Ecolex Logo
The gateway to
environmental law
Search results » Jurisprudence

The Goa Foundation represented by its Secretary, Dr. Claude Alvares Vs. Ramesh Hotels and Resorts Pvt. Ltd. and Ors.

Country/Territory
India
Type of court
National - higher court
Date
Aug 8, 2008
Source
UNEP, InforMEA
Court name
High Court of Bombay
Seat of court
Goa
Judge
Dharmadhikari, S.C.
Chavan, R.C.
Language
English
Subject
Environment gen., Sea
Keyword
Land-use planning Coastal zone management
Abstract
By this public interest petition, under Article 226 of the Constitution of India, the petitioners are praying that records and proceedings with regard to the Approvals granted for the reconstruction of a bungalow on Survey No. 41/1 and 41/2 of Utorda Village by the Authorities be called for and after examining their validity, quash and set aside the same, as they are in violation of CRZ Notification. The petition proceeds on the basis that CRZ-III Notification prohibits construction and development activities within 200 metres of HTL. What it postulates and contemplates is only repairs of existing authorized structure by utilizing floor area of the existing plinth and nothing more. So the question in this petition is whether the construction violates CRZ-III Notification, whether the works carried out by the first respondent are in the nature of repairs to the existing authorized structure, not exceeding existing FSI, existing plinth area and existing density. On 26.8.97 the Dy Collector passed an order based on a site inspection carried out by him which demonstrated and proved the existence of a building of 300 sq. metres area existing at the site. The Dy. Collector relied upon GSCCE letter/permission and alleged that the same was accorded only for repair/renovation of the existing store which admeasures 89 sq. metres. The construction is within 200 metres of HTL and such a large increase in the plinth area and construction cannot be termed as a renovation or repair of the existing structure.Therefore, he directed demolition of the structure. Aggrieved and dissatisfied with this order, the first respondent approached the State Government by filing a Revision Application that was heard by the Minister for Revenue, Government of Goa. The petitioners point out that the first respondent relied upon the same record, namely, GSCCE approval and construction licence of the Panchayat. The respondent also relied upon the Panchayat letters and urged that all these documents have been issued after due inspection of the site. In all these documents area of the plinth is mentioned as 245 sq. metres. There is no question of any conversion inasmuch as the old house was built and it continues as such. All these pleas have been accepted by the Minister and the order of the Dy. Collector was set aside by order dated 3.3.98. Hence the present appeal. Every single approval from 1994 is questioned by the petitioner, but according to the Court, cogent and satisfactory material is not placed to displace the contents of the relevant document. At least three authorities, namely, GSCCE, the Town Planner and the Village Panchayat concluded that the area of the structure is 245 sq. metres, based on site inspection and verification of the documents. The approvals have been issued based on this material. If they have been granted as far back as in 1994, then, it was necessary for the petitioners to have questioned their contents by placing contemporaneous material. In the absence of such relevant materials and strong circumstances, it is not possible for the Court to draw any adverse inference or hold a fishing enquiry. The petitioners allegations are thus considered vague and unsubstantiated. Although the petitioners have not succeeded in their challenge to the approvals and actions of the Authorities completely and, merely because they are unable to substantiate their pleas with regard to the exact area of the old structure (75/89 sq. metres), still, they have succeeded in proving that the construction at the site exceeded the GSCCE's and the Town Planning Department's approvals. Thus, challenge to this extent has succeeded on the strength of the documents produced by the respondents. As a result,the approvals and permission, so also the licences granted by the Panchayat, the Chief Town Planner and the GSCCE are not interfered with, however, the construction in excess of the proposed floor area i.e. 224 sq. metres is ex facie unauthorized and illegal. If the same is not removed or demolished by the first respondent at its own costs, charges and expenses, within a period of four months, then it would be open for the concerned authorities to demolish and remove it, without any further intimation or notice to the first respondent. The structure will be used as a residence and no commercial activity including running a Guest House would be carried out without prior statutory permissions and approvals.
Full text
COU-156236.pdf
Website
www.nlsenlaw.org