NGT ORDERS DEMOLITION OF SYLVESTER HOTEL!

The National Green Tribunal in its order dated 22/5/22 has ordered demolition of Sunset Cottages which allegedly have been built by Sylvester D’Costa in violation of the CRZ rules. The NGT will impose a fine of Rs. 5 lac/day if the illegal structures which have violated coastal management rules are not demolished within 50 days.

COURT ORDER:

Learned Counsel for Appellant drew attention to 4th point in the observation. It is recorded that unit operates on 20 rooms i.e. Block A to D and Block E of additional 8 rooms belongs to Mrs. Elvira D’Costa and which is not part of the unit Sunset Cottages. No records were produced for the same. Then learned Counsel has again drawn our attention to page-40 of the paper book which is part of the order of GCZMA, regarding that the GCZMA Members after perusing the records observed that there were 20 rooms in the structures, being used for tourist/commercial purpose. From the documents submitted, it were 20 rooms for the structures, used for touristic/commercial purpose. Barring 02 rooms, there were no approvals for other 18 rooms for tourist/commercial purpose. From the documents submitted it was found that a structure did exist prior to 1991, it appears to have been extended time to time. Having drawn attention to this it was argued by him that there was no map showing the said construction, hence there is ambiguity in the present case as to which 18 rooms have been demolished and 2 rooms were left to be demolished. Therefore, it is apparent that 2 rooms existed on the said property which were of the year prior to 1991 and could not have been ordered to be demolished. Thereafter, learned Counsel for the Appellant drew attention to page-276 of the paper book which is part of Field Inspection Report of the property in question at the direction of GCZMA by an Expert Member along with field surveyor of DSLR, who visited the site on 13.01.2019 in presence of the Appellant, wherein following observations have been made: “

Observations:

  1. As per the mandate, the team went to the site at given time Page 46 of 57 and carried out the inspection.
  2. The presence of Adv, Nilesh Takkekar representing Ms, Nalini Da Rosa Fernandes was objected by the representatives of Mr. Sylvester D’Souza on the ground that he was not marked a copy of the Inspectionnotice. However, the Expert member allowed Adv. Nilesh Takkekar to be part of the inspection team as a representative of Ms. Nalini Da Rosa Fernandes as she was marked a copy of the notice.
  3. I noticed one of the structures Marked L on the map was demolished on the 24th July, 2019 (As informed by the Manager of Sunset Cottages) having an area of 13.95/9.0 meters. However, the permanent cement and concrete plinth/foundation of the demolished structure along with debris can still be seen.
  4. Mr. Dattaram N Kamat, Talathi, Calangute had visited the site for the inspection on 2nd January, 2020 wherein he has observed that a temporary shed was erected on the demolished site by Mr. Sylvester D’souza. The same has been Reported by him to his higher Authority (The Mamlatdar of Bardez, Mapusa Goa) vide letter number TAL/BAR/CAL/REP/CRZ/2020 dated 2nd January, 2020 (As obtained from Dy.Collector Mapusa on Watsap (Annexed as annexure I).
  5. This indicates that Mr. Sylvester D’Souza has illegally erected a structure (temporary shed as mentioned by the Talathi) on the permanent plinth/foundation violating the demolition clause as seen in the photo.
  6. The representatives of Mr. Sylvester D’souza were not in a position to show any documentary evidence issued by the Coastal Zone Management Authority granting permission to construct any of the structures existing in the said survey number. The team observed that there are total twelve structures (including the plinth/foundation of the demolished structure) number of structures existing at loco. The same has been identified and marked on the survey map by the Surveyors DSLR, Govt. of Goa. (Annexed as annexure 11).
  7. The joint inspection carried out by the team comprising of representatives from Goa State Pollution Control Board, Tourism Dept. and GCZMA on 6.10.2016 identified five blocks comprising of 20 rooms being operated by Mr. Sylvester D’souza. In addition to this, the team also identified a Ground plus two a residence and owned by Elvira D’ costa (Annexed as annexure III).
  8. The representatives of Mr. Sylvester did not allow the team member to enter the rooms. Rooms have been counted based on the doors by Mr. Yeshwant Bicholkar. FS, GCZMA on 14th January, 2020.
  9. The details of structures along with number of rooms as of 13/14th January, 2020 are as shown in the table on page 6
  10. Adjoining to the structure H, a dotted line shows a structure as per the survey plan admeasuring about 25 Sq meters. However, such structure was not seen nor identified by the representatives of Mr. Syslvester D’souza on loco.
  11. Mr. Damodar Kharbe inf
    ormed that Mr. Sylvester D’Souza owns the structure H and rest are owned by Agusta, Maria and Elvira D’costa, Mr. Kharbe was not sure of the ownership and every time was changing the names. As per the form I & XIV, the survey number on which these structures have been erected belongs to Mr. Sylvester D’Souza. (Annexure IV). Hence the submission made by Mr. Damodar Kharbe the structures other than H and L are not owned by Mr. Sylvester D’Souza is false.
  12. The Expert Member repeatedly asked Mr. Damodar Kharbe, Adv. Karan Jayant, Adv. Dilesh Ashwekar the construction permission copy from the representatives of Mr. Sylvester for the structures marked, A, B, C, D, E, F G, H, I, J, K L, restaurant and the swimming pool. However, Mr. Damodar Kharbe failed to produce the permissions.
  13. The Manager and both the Advocates representing Mr. Sylvester D’Souza refused to provide any legal documents issued by the Goa Coastal Zone Management Authority to 573 prove structures existing on the above survey number are legal. The same may be validated from the documents of GCZMA.
  14. Photos taken during the inspection are enclosed. Conclusion: Therefore GCZMA may issue a show cause notice for the additional structures observed on 13/14 January as listed in the table above and direct the Dy. Collector to demolish structure I as indicated in the map enclosed having six rooms in order to comply with the demolition order 2005 and 2012”.
  15. Having pointed out above, it is argued by the learned Counsel for the Appellant that a wrong comparison has been made of the structures existing on the property in question as on 13- 14.01.2020 and 06.10.2016 and on the basis of this wrong comparison, no such findings could have been given as given in column No.4 of the conclusion at Sr. No.1, that the Appellant seems to have carried out additional construction post-2016 to join restaurant and structure-A as can be seen in the enclosed plan. Further, it was pointed out by him that there is huge discrepancy with respect to the referring to the offending structures, some times as structure, some times as block and this non-clarity led to complete chaos and would amount to not determining the offending property with accuracy and hence no demolition order could have been passed when there was no clarity with respect to offending property.
  16. This argument has been vehemently refuted from the site of Respondent No.2 and it has been argued that in the Inspection Report dated 06.10.2016, observation at point-4 clearly indicates that the Appellant’s property consists of 20 rooms i.e. block A to D and that in the subsequent Inspection dated 13.01.2020, there is break up given of structures A to D, which according to him would be nothing but block A, B,C, and D referred to in earlier Report dated 06.10.2016 and in structure-A, on 13-14/01/2020, they had found 8 rooms while in October 6, 2016 there were existing only 6 rooms in that structure, which shows that 2 rooms were additionally constructed by the Appellant post-October, 2016 inspection without any valid permission from any competent Authority, as no permission has been shown to Respondent No.1 Authority. Similarly, with respect to structure B,C and D, 3,2 and 2 additional rooms are found to have been constructed post- Page 50 of 57 October, 2016. At Sr. No.6 in table of Field Inspection Report dated 13.01.2020 structure-F on 13-14/01/2020 shows that there is ground structure with 2 rooms which did not appear on 06 October, 2016, hence these 2 structures were also constructed additionally by the Appellant, post-October, 2016. Similarly, at Sr. No.7 in respect of structure-G in January 2020 there was found ground structure with one room while earlier there was no such structure in October 2016. Hence, this structure was also subsequently raised by the Appellant and all these additional structures are apprehended to have been raised after passing of earlier demolition order. With respect to structure-J at Sr.No.10 also, a ground structure with 2 rooms which did not exist in 2016, is found existing in January 2020. At Sr. No.11, structure-K, a toilet structure with 2 rooms is found to exist in January 2020 which did not exist in 2016, at Sr. No.13 a swimming pool is shown to exist as shown in the legend in the map enclosed which did not exist at the time of inspection conducted in October 2016.
  17. Then learned Counsel for Respondent No.2 drew attention to Sr. No.10 of the observations which shows that a dotted line showed a structure of about 25 sq. mtrs. as per survey plan, which was not seen nor identified by the representative of Appellant in survey conducted in 2020, and having drawn attention to it he argued that it was this structure which existed prior to 1991 which now was found not in existence in the year 2020. Whether it was demolished by the Appellant himself or what happened has not been made clear but the fact remains that on the survey conducted in the year 2020, the said structure did not exist. It is also recorded at point No.13 in the observations that the Learned Counsel for the Appellant refused to provide any legal documents to show that there structures which existed on the Survey number in question were legal.
  18. Having taken into consideration rival contentions on this point, we are of the view that there is nothing shown from the side of the Appellant strong enough to discard the Field Inspection Report dated 13.01.2020, which has been conducted in presence of his representative and it has also come on record that no documentary evidence was extended from the side of the Appellant to prove that these structures which were found to be in existence on the said Survey Number were constructed with due permission obtained under law from the competent authorities and therefore the argument that there was wrong comparison made of the structures in the light of earlier joint committee Report date 16 October, 2016 and the Field Inspection Report dated 13- 14.01.2020 does not hold good. There appears no other evidence to determine how these structures came on the said place. This was responsibility of the Appellant to explain, how these structures came up which he failed to discharge miserably. He is trying to take benefit of doubt that it is on the basis of wrong comparison with respect to the property/structures on the spot, that these structures are ordered to be demolished under the impugned order, which is sweeping order saying that all the structures standing on the said plot by demolition. One more point we would like to add is that the Learned Counsel for the Appellant also drew our attention in this regard to page-130 of the paper book which is a part of reply to notice dated 18.02.2011 given by the Appellant to GCZMA, wherein it was pleaded that he wanted to examine following witnesses;

a) The Sarpanch, Village Panchayat of Calangute and
b) The Secretary of Village Panchayat of Calangute Page 52 of 57
c) Mrs. Vignette Andre, (unclear)
d) Mrs. Alvira D’costa.

But the said permission was not allowed. To this argument the rebuttal was made from the side of Respondent No.1 by saying that if the Appellant wanted version of these witnesses to be brought on record, he had opportunity to produce their affidavits on record but he failed to do that, hence no benefit of this plea can be allowed to the Appellant. We are in agreement with the arguments of Learned Counsel for Respondent No.1, as well as Respondent No.2. The burden lay upon the Appellant to prove as to what structures existed on the impugned property prior to 1991 by leading evidence from his side in clear terms, particularly, giving a sketch map of the construction, but he failed to do so and now he is illegally trying to take benefit of this un-clarity with respect to structures which are ordered to be demolished. This fact is all the more necessary in this case because the Appellant has been engaging in long litigation and the same had gone up to the Hon’ble Apex Court, consuming enormous time in securing demolition of the earlier structures.

  1. Learned Counsel for the Appellant drew our attention to page-202 of the paper book which contains resolution No.II (01) dated 20.2.2012 of village Pnachayat Calangute, wherein a finding is given that “ there can be no doubt (that) the structure (is) in existence much before the year 1987 and much before the Panchayat Rules and Regulations came into force …..” The Secretary has confirmed as per the Panchayat Records that the structures of Mr. Sylvester D’Souza are very old structures which existed before 1991, even the ward Member Mr. Annely Fernandez confirmed that he also stays in the said locality and he also knows that the structure of Mr. Sylvester D’Souza existed much prior to before the year 1991”. After perusing the evidence which was placed before Village Panchayat, case of the Appellant was found fit for regularization. Based on this documentary evidence, it is argued that this document has not been taken into consideration by the GCZMA before passing the impugned order illegally. In rebuttal, it was argued by the Learned Counsel for Respondent that this document has already been considered while earlier demolition order date 15.02.2012, had been finalized, now the same cannot be raised again. To this again, the Learned Counsel for the Appellant rebutted that the said resolution was not set aside by the any legal forum before which the matter of earlier demolition order went for consideration and hence this document can be taken into consideration in the present case. We are not in agreement with the view point of the Learned Counsel of the Appellant and uphold the arguments of the Learned Counsel for Respondents.
  2. Learned Counsel for the Appellant candidly admitted that the Swimming Pool which was found existing in the Inspection Report of 2020, has been illegally constructed. This goes to show that he should have given clear picture with respect to other constructions as well, as to on which date they were raised that could have made the task of this Tribunal easier to pass an appropriate relief order. Further, it is argued by the Learned Counsel for the Appellant that the purpose of environmental law is not to demolish and that in case of vagueness in the structures and as to when they were raised, is not appropriate to order their demolition and hence the impugned order should be treated as perverse order. We partially agree with the Learned Counsel for the Appellant that the demolition is not the main aim of the environmental law but certainly, if violation is found to have been caused by someone which results in polluting the environment, in that case not only compensation can be awarded proportionate to the damage caused to environment but such structure which is responsible for causing pollution can also be ordered to be demolished so that in future no environmental violation occurs.
  3. Another important point which has been raised by the Learned Counsel for the Appellant is that the demolition notice stands vitiated because of pre-decision of the Authority issuing show-cause, which was prejudiced against the Appellant and in that regard reliance has been placed upon case- Oryx Fisheries Pvt Ltd v Union of India 2010 (13) SCC 427 wherein it is held that “the notice must state charges only and not the definite conclusions of the alleged guilt. If the show cause notice contains alleged guilt, the proceedings stand vitiated”. Having drawn attention to this position of law, our attention was drawn to showcause notice dated 16.03.2020, wherein it is recorded “ to issue show cause notice as to why a direction to demolish structures and to restore land to its original condition should not be issued to you” and thereafter it was urged that this language of the notice clearly shows that determination of demolition was already there in the mind of GCZMA Authority and only in order to show that opportunity of hearing was given to the Appellant, the said notice was given. This shows strong bias and hence the said notice deserves to be set aside.
  4. We have gone through the impugned order in which it has been clearly explained by the Authority as to how it functions. It is not only the Member Secretary of GCZMA rather the said Authority while making consideration of the matters comprises, not only the Member Secretary who is spokesperson of the GCZMA but other authorities also such as Chairman, Member Secretary along with Page 55 of 57 Expert Members and other ex-officials, Members from various Departments, the Secretary Environment who is the Chairman of Authority etc. So many people being there on the Authority there could hardly be any possibility of bias against the Appellant and we are totally in agreement with the view taken by the Authority in discarding this argument. 42. In the light of analysis, we are of the view that there is no infirmity in the impugned order, by which demolition has been ordered and thus the appeal does not have force and the impugned order needs to be upheld and the appeal needs to be rejected with cost and is accordingly rejected with cost. ORDER ON OA NO.91 OF 2021 43. In this Original Application the prayer is made by the Applicant that direction be issued to Respondent Nos.1 and 2 to demolish illegal construction raised by him at Survey No.242/2 (part) at Sunset Hotel at Saunta Vaddeo, Calangute, Bardez Goa, comprising swimming pool, structure-A, 2 rooms; structure-B, ground plus 2 rooms; structure-C toilet structure consisting of 2 rooms; structure-D, a bar with 2 rooms inside; structure E (G+2), having a residence on the ground floor and 4 rooms each on the upper floors, total 8 rooms; structure-F, ground with 2 rooms; structure G, ground floor with 1 room; structure-H, ground floor with 4 rooms; structure-J, ground floor with 2 rooms; structure-K, a toilet structure with 2 rooms and structure-L, which is plinth/foundation admeasuring about 126sq. mtrs. and further direct demolition of swimming pool and further direction be issued to Respondent No.1 to conclude the proceedings pending before it regarding Show cause notice dated 16.03.2020 within a period of 3 months. The facts narrated by the Applicant in this Application are Page 56 of 57 the same which are narrated in the Appeal No.14/2022 by Respondent No.2. 44. The Respondent No.1 has submitted status Report dated 21.03.2022 which says “I say that Show Cause notice dated 16.03.2020 issued by Respondent No.1 in term of decision taken in the 221st meeting of GCZMA held on 25.02.2020. I say that in pursuance of the said Show cause notice the concerned parties i.e. the Applicant and Respondent No.2 herein provided several opportunities to present their case before the Respondent No.1 Authority. 45. In view of above Report of RespondentNo.1 as well as the Judgment delivered by us in Appeal No.14/2022, this Application stands disposed of in terms of said Judgment. 46. It is further directed that the Appellant shall comply with the order and carry out directions given by Respondent No.1- Authority within a period of fifty (50) days positively, failing which an amount to be calculated at the rate of Rs.5 Lacs (Rs.Five Lacs) per day till full removal of offending structures, shall be payable by the Appellant to be deposited in the Environment Relief Fund set up under Sub-Section (3) of Section 7-A of the Public Liability Insurance Act, 1991. The Appeal as well as Original Application No.91/2021(WZ) along with Caveat and IAs stand disposed of.

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