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12/2015(WZ)

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Summary of National Green Tribunal (Western Zone) Opinion — MA Nos.41–50/2015 & Appeal Nos.09–18/2015

Bench: Justice V. R. Kingaonkar (Judicial Member) and Dr. Ajay A. Deshpande (Expert Member)
Date: May 14, 2015
Counsel: For Applicants: Asha Desai a/w Mr. Amrut Gorsale; For Respondent: F.M. Mesquita

Factual and Procedural Background

This matter comprises a batch of Miscellaneous Applications (No.41 to No.50 of 2015) and Appeals (No.09 to No.18 of 2015) before the National Green Tribunal (Western Zone), Pune. The appellants are residents of Camotim Vaddo, Candolim, Bardez, Goa (individual names appear in the record). The respondent is the Goa Coastal Zone Management Authority (GCZMA), represented through its Member Secretary.

A complaint was made by Betty Alvares alleging various illegal constructions in the Coastal Regulation Zone (CRZ) area of Candolim. Because of paucity of manpower and time within GCZMA, the matter was not inquired into by the Authority itself; instead, the NGT (WZ) appointed a Small Inquiry Committee (SIC) under the chairmanship of the District Judge, Ms. Nutan Sardessai. The SIC conducted an inquiry, called relevant records, served notices on the affected persons (the appellants) and heard them in open court. Based on the SIC's report, GCZMA passed impugned orders — directing demolition (in whole or part) of the structures found illegal — and did so by relying solely on the SIC's findings without conducting a fresh hearing of the appellants.

The appeals challenge the procedure followed by GCZMA in adopting the SIC's report and passing demolition orders without conducting a separate hearing before GCZMA itself.

Legal Issues Presented

Whether the procedure followed by the Goa Coastal Zone Management Authority — namely, adopting and acting solely upon the report of a Small Inquiry Committee without giving the appellants an opportunity of being heard before GCZMA itself — was proper, legal and correct.

Arguments of the Parties

Appellants' Arguments (as recorded)

Advocate Asha Desai relied on established principles of natural justice (citing several authorities) to contend that the appellants were entitled to be heard by GCZMA itself and that the hearing conducted by the Small Inquiry Committee in open court did not substitute for a hearing before the decision-making authority.
Implicit in the submissions accepted by the Tribunal was the contention that a second hearing before the primary decision-maker (GCZMA) could be necessary and lawful; there is no legal embargo on providing a second opportunity of hearing.

Respondent's Position (as recorded)

GCZMA relied entirely upon the report of the Small Inquiry Committee and treated the hearing conducted by the SIC as sufficient and fair for purposes of concluding the proceedings, without giving a further hearing before GCZMA itself.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ch. Anita and Ors v. State of Andhra Pradesh and Ors (AIR 2001/Ap 236)	Principles of natural justice are not rigidly embodied; their aim is to secure justice and prevent miscarriage; there is no invariable standard of reasonableness in matters of hearing.	The Tribunal noted and accepted the principle that natural justice rules are flexible and must be adapted to context; this supported the appellants' contention that GCZMA could not avoid hearing them merely because they had been heard by the SIC.
Union of India v. J.N. Sinha and C.B. Boarding and Lodging v. State of Mysore	Each case must be decided on its own merits (principle cited to show contextual adjudication under natural justice).	Used to underline that whether the hearing before the SIC sufficed had to be judged on the peculiar facts and circumstances of these matters.
Mineral Development Ltd v. State of Bihar	Concept of fair hearing is elastic and not susceptible of easy and precise definition.	Supported the Tribunal's approach that a hearing before the SIC may not necessarily satisfy requirements of fair hearing by the primary decision-maker.
FEDCO v. S.N. Bilgrami	No invariable standard for reasonableness; court's conscience must be satisfied that the person had a fair chance to convince the authority proposing action.	The Tribunal referred to this principle to emphasize that GCZMA must be satisfied that appellants had a fair opportunity before the authority which proposed the demolition order.
Maneka Gandhi v. Union of India	Rules of natural justice are not embodied rules; applicability depends on facts, framework of law and constitution of the tribunal; court must decide whether observance was necessary for a just decision.	Cited to show that whether natural justice was contravened must be assessed in context; the Tribunal relied on this when determining that a hearing before GCZMA itself was necessary.
A.K. Roy v. Union of India	Rules of natural justice are not rigid norms; their ambit varies according to context and must be tailored to the nature of the proceedings.	Applied to justify the Tribunal's acceptance of the appellants' submission that a second hearing before the primary authority could be required in these circumstances.

Court's Reasoning and Analysis

The Tribunal's reasoning proceeded in the following steps, based strictly on the contents of the opinion:

Background to the inquiry: A complaint about illegal constructions in the CRZ area of Candolim was lodged. GCZMA did not itself inquire due to lack of manpower and time. Consequently, the NGT (WZ) appointed a Small Inquiry Committee (SIC) under the District Judge to inquire into the complaint.
Role of the Small Inquiry Committee: The Tribunal characterized the SIC's role as similar to that of a Court Commissioner — to examine facts on the spot (loco), call for relevant records and prepare a report. The SIC was thus an investigatory/ fact-finding body, not the ultimate decision-making authority.
Responsibility of GCZMA: The Tribunal emphasized that the GCZMA was the ultimate authority vested with decision-making power. GCZMA could not abdicate this responsibility by merely accepting the SIC's report without exercising its own decision-making function. The Tribunal expressly noted that it had not delegated GCZMA's powers to the SIC by any specific order.
Inadequacy of hearing before SIC alone: Although the appellants were heard by the SIC in open court and records were called, the Tribunal held that such a hearing does not automatically substitute for a hearing before the primary decision-maker (GCZMA). The Tribunal observed that a later hearing before GCZMA could elicit additional facts or clarifications not brought to GCZMA's attention during the SIC proceedings.
Principles of natural justice: The Tribunal accepted counsel Asha Desai's reliance on authorities establishing that the rules of natural justice are flexible and contextual. Citing multiple precedents, the Tribunal reasoned that whether an additional hearing is required depends on the facts, the nature of the decision-making body and the consequences of the proposed action.
Conclusion on procedure: Applying these principles, the Tribunal concluded that appellants were entitled to be heard by GCZMA itself before final decision-making, and that GCZMA could not finalize demolition orders solely on the basis of the SIC report without conducting its own hearing.

Holding and Implications

Holding: All the Miscellaneous Applications and Appeals are disposed of.

The Tribunal gave the following operative directions (direct effects on the parties, as recorded in the opinion):

The appellants shall appear before the Goa Coastal Zone Management Authority (GCZMA) on 29th May, 2015.
If any appellant desires to file an additional affidavit/reply before GCZMA, it shall be filed within ten (10) days from the date of the Tribunal's order.
GCZMA shall complete the hearing and the decision-making process thereafter within three (3) weeks.
No further pleadings are required (the Tribunal recorded counsel Asha Desai's statement that a reply had already been filed and pleadings were complete before GCZMA).
There shall be no costs.

Implications beyond the parties: The opinion does not purport to lay down a new legal precedent; it applies established principles of natural justice (as drawn from cited authorities) to the circumstances at hand and mandates that the primary decision-making authority (GCZMA) must itself hear the affected parties before finalizing orders based on a subordinate inquiry report.

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Mrs. Rosalina Mascarenhas v. Goa Coastal Zone Management Authority

MA Nos .41 to 50/2015 with Page 1 of 12 Appeal Nos.09 to 18/2015.(WZ) BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE MISC. APPLICATION NO.41 OF 2015 MISC. APPLICATION NO.42 OF 2015 MISC. APPLICATION NO.43 OF 2015 MISC. APPLICATION NO.44 OF 2015 MISC. APPLICATION NO.45 OF 2015 MISC. APPLICATION NO.46 OF 2015 MISC. APPLICATION NO.47 OF 2015 MISC. APPLICATION NO.48 OF 2015 MISC. APPLICATION NO.49 OF 2015 MISC. APPLICATION NO.50 OF 2015 With APPEAL NO.09 OF 2015 APPEAL NO.10 OF 2015 APPEAL NO.11 OF 2015 APPEAL NO.12 OF 2015 APPEAL NO.13 OF 2015 APPEAL NO.14 OF 2015 APPEAL NO.15 OF 2015 APPEAL NO.16 OF 2015 APPEAL NO.17 OF 2015 APPEAL NO.18 OF 2015 CORAM : HONBLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HONBLE DR. AJAY A.DESHPANDE (EXPERT MEMBER) In the matter of: MA Nos .41 to 50/2015 with Page 2 of 12 Appeal Nos.09 to 18/2015.(WZ) MRS. ROSA MARIA FERNANDES, Residing at H.No.832, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.41/2015) RESPONDENT . APPEAL NO.10 OF 2015 (WZ) In the matter of: MRS. PERPETUA FERNANDES, Residing at H.No.826, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.42/2015) RESPONDENT . APPEAL NO.11 OF 2015 (WZ) MA Nos .41 to 50/2015 with Page 3 of 12 Appeal Nos.09 to 18/2015.(WZ) In the matter of:

1. SHRI. LOUIS PEREIRA & ORS,

2. MS. MARGARIDA FERNANDES,

3. MR.DOMNIC SAVIO PEREIRA, All Residing at H.No.827, Camotim Vaddo, Candolim, Bardez Goa. APPELANTS VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.43/2015) RESPONDENT . APPEAL NO.12 OF 2015 (WZ) In the matter of: MRS. ROSALINA MASCARENHAS, Residing at H.No.826, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.44/2015) RESPONDENT . MA Nos .41 to 50/2015 with Page 4 of 12 Appeal Nos.09 to 18/2015.(WZ) APPEAL NO.13 OF 2015 (WZ) In the matter of: SHRI JOHN PIRES, Residing at H.No.847, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.45/2015) RESPONDENT . APPEAL NO.13 OF 2015 (WZ) In the matter of: MRS. ISABELA PERPETUA CARDOZ, Residing at H.No.845, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, MA Nos .41 to 50/2015 with Page 5 of 12 Appeal Nos.09 to 18/2015.(WZ) Patto, Panaji-Goa. (with MISC. APPLICATION No.46/2015) RESPONDENT . APPEAL NO.15 OF 2015 (WZ) In the matter of:

1. SHRI. ANTHNY CARDOZ,

2. SMT JESSLE CARDOZO, Residing at H.No.824, Camotim Vaddo, Candolim, Bardez Goa. APPELANTS VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.47/2015) RESPONDENT . APPEAL NO.16 OF 2015 (WZ) In the matter of: SHRI. SANTANA JOSE PIURES, Residing at H.No.847, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, MA Nos .41 to 50/2015 with Page 6 of 12 Appeal Nos.09 to 18/2015.(WZ) Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.48/2015) RESPONDENT . APPEAL NO.17 OF 2015 (WZ) In the matter of: MRS. MILAGRIN DSOUZA, Residing at H.No.831, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.49/2015) RESPONDENT . APPEAL NO.18 OF 2015 (WZ) In the matter of: MRS. ROMANA FERANDES, Residing at H.No.831, Camotim Vaddo, Candolim, Bardez Goa. . APPELANT VERSUS MA Nos .41 to 50/2015 with Page 7 of 12 Appeal Nos.09 to 18/2015.(WZ) GOA COASTAL ZONE MANAGEMENT AUTHORITY, Through Member Secretary, Dempo Towers, Patto, Panaji-Goa. (with MISC. APPLICATION No.50/2015) RESPONDENT Counsel for Applicant(s): Asha Desai a/w Mr. Amrut Gorsale. Counsel for Respondent(s): F.M.Mesquita

1. There was complaint made by one Betty Alvares regarding various illegal constructions in CRZ area of Candolim. The complaint was not being inquired into due to paucity of proper manpower and time available to the Committee of GCZMA. Therefore, by intervention of NGT (WZ) a Small Inquiry Committee was appointed under the chairmanship of learned District Judge (Ms. Nutan Sardessai). The Inquiry Committee conducted due inquiry by calling relevant record and the present Date : MAY 14TH, 2015. P.C. MA Nos .41 to 50/2015 with Page 8 of 12 Appeal Nos.09 to 18/2015.(WZ) Appellant in the said matter. They were served with Notices. They were heard.

2. On basis of report of the Small Inquiry Committee, GCZMA passed orders, which are impugned in the present Appeals. The GCZMA entirely relied upon report of the Small Inquiry Committee, holding that findings of the Small Inquiry Committee had to be accepted as it is and there was no need to give further hearing to the Appellants, since the Appellants were already heard by the Small Inquiry Committee in the open Court. The GCZMA thereafter concluded that hearing before the Small Inquiry Committee was enough and fair hearing for the purpose of concluding the proceedings. Based upon such findings, without giving any further opportunity to the Appellants, the impugned orders came to be passed. It is undisputed that by passing impugned orders, the Appellants are directed to demolish the structure or its some portion which is found to be illegal as alleged.

3. The only question is whether the procedure followed by GCZMA can be regarded as proper, legal and correct. The work of Small Inquiry Committee was like that of a Court Commissioner. The Small Inquiry MA Nos .41 to 50/2015 with Page 9 of 12 Appeal Nos.09 to 18/2015.(WZ) Committee was required to examine the facts, loco and relevant record, but ultimate decision making authority was the GCZMA. The GCZMA could not have abdicated its responsibility in any manner. This Tribunal also did not delegate powers of GCZMA to the Small Inquiry Committee by any specific order. Under the circumstances, hearing of the matter by the Small Inquiry Committee in the open Court by examining documents and calling upon the Appellants will not suffice the purpose. The Appellants were required to be heard by the GCZMA. Although, it could be perhaps felt as duality and the same exercise, but it could have sometimes caused revelation of certain more facts which could not have been brought to the notice of GCZMA, the facts which are already not put on record. The Appellants could not be deprived of such opportunity only because it amounts to second hearing. There is no embargo in Law for giving second opportunity of hearing.

4. Learned Advocate Asha Desai relied upon Ch. Anita and Ors vs. State of Andhra Pradesh and Ors (AIR 2001/Ap 236,) It is observed that: The Principles of natural justice are not embodied rules and, therefore, it is not possible nor practicable to precisely MA Nos .41 to 50/2015 with Page 10 of 12 Appeal Nos.09 to 18/2015.(WZ) define the parameters of natural justice; that the aim of these rules is to secure justice or to prevent miscarriage of justice and notto thwart justice; that there is no invariable standard of reasonableness in the matter of hearing and whether in a particular case natural justice has been contravened or not is ultimately for the Courts to decide. The Supreme Court in Union of India v. J.N.Sinha and C.B. Boarding and Lodging v. State of Mysore, opined that each case has to be decided on its own merits. In Mineral Development Ltd v. State of Bihar, the Supreme Court observed that concept of fair hearing is an elastic one and is not susceptible of easy and precise definition. Again, the Supreme Court in FEDCO v.S.N.Bilgrami, observed that there can be no invariable standard for reasonableness in such matters except that the Courts conscience must be satisfied that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him and that the ground on which the action is proposed are either nonexistent, or even if they exist, they do not justify the proposed action. The Court decision on this question will necessarily and invariably depend upon the peculiar facts and circumstances of each case, including the nature of the decision making body, the nature of the action proposed, the grounds on which the action is proposed, the materials on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him, his admissions by conduct or otherwise of some or MA Nos .41 to 50/2015 with Page 11 of 12 Appeal Nos.09 to 18/2015.(WZ) all the allegations, the effect of the ruling made and all other matters which help the mind of the authority in coming to a fair conclusion on the question. In Maneka Gandhi v. Union of India, the Supreme Court was pleased to observe (Para 61) The rules of natural justice are not embodied rules. What particular rules of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case. In A.K.Roy v. Union of India, the Supreme Court talking of natural justice in the context of preventive detention has emphasized that rules of natural justice are not rigid norms of unchanging context and the ambit of those rules must vary according to the context and they have to be tailored to suit the nature of the proceedings in relation to which the particular right is claimed as a component of natural justice. We deem it proper to accept arguments of learned Advocate Asha Desai in this context.

5. It may, however, be necessary to expedite disposal of the matters in view of checkered history. MA Nos .41 to 50/2015 with Page 12 of 12 Appeal Nos.09 to 18/2015.(WZ) The Appellants shall, therefore, appear before the GCZMA on 29th May, 2015. The additional affidavit/reply if any, that may be needed to be filed if the Appellant desires to before the GCZMA, be filed within ten (10) days. The GCZMA shall complete hearing and decision making process thereafter within three (3) weeks and no further pleadings are required, because learned Advocate Asha Desai, states that already reply has been filed and pleadings are complete before the GCZMA. All the Misc. Applications and Appeals are disposed of. No costs. .., JM (Justice V. R. Kingaonkar) ., EM (Dr.Ajay A. Deshpande) Date: May 14th, 2015. hkk MA Nos .41 to 50/2015 with Page 13 of 12 Appeal Nos.09 to 18/2015.(WZ)

Mrs. Rosalina Mascarenhas v. Goa Coastal Zone Management Authority

Summary of National Green Tribunal (Western Zone) Opinion — MA Nos.41–50/2015 & Appeal Nos.09–18/2015

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as recorded)

Respondent's Position (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mrs. Rosalina Mascarenhas v. Goa Coastal Zone Management Authority

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