 and direct demolition of the illegal structure constructed by the respondents 5 and 6 in the property bearing survey No.146/28 of village Calangute, Bardez, Goa. 10. It is clear from the prayer that there is no claim for restitution and restoration of environment and therefore, the Application cannot be considered under Section 14 rw 15 of the N.G.T. Act. Even if the Application is treated as an Application U/s. 14, the same is time barred, even by considering the date of Hon ble High Court order i.e. 3 rd September 2013 as a triggering point, instead (J) Application No.70/2014 (WZ) 9

10 of as submitted by Applicant. The Applicant claims to be the member of NGO which is actively involved in environmental and social issues affecting the village of Colangute. It is, therefore, expected that such environmentally and socially, active person should have been more vigilant and careful; and should have heeded to the directions of the Hon ble High Court by approaching this Tribunal immediately after the orders dated 3 rd September We cannot, therefore, entertain this Application as it is time barred. 11. Hence, the Application is dismissed. No costs....,jm (Justice V. R. Kingaonkar)...., EM (Dr. Ajay. A. Deshpande) Date : 17 th December 2014 (J) Application No.70/2014 (WZ) 10