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Mrs.Isabela Perpetua Cardoz v. Goa Coastal Zone
Summary of National Green Tribunal (Western Zone) Opinion — MA Nos.41–50 / Appeal Nos.09–18 of 2015 (Date: 14 May 2015)
Factual and Procedural Background
A complaint was made by one Betty Alvares alleging various illegal constructions in the Coastal Regulation Zone (CRZ) area of Candolim, Goa. Because the Goa Coastal Zone Management Authority (GCZMA) lacked sufficient manpower and time to inquire into the complaint, the NGT (Western Zone) intervened and appointed a Small Inquiry Committee chaired by the District Judge (Ms. Nutan Sardessai).
The Small Inquiry Committee conducted an inquiry, examined records, served notices on the persons later styled as Appellants, and heard them in open court. On the basis of the Small Inquiry Committee's report, the GCZMA passed impugned orders directing demolition (or partial demolition) of structures found illegal. The GCZMA relied entirely on the Committee's report and did not afford further hearing before itself, taking the view that the hearing before the Small Inquiry Committee sufficed as fair hearing.
The affected persons filed appeals (Appeal Nos.09 to 18 of 2015) and miscellaneous applications (MA Nos.41 to 50 of 2015) before the NGT (WZ). The present opinion addresses those matters and the sole procedural/legal question arising from the conduct of the GCZMA.
Legal Issues Presented
- Whether the procedure followed by the Goa Coastal Zone Management Authority — namely, relying exclusively on the report and hearing conducted by the Small Inquiry Committee and not giving a further hearing before the GCZMA itself — was proper, legal and correct under the principles of natural justice.
Arguments of the Parties
Appellant's Arguments
- Advocate Asha Desai relied upon authorities concerning the principles of natural justice (including Ch. Anita & Ors v. State of Andhra Pradesh & Ors and other Supreme Court decisions) to contend that the Appellants were entitled to be heard by the GCZMA itself and that hearing only before the Small Inquiry Committee was not sufficient.
- It was asserted that the rules of natural justice are flexible and must be tailored to the facts and context of the proceedings; therefore the Appellants should be given an opportunity to be heard before the final decision-making authority (GCZMA).
- Advocate Asha Desai stated that replies had already been filed and that pleadings before GCZMA were complete; she also sought a further opportunity for the Appellants to appear before GCZMA as necessary.
The opinion does not contain a detailed account of any specific arguments advanced on behalf of the Respondent (GCZMA) beyond the factual statement that GCZMA relied upon the report of the Small Inquiry Committee and considered the prior hearing before that Committee as sufficient.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ch. Anita & Ors v. State of Andhra Pradesh & Ors (AIR 2001/Ap 236) | Support for the proposition that principles of natural justice are not rigid, and each case must be examined on its own facts; the aim is to secure justice and prevent miscarriage of justice rather than to thwart it. | The Court recorded reliance on this authority (as cited by Advocate Asha Desai) to emphasize the flexible, fact-sensitive nature of natural justice and to justify requiring the GCZMA to hear the Appellants itself. |
| Union of India v. J.N. Sinha | Authority for the view that each case must be decided on its own merits when considering natural justice issues. | Cited to support the proposition that the requirement of fair hearing will depend on the facts of each case; the Court accepted this general principle when assessing whether GCZMA's procedure was adequate. |
| C.B. Boarding and Lodging v. State of Mysore | Similar support for case-by-case adjudication of natural justice requirements. | Applied as part of the body of authorities showing that there is no fixed invariable standard of hearing; used to back the decision that appellants should be heard by GCZMA. |
| Mineral Development Ltd v. State of Bihar | Stating that the concept of fair hearing is elastic and not susceptible to precise definition. | Quoted to underline that fairness must be tailored to the proceedings at hand; the Court relied on this authority in concluding the Small Inquiry Committee hearing was not a substitute for hearing by GCZMA. |
| FEDCO v. S.N. Bilgrami | That there can be no invariable standard for reasonableness in matters of hearing; the court's conscience must be satisfied that the person has had a fair chance to convince the authority proposing action. | Relied upon to show that the adequacy of hearing requires satisfaction that the affected person had a fair opportunity; the NGT used this reasoning to require a hearing before GCZMA itself. |
| Maneka Gandhi v. Union of India | Emphasis that rules of natural justice depend on facts, circumstances, framework of law, and constitution of the tribunal; court must decide whether observance was necessary for a just decision. | Cited and reiterated by the Tribunal to justify assessing whether a second hearing before the GCZMA was necessary; the Court accepted the authority's flexible approach to natural justice. |
| A.K. Roy v. Union of India | That natural justice rules are not rigid and must vary according to context; they must be tailored to the nature of proceedings. | Relied upon by the Tribunal to support the proposition that GCZMA could not abdicate its decision-making responsibility and that appellants should be heard by the final decision-maker. |
Court's Reasoning and Analysis
The Tribunal summarized the factual matrix: a complaint of illegal CRZ constructions, an inquiry by a Small Inquiry Committee (appointed by NGT WZ), the Committee's examination of records and hearing of the Appellants, followed by GCZMA's adoption of the Committee's findings and issuance of demolition orders without further hearing before GCZMA.
The Tribunal proceeded to analyze whether the procedure followed by GCZMA was proper:
- The Small Inquiry Committee functioned in a role analogous to a Court Commissioner: it examined facts, visited the locus (loco), and called relevant records. However, the Tribunal emphasized that ultimate decision-making authority rested with the GCZMA and that GCZMA could not abdicate this responsibility.
- The Tribunal noted that it had not delegated GCZMA's powers to the Small Inquiry Committee by any specific order; therefore a hearing before the Committee did not automatically relieve GCZMA of its duty to hear the parties before making a final decision.
- The Tribunal accepted the legal submissions of Advocate Asha Desai that principles of natural justice are flexible and context-dependent, citing multiple Supreme Court authorities to that effect. It observed that although a second hearing may appear duplicative, it can reveal additional facts that were not previously placed on record and could affect the decision.
- On that basis, the Tribunal concluded that hearing solely before the Small Inquiry Committee did not suffice as a hearing before the GCZMA; the Appellants were entitled to be heard by the GCZMA itself.
Having reached that legal conclusion, the Tribunal set an expeditious procedural course: the Appellants were directed to appear before the GCZMA on 29 May 2015; any additional affidavit or reply to be filed within ten days; GCZMA to complete hearing and decision-making within three weeks; and no further pleadings would be permitted as the Appellant's counsel stated that replies had already been filed.
Holding and Implications
Holding: All the Miscellaneous Applications and Appeals are disposed of.
Direct consequences and procedural directions ordered by the Tribunal:
- The Appellants shall appear before the Goa Coastal Zone Management Authority (GCZMA) on 29 May 2015.
- Any additional affidavit or reply that the Appellants wish to file must be submitted within ten (10) days.
- The GCZMA shall complete the hearing and decision-making process thereafter within three (3) weeks.
- No further pleadings were to be allowed because the Appellant's counsel stated that replies had already been filed and pleadings were complete before the GCZMA.
- No costs were awarded.
Implications beyond the parties: The opinion applies established principles of natural justice to the facts and requires that the final decision-making authority (GCZMA) itself hear affected persons before issuing final orders. The Tribunal did not state that it was laying down a new legal precedent; rather it applied existing authorities to the particular facts and ordered further adherence to fair hearing procedures by GCZMA in the instant matters.
Signed: JM (Justice V. R. Kingaonkar) and EM (Dr. Ajay A. Deshpande) — Date: May 14th, 2015.
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)
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