1. Heard the learned Counsel for the parties.
2. Rule. The rule is made returnable at the request of and with the consent of the learned Counsel for the parties.
3. The Petitioners seek a writ of certiorari to quash and set aside the impugned decision dated 2/3/2021 taken by the Goa Coastal Zone Management Authority (GCZMA) in its 252nd Meeting, denying the Petitioners the benefit of regularization of their patently illegal and unauthorized structures put up with impunity, in a No Development Zone (NDZ), in a highly Ecosensitive area, within 200 meters from the High Tide Line (HTL) at Anjuna, Bardez, Goa.
4. The Petitioners were operating a bar, restaurant, and nightclub under the name and style of 'Sunburn Beach Club' in the illegal structures put up by them in the NDZ. Despite solemn undertaking furnished by the Petitioners to the GCZMA that they would demolish these patently illegal and unauthorized structures in the NDZ, this Petition has been instituted to seek benefits of regularization under the Office Memorandum dated 19/2/2021, issued by the Ministry of Environment, Forest, and Climate Change (MEFC) and assistance of the Writ Court is being sought for that purpose.
5. The Petitioners, in terms of 'Franchise Agreement dated 16/10/2020' claim to have 'taken over' the property bearing Survey No.213/18 of Village Anjuna, Bardez, Goa (said property). The Petitioners have pleaded that they took over the said property along with 'existing steel structures situated therein' to run a business which was named and styled as 'Sunburn Beach Club'.
6. Now, the record bears out that this, so-called 'existing steel structure' was nothing but, yet another illegal and unauthorized structure put up in the said property by the persons with whom the Petitioners claim to have a franchise agreement dated 16/10/2020. Therefore, this steel structure is not to be confused with some authorized structure in existence at the time when the Coastal Regulation Zone Notification 1991 entered into force. This pleading of the Petitioners, therefore, at the mildest, is quite misleading.
7. There is no dispute whatsoever that the said property is a beachfront property, situated within 200 meters from the HTL, and is classified as CRZ-III under the CRZ Notifications 1991, 1999, and 2011.
8. There is also no dispute that in terms of CRZ 2011, which is what is applicable at present, the area up to 200 meters from the HTL, within the CRZ-III area, is demarcated as No Development Zone (NDZ), and no construction is permitted within the NDZ, except for 'repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification'.
9. Since the Petitioners referred to the special provisions for the State of Goa in the CRZ Notification 2011, the same are transcribed below for the reference of convenience:-
'3. CRZ of Goa.-
In view of the peculiar circumstances of the State Goa including past history and other developments, the specific activities shall be regulated and various measures shall be undertaken as follows:-
(i) the Government of Goa shall notify the fishing villages wherein all foreshore facilities required for fishing and fishery allied activities such as traditional fish processing yards, boat building or repair yards, net mending yards, ice plants, ice storage, auction hall, jetties may be permitted by Gram Panchayat in the CRZ area;
(ii) reconstruction, repair works of the structures of local communities including fishermen community shall be permissible in CRZ;
(iii) purely temporary and seasonal structures customarily put up between the months of September to May;
(iv) the eco-sensitive low lying areas which are influenced by tidal action known as khazan lands shall be mapped;
(v) the mangroves along such as khazan land shall be protected and a management plan for the khazan land prepared and no developmental activities shall be permitted in the khazan land;
(vi) sand dunes, beach stretches along the bays and creeks shall be surveyed and mapped. No activity shall be permitted on such sand dune areas;
(vii) the beaches such as Mandrem, Morjim, Galgiba and Agonda have been designated as turtle nesting sites and protected under the Wildlife Protection Act, 1972 and these areas shall be surveyed and management plan prepared for protection of these turtle nesting sites;
(viii) no developmental activities shall be permitted in the turtle breeding areas referred to in sub-paragraph (vii).
10. Therefore, from the aforesaid provisions, there is and there can be no dispute that no structures could have been put up in the said property, the said property being in the NDZ and classified as CRZ-III under the Coastal Regulation Zone Notification 2011. Despite such clear provisions, the GCZMA was constrained to issue a show-cause notice dated 16/1/2019 to Petitioner No.2 herein for having carried out the following constructions in the said property, which is admittedly an ecosensitive NDZ, classified as CRZ-III:-
i) Illegal construction of a Ground + 4 floors structure for commercial use.
ii) Illegal temporary hut at the beach.
iii) Illegal construction of underground water tank (sump) with cement concrete and laterite stones.
iv) steel girders anchored with concrete in the soil with cement blocks and tiled flooring.
v) Illegal hill cutting.
vi) Illegal excavation for footing to erect column.
11. The show-cause notice dated 16/1/2019 was issued by the GCZMA based on the site inspection report prepared on 13/12/2018. Respondents No.3 to 5 who had pointed out various illegalities carried out by the Petitioners in the said property have alleged that the show cause notice was issued on 16/1/2019 even though the massive illegalities were noticed on 13/12/2018 itself. They alleged that this delay was only to facilitate the Petitioners to proceed with their commercial activities, which usually reach the peak in December at or around the new year celebrations in Goa.
12. The GCZMA then granted ample opportunity to the Petitioners to defend the patently indefensible illegal constructions, brazenly put up by the Petitioners in the NDZ. During the proceedings, the GCZMA also noted that site inspection had revealed that the Petitioners had erected a shack with a steel structure, without obtaining any NOC from the GCZMA. The site inspection report had observed that full steel structure is not permitted in terms of CRZ Notification and, therefore, even the said structure should be demolished. This is the steel structure which the Petitioners have now referred to as 'existing steel structure' in paragraph 4 of the Petition as if to misleadingly suggest that this structure is some existing authorized structure at the time when the CRZ Notification 1991 entered into force.
13. The Petitioners, to begin with, delayed the proceedings, thereafter, offered flimsy defenses, so that the GCZMA was forced to delay its decision on the show cause notice dated 16/1/2019. Respondents No.3 to 5 have alleged that it is inconceivable that the GCZMA was unaware of this massive illegal construction in the said property because several complaints were made from time to time when the illegal structures were actually coming up. Respondents No.3 to 5 have alleged that various Government Authorities, like Excise Department, Tourism Department, FDA, etc. unauthorizedly permitted the Petitioners to operate their bar, restaurant, and nightclub. The Respondents have alleged that the Authorities, for the reasons best known to them, were most reluctant to initiate actions against the Petitioners and even, the actions were being deliberately delayed up to to the onset of monsoons, when, the business activities in these areas, are forced to come to a halt.
14. At this stage, it is not necessary to either accept or reject the contentions of Respondents No.3 to 5, but the record does indicate that though there were several complaints, the site was inspected only on 13/12/2018. Even after the massive illegalities were noticed, no action was taken to seal the premises immediately. The show-cause notice was issued only on 16/1/2019 after the December peak events were held. Even thereafter, several opportunities were granted to the Petitioners, and the final order for demolition of these patently illegal and indefensible structures was issued only on 19/6/2019, by which time, the monsoons had reached the State of Goa. In the meanwhile, the Petitioners continued with their commercial activities through the illegal and unauthorized structures, brazenly put up by them in the highly eco-sensitive NDZ.
15. Finally, the GCZMA, by its order dated 19/6/2019, after granting more than necessary latitude to the Petitioners, ordered the demolition of the patently illegal structures and even directed the Collector and District Magistrate (North), Deputy Collector and S.D.O. (Bardez), Secretary of the Village Panchayat of Anjuna, Director of Tourism, Commissioner of Excise, Commissioner of Commercial Taxes to immediately revoke the permissions, if any, granted to the structures/activities in Survey No.213/8 of Anjuna. The demolitions were ordered to be carried out by the Deputy Collector/SDO, Bardez, and even a compliance report was to be submitted. This means that for the entire tourist season of 2018-19, the Petitioners succeeded in carrying on the commercial activities through the patently illegal and unauthorized structures put up by them in the said property, which is a highly eco-sensitive NDZ. The belated directions by the GCZMA to the various Authorities for demolition and revocation of the licenses came at a stage where on account of the monsoons, the Petitioners, in any case, would be disabled to undertake the commercial activities in the said property.
16. The Petitioners have pleaded that they questioned the GCZMA's order dated 19/6/2019 either before the National Green Tribunal (NGT) or this Court, without any success. The Petitioners have pleaded that they, therefore, complied with the GCZMA's order dated 19/6/2019 and actually carried out the demolitions at the site. From the conduct, not just of the Petitioners, but also of the Authorities, it is impossible to state with certainty whether the demolitions were indeed carried out at the site. This is particularly because the Franchise Agreement dated 16/10/2020, based on which Petitioner No.1 claims some interest in the business activities in the said property, again refers to the 'existing steel structure situated therein' from which the Petitioner No.1 runs a business under the name and style as 'Sunburn Beach Club'.
17. Be that as it may, after the monsoon for 2019 receded, it appears that the commercial activities at the said property continued unabated. This was despite the hue and cry by the residents and activists. Respondents No.3 to 5 have alleged that it is only because the might of the State was behind the Petitioners, that this was possible. Based upon the newspaper report in 'O Heraldo' dated 7/12/2020 under the caption 'Anjua locals angry as Vagator beach renamed Sunburn beach by hotelier in Sy.No.213/18 of Ozran, Vagator, Bardez-Goa' the site was once again inspected by expert members, along with Field Surveyor of GCZMA. The expert member and the Surveyor of the GCZMA, in their report, made the following recommendations :
'Considering the extent of illegality committed without obtaining necessary permissions, the authority may with immediate effect issue a complete stop-work order, levy fine under polluter pay principle and conduct a further inquiry as per law; the structure is massive in nature, a detailed mapping by the office of DSLR should be carried in respect of survey No.213/17 and 18 of Anjuna village of Bardez taluka. This should include calculation of floor-wise area and its utility."
18. Thereafter, once again, a show-cause notice was issued to the Petitioners by the GCZMA. Once again the Petitioners delayed the proceedings before the GCZMA. The records bear out that adjournments were applied for and were granted to the Petitioners on 14/1/2021, 21/1/2021, 25/1/2021, 4/2/2021 11/2/2021, 2/3/2021. On 25/1/2021, an adjournment was applied for submitting an 'action plan for demolition'. This means that the Petitioners, quite correctly, had no defense whatsoever for the massive illegal constructions, once again put up by the Petitioners in the said property, which is a highly eco- sensitive NDZ for commercial purposes. The only issue which survived was whether the GCZMA should itself carry out the demolition or whether some latitude should be extended to the Petitioners for them to carry out the demolitions. Even, on this issue, the Petitioners delayed the proceedings before the GCZMA.
19. The records indicate that the Petitioners attempted to seek the benefit of Office Memorandum dated 01/02/2021 to regularize the patently illegal and unauthorized massive construction put up by the Petitioners. Ultimately, after considering all such pleas, the GCZMA made the impugned order in its 252nd meeting on 2/3/2021. The operative portion of this order dated 2/3/2021, reads as follows :
'Proceedings: Ld advocate Shivan Dessai appeared for the Respondent and placed on record the OM F. No. 19- 27/2015I-A.III dated 1/02/2021 issued by the Ministry of Environment & Forest and Climate Change, New Delhi and requested for joint inspection in view of above circular.
Decision: The Authority after hearing the Respondent came to conclusion that the Respondent are not entitled for the benefits of the said Office Memorandum as the inspection is already done in the present matter and the inspection report is already on record. Further, the Respondent has agreed to demolition and has requested time to submit demolition plan and the last opportunity was given to the Respondent. As such Authority rejected the request of the Respondent as the directions issued by the Ministry are much beyond the scope of the present matter. The Authority warned the Respondent that in case the demolition plan is not received on or before 11/03/2021, the demolition will be carried out by the Collector North Goa at the cost of the Respondent and environmental damage and restoration of the land will be carried out thereupon at the cost of the Respondent. Matter be posted on 11/03/2021 for consideration of demolition."
20. Although more than ample opportunity, including no less than 4 adjournments were granted to the Petitioners, the Petitioners nevertheless, complained about the failure of natural justice. Based thereon, the present Petition was instituted, and by an order dated 2/6/2021, this Court was persuaded to remand the matter for reconsideration of the Petitioners' claim for regularization of the massive illegal and unauthorized structures in terms of OM dated 19/2/2021, issued by the MFEC.
21. At this stage, it is necessary to note that the Petitioners had not impleaded Respondents No.3 to 5 as parties to this Petition on the specious plea that the action initiated by the GCZMA was based on the newspaper report in 'O Heraldo'. Even the Union of India (MFEC) was not impleaded as Respondent to this Petition, as initially instituted. The Petitioners relied on OM dated 19/2/2021, issued by the MEFC, but did not point out to the learned Single Judge of this Court (S.C. Gupte, J. - Vacation Judge) that the Principal Bench at Bombay, in Public Interest Litigation (L) No.8540/2021 (Dipankar Datta, CJ & G.S. Kulkarni, J.) had already made an order dated 7/5/2021, observing prima facie that the OM dated 19/2021, was contrary to the substantive ruling of the Hon'ble Supreme Court in Alembic Pharmaceutical Limited vs. Rohit Prajapati – reported in 2020 SCC OnLine SC 347 and had further restrained the MFEC from granting any permissions/clearance based on OM dated 19/2/2021, till August 31, 2021, or until further orders, whichever is earlier. The Principal Bench had also made it clear that if any application for permission is received after 7/5/2021, then, the receiving authority shall bring the fact of pendency of the PIL and the interim order passed thereon to the notice of the applicant.
22. Respondents No.3 to 5 and an NGO – The Goa Foundation filed review petitions before this Court, seeking review of the Order dated 2/6/2021 made by the learned Vacation Judge, inter alia, by pointing out to the order of the Principal Bench. The review Petitioners pointed out that the directions issued in the order dated 2/6/2021, directly conflicted with the order made by the Principal Bench and, therefore, the same may be reviewed/recalled.
23. By order dated 23/6/2021, after hearing the learned Counsel for the review Petitioners, the Petitioners in the present Petition, and the learned Advocate General, the order dated 2/6/2021, was reviewed and recalled and this Petition was restored for reconsideration. Leave was also granted to the Petitioners to implead Respondents No.3 to 5, as well as the Union of India. Thereafter, Respondents No.3 to 5 have filed a detailed affidavit, pointing out how several material facts were suppressed by the Petitioners while instituting the present Petition. Such suppression was sought to be justified on the specious plea that Petitioner No.1 came into the picture only on 16/10/2020 through the Franchise Agreement dated 16/10/2020. Such explanation is frivolous because Petitioner No.2, had full knowledge of the previous illegal constructions on the said property and the orders for demolition. The Petition makes only selective disclosures and this appears to be a case of suppressio veri and suggestio falsi . However, this is not the only ground why the present Petition deserves to be dismissed.
24. Mr. Shivan Desai contended that the Petitioners were not even aware that the GCZMA in its order dated 2/3/2021, had rejected the Petitioners' plea for benefit under OM dated 01/02/2021 and that there was no proper hearing granted on this score. He, therefore, urged that the impugned order dated 2/3/2021 may be set aside for failure of natural justice.
25. The contention based on the failure of natural justice, at least in the facts of the present case, is entirely misconceived and frivolous. The record indicates that no less than 4 adjournments were granted to the Petitioners. The records indicate that the Petitioners themselves offered to submit a demolition plan, but, then kept on delaying its submission. The record also indicates that the Petitioners specifically raised the contention based on OM dated 01/02/2021 and it is only after considering such contention that the GCZMA, concluded that the Petitioners are not entitled to the benefit of OM dated 01/02/2021. Therefore, it is quite unfortunate that despite all this, the Petitioners should even allege any failure of natural justice and on that ground, seek an order for reconsideration of their matter before the GCZMA. Such ground has no merit and is, therefore, rejected.
26. Mr. Desai then submitted that whatever be the earlier construction put up on the said property, the existing steel structure, which is the subject matter of the impugned order dated 2/3/2021, is a 'temporary structure' . He submits that in terms of the CRZ for Goa referred to above, such a structure is permissible. He, therefore, submits that the Petitioners are entitled to the benefit of OM dated 19//2021, or at least entitled to a further consideration as to whether the Petitioners are entitled to the benefit under OM dated 19/2/2021.
27. Now, the material on record in the form of inspection reports by the GCZMA, make it abundantly clear that the Petitioners, with impunity and in the teeth of earlier demolition orders, have put up a massive steel structure, without obtaining any permissions from any authorities and in gross disregard to every law, not to mention the CRZ Notification 2011. The Petitioners did not even contest before the GCZMA that the structure put up by them so brazenly, was either authorized or that the same was only a temporary structure and therefore permitted under the CRZ for Goa. The Petitioners, after seeking initial adjournments, later on, offered to submit a plan for demolition of the said structure, though, the Petitioners again kept delaying the submission of such a plan. The Petitioners virtually bought time, based on their undertaking that they would themselves demolish this brazenly illegal and unauthorized structure, put up by them in the said property, which is a highly eco-sensitive NDZ. Therefore, it does not behove the Petitioners to now contend that the massive illegal structure put up by the Petitioners is some 'temporary structure', protected under the CRZ for Goa.
28. Now, coming to the OM dated 19/2/2021, the same, to begin with, is only an administrative or executive instruction. This OM refers to the decision of the Hon'ble Supreme Court in Alembic Pharmaceutical Limited (supra), and, based thereon, seeks to introduce a process for appraisal of cases of a violation arising due to not obtaining prior clearance for 'permissible activities'. It provides that all activities which are 'otherwise permissible' under the provisions of the Coastal Regulation Zone Notification but have commenced construction without prior clearance, would be considered subject to certain compliances.
29. Now, if the ruling of the Hon'ble Supreme Court in Alembic Pharmaceutical Limited (supra) is perused, then, it is quite clear that the Hon'ble Supreme Court, far from approving any grant of ex post facto environmental clearances, has clearly held that an administrative decision proposing to grant such ex post facto clearance would fall foul of Section 3 of the Environment Protection Act, 1986, in terms of which the Central Government has been empowered and duty-bound to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. The Hon'ble Supreme Court has held that ex post facto regularization of industries that had been set up without prior environment clearance, would be in derogation of the fundamental principles of the environmental jurisprudence and is an anathema to the EIA Notification 1994. The Hon'ble Supreme Court has held that such ex post facto regularization would lead to irreparable degradation and for this reason, retrospective ED or/an ex post facto clearance is alien to environmental jurisprudence. The Hon'ble Supreme Court held that allowing ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC and in the absence of an EC, there would be no condition that would safeguard the environment and this would run contrary to both the precautionary principle as well as the need for sustainable development.
30. As was observed by the Principal Bench of this Court in its interim order dated 7/5/2021, the MEFC has ignored the substantive decision in Alembic Pharmaceutical Limited (supra), but has chosen to refer to the directions issued by the Hon'ble Supreme Court under Article 142 of the Constitution where fines were imposed on the particular industries who had instituted petitions before the Hon'ble Supreme Court and such industries were permitted to operate subject to obtaining Environment Clearances.
31. Be that as it may, even in terms of OM dated 19/2/2021, only some consideration can be shown to the activities which are otherwise permissible under the CRZ Notification. As noted earlier, there is no dispute that the said property is within 200 meters from the HTL and, therefore, is classified as NDZ. There is also no dispute that the said property falls within the CRZ-III classification. Therefore, the permissible activity in such an area would be only repairs or reconstruction of existing authorized structures not exceeding existing Floor Space Index, existing plinth area, and existing density. Since, Mr. Desai refers to the CRZ for Goa, again, what is prima facie, permissible is reconstruction, repair works of local communities, including fishermen community or putting up of purely temporary and seasonal structures customarily put up between September to May.
32. The records, in the present case, bear out that there was no existing authorized structure or that the Petitioners had undertaken any repair or reconstruction of the existing authorized structures. The reports speak about massive illegalities carried out by the Petitioners by putting new and permanent structures, in gross disregard to practically every legal provision and the use of such illegal and unauthorized construction for large-scale commercial activities. There is nothing temporary even about the structure which the Petitioners have themselves undertaken to demolish before the GCZMA. Therefore, it is very apparent that even if it is ultimately held that the OM dated 19/2/2021 is intra vires or constitutional, the Petitioners are not entitled to any benefit under the said OM. Therefore, the GCZMA was entirely right in denying the Petitioners the benefit of the OM dated 19/2/2021. The impugned decision of the GCZMA is neither in excess of the jurisdiction nor is the same legally infirm. In the facts of the present case, this is an entirely correct decision because the Petitioners are clearly not entitled to the benefit of the OM dated 19/2/2021.
33. The Petitioners, despite furnishing undertakings to the GCZMA that they would themselves demolish the brazenly illegal and unauthorized construction put up by them in the highly eco-sensitive NDZ, have now reneged. The only explanation offered by Mr. Desai was that the Petitioners' undertakings were before the OM dated 19/2/2021 was issued. This is hardly any explanation. This is approbation and reprobation. At least the assistance of the writ court cannot be extended for such purposes. Apart from the fact that the Petitioners are not entitled to the benefit of OM dated 19/2/2021, it is necessary to observe that even the conduct of the Petitioners of repeatedly and brazenly defying the environmental laws and putting up the massive illegal structures within the highly eco-sensitive NDZ, does not entitle such Petitioners to the relief of regularization of these very structures or for that matter some relief from this court exercising equitable jurisdiction.
34. In Piedade Filomena Gonsalves vs. State of Goa and ors. (2004) 3 SCC 445), the Hon'ble Supreme Court has held that the Coastal Regulation Zone Notifications have been issued in the interest of protecting the environment and ecology in the coastal areas. The construction raised in violation of such regulations cannot be lightly condoned. That was a case where the Petitioner indulged in misadventure of raising a construction within 200 meters of the HTL, without obtaining any permissions from the GCZMA. The Hon'ble Supreme Court, in express terms, rejected the request of regularization of such structure within the highly eco-sensitive NDZ.
35. The decision in Piedade Filomena Gonsalves (supra) was followed by the Hon'ble Supreme Court in Vaamika Island (Green Lagoon Resort) vs. Union of India and Ors., (2013) 8 SCC 760) where a plea was made for regularization of apparently illegal construction put up in a Critically Vulnerable Coastal Area (CVCA) of Vembanad Lake and its islands in the State of Kerala (Kerala backwaters). The Hon'ble Supreme Court held that a larger public interest is involved in saving Vembanad Lake, which is an ecologically sensitive area, so proclaimed nationally and internationally. The Hon'ble Supreme Court held that Vembanad Lake is presently undergoing severe environmental degradation due to increased human interventions and, therefore, Kerala High Court was perfectly justified in ordering demolitions.
36. The ruling in Piedade Filomena Gonsalves (supra) was once again followed by the Hon'ble Supreme Court in Kerala State Coastal Zone Management Authority vs. State of Kerala, Maradu Municipality, and ors. (2019) 7 SCC 248)where unauthorized constructions were carried out by the builders on the shores of the backwaters in Ernakulam in the State of Kerala which supports exceptionally large biological diversity and constitutes one of the largest wetlands in India. The Hon'ble Supreme Court observed that the construction activities were taking place in critically vulnerable coastal areas notified as CRZ-III. The constructions were sought to be justified based on permissions granted by the Panchayat and other local authorities. The Hon'ble Supreme Court held that the permissions granted by the Panchayat were illegal and void and no development activity could have taken place in the prohibited zone and in breach of the CRZ regulations.
37. In the specific context of the CRZ Notification, the Hon'ble Supreme Court held that the Notifications issued under the Environment Protection Act are meant to protect the environment and bring about sustainable development. It is the law of land. It is meant to be obeyed and enforced. The constructions in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and who breaches its terms, does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification, cannot present, but a highly vulnerable argument . The Supreme Court approved the decision of the Kerala High Court in Ratheesh K.R. vs. State of Kerala – 2013 SCC OnLine Ker. 14359.
38. In Anil Hoble vs. Kashinath Jairam Shetye and ors. (2016) 10 SCC 701) the Hon'ble Supreme Court upheld the demolition order made by the GCZMA against an unauthorized construction falling within the prohibited area, endangering river and coastal ecosystem. This was even though the GCZMA had issued some NOC. The Hon'ble Supreme Court noted that the NOC issued by the GCZMA was contrary to the directions of the High Court and also in breach of the CRZ Notifications. Again, even this decision suggests that there can be no laxity when it comes to such deliberate breaches of the CRZ Notifications.
39. Even, otherwise, the law concerning the regularisation of illegal construction is fairly well settled. The benefit of regularization is never to be extended to the parties who violate the building regulations, or environmental regulations, brazenly and with impunity.
40. In Esha Ekta Apartments Cooperative Housing Society Limited and ors. vs. Municipal Corporation of Mumbai and ors. (2013) 5 SCC 357), the Hon'ble Supreme Court observed that in the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise.
41. In Royal Paradise Hotel (P) Ltd. v. State of Haryana (2006) 7 SCC 597), the Hon'ble Supreme Court rejected the plea for regularization of construction made in violation of the provisions of the planning and municipal legislation by observing that no authority administering municipal laws and other laws like the Act involved in the matter, can encourage such violations. Even otherwise, compounding is not to be done when violations are deliberate, designed, reckless, or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception.
42. In Friends Colony Development Committee v. State of Orrisa (2004) 8 SCC 733), the Hon'ble Apex Court has held that structural and lot area regulations authorize the municipal authorities to regulate and restrict the height, the number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts, and open spaces; the density of population; and the location and use of buildings and structures. All these have and do achieve the larger purpose of public health, safety, or general welfare. So are front setback provisions, average alignments, and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience, and hardship which is posed to the occupants of the building.
43. The Hon'ble Apex Court further observed that though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. In fact, the Hon'ble Apex Court has gone to the extent of observing that the officials who connive with the parties to put up unauthorized or illegal constructions, should not be spared and disciplinary proceedings should be initiated against them.
44. The Hon'ble Supreme Court in Shanti Sports Club vs. Union of India (2009) 15 SCC 705)further observed that it is unfortunate that despite repeated judgments by the Supreme Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts havepassed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
45. In Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation and ors. (2013) 5 SCC 336), the Hon'ble Supreme Court has held that what needs to be emphasized is that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media, but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against the poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.
46. Recently in Tahir Isani vs. The Commissioner, Corporation of the City of Panaji (Petition (s) for Spl.L.to Appeal (c) No(s). 4135/2021 decided on 22/3/2021), the Hon'ble Supreme Court upheld the order of demolition issued by the Corporation of the City of Panaji and rejected the plea for regularisation. The Hon'ble Supreme Court observed that the violation of municipal regulations on construction must be met with an iron fist. That deviation from the regularisation by compounding is only an exception. Only deviations that are bona fide or when the benefit of demolition would be less compared to the disadvantage suffered, can the exception be applied.
47. Having regard to the aforesaid settled position in law, this is certainly not a case where the Petitioners can claim the benefit of regularisation. As noted earlier, the Petitioners have repeatedly put up massive illegal structures in a highly eco-sensitive NDZ. The Petitioners have done this without bothering to apply or obtain permissions from the GCZMA, or for that matter, other authorities. Even if one set of c
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onstructions, which had degraded the environment in the highly eco-sensitive NDZ was purportedly razed to the ground, the Petitioners have brazenly put up yet another set of constructions on the same spot. This is not some case of constructions being put up by poor people to provide themselves with some shelter or some fisherfolk repairing their small huts in fishing hamlets. This is a massive structure put up by the Petitioners for their commercial activities of a bar, restaurant, and nightclub. Such serial and deliberate violators of environmental laws cannot claim the indulgence of regularization or for that matter, seek any assistance from the writ court to seek regularization. 48. What is surprising in this matter, however, is that the Authorities like Panchayat, Tourism Department, FDA, Excise Department, also supported the commercial activities undertaken through these massive illegal constructions put up by the Petitioners in a highly eco-sensitive NDZ. The GCZMA had to ultimately direct all these Authorities to revoke the permissions. All this creates an impression that the Petitioners are now accustomed to putting up such massive illegal and unauthorized structures in the said property during the tourist season and thereafter delay the proceedings before few authorities which dare to take action or, are forced to take action under public pressure. Once the tourist season concludes, the Petitioners give undertakings of demolition and there is no clear material whether such undertakings are actually complied with or not. This is an extremely sorry state of affairs. The Hon'ble Supreme Court has already held that the Panchayats or other Authorities cannot grant permissions in an area covered under the CRZ Notifications unless the GCZMA clears such projects or proposals. Having regard to the conduct of the Petitioners, certainly, the Petitioners cannot claim the benefit of regularisation. Any regularisation benefit extended to the Petitioners, would render the environment protection laws in the State of Goa, a complete mockery. 49. Respondents No.3 to 5 have pointed out that even after the impugned orders were made, the Petitioners applied for desealing of the illegal structures claiming that such de-sealing was necessary to remove perishables. The Member Secretary of the GCZMA, on his own, without reference to the GCZMA, made orders for de-sealing sometime in December 2020. Respondents No.3 to 5 have alleged that the Petitioners, based on such desealing, advertised and held new year parties in the illegal constructions, again for commercial gains. There are applications dated 11/12/2020, 24/12/2020, etc., made by the Petitioners themselves requesting permissions to temporarily open the business, because, this is a peak season and the Petitioners were suffering monetary loss. All this is quite disturbing, to say the least. 50. The Petitioners have, no doubt, without specifically dealing with such issues in their rejoinder, denied the above allegations through their counsel Mr. Dessai. He also pointed out that Respondents No.3 to 5 are extortionists and even an FIR has been registered against them. At this stage whatever the status of Respondents No.3 to 5, what is important is the message and not the messenger. The material on record is sufficient to create an impression that the Petitioners have no regard whatsoever for the environmental laws or for that matter, any other laws. An impression is also created that the Departments of the State Government like Excise, Tourism, FDA, etc., are out to oblige and facilitate the Petitioners activities in the patently unauthorized structures brazenly put up in a highly eco-sensitive NDZ. For all such reasons, the Petitioners are not entitled to regularization of their patently unauthorized structures brazenly put up by them in a highly eco-sensitive NDZ. 51. For all the above reasons, this Petition is liable to be dismissed and is, hereby, dismissed. The Petitioners have reneged on their undertakings to demolish the unauthorized structures therefore, the GCZMA will now have to carry out the demolitions at the cost of the Petitioners within four weeks and file a compliance report in this Court soon thereafter.