Oral Judgment: (F.M. Reis, J.)
1. Heard Shri Vernekar, the learned Counsel appearing for the petitioner in both the petitions, Ms. S. Mordekar, the learned Additional Government Advocate for the respondent no.2 (GCZMA, for short) in W.P.No.817/2011 and Shri S. Dhargalkar, the learned Additional Government Advocate for the respondent no.1 (GCZMA, for short) in W.P.No.155/2010.
2. Both the above writ petitions were taken up together by consent of the learned Counsel appearing for the respective parties, as the disputed structures are in respect of the properties belonging to the petitioners and the parties to the petitions are the same.
3. Shri Vernekar, the learned Counsel for the petitioners, in support of the above Writ Petitions, has taken us through the impugned order dated 15/11/2011 passed by the GCZMA and pointed out from the chart therein that the property bearing Survey No.243/15 shows the structures A, B, C, D, E, F, G, H, I and J as shown in the DSLR Plan, which is marked 'X' for identification. The learned Counsel has pointed out that the structure denominated by letter A, located in Survey No.243/15 is the Transformer having an area of 20 square metres located in the property belonging to the petitioners. The learned Counsel points out that as far as such Transformer is concerned, it is an utility service provided by the Electricity Department to supply electricity not only to the petitioners, but also to the adjoining structures belonging to other owners. The learned Counsel further points out that there is no violation of CRZ Notification, 1991 as within the NDZ area, such utility service can be located. The learned Counsel, as such, points out that as far as the Transformer is concerned, the impugned order passed by the GCZMA cannot be sustained. The learned Counsel appearing for the petitioners, thereafter, points out that as far as structure denominated by letter B referred to at serial no.2 in the said order is concerned, it deals with the structure having an area of 650 square metres. The learned Counsel further points out that according to GCZMA, the area permissible for such structure admeasures 418 square metres. The learned Counsel further submits that as far as the said structure is concerned, the petitioners have already demolished the excess area and according to him, the area of the said structure at loco, admeasures 418 square metres, and as such is in conformity with the sanction limit. Shri Vernekar further points out that as far as the structure denominated by letter C at serial no.3 is concerned, it deals with Septic Tank, which, according to him, is shown in the GSCE plan at Exhibit D Colly, which is at page no.72 of W.P. No.817/2011, in three different locations. The learned Counsel further points out that it is well settled that after carrying out a construction in NDZ area, the occupant cannot exceed the plinth area, coverage or the FAR of the existing structure and it need not necessarily be at the said location. The learned Counsel further points out that the petitioners have constructed a Sewage Septic Tank in the said area of the property belonging to the petitioners bearing Survey No.243/15, as according to him, such activity is permissible activity in terms of CRZ Notification, 1991. The learned Counsel has taken us through the permissibility activity in CRZ-III. The learned Counsel further points out that Sewage Treatment Plant, after obtaining permission from Pollution Control Board, is permissible. The learned Counsel has submitted that the petitioners have filed an application for regularisation of the Sewage Septic Plant before GCZMA, which came to be rejected only on the ground that such Sewage Treatment Plant was located in the NDZ area. The learned Counsel further points out that this finding has no basis in law, as according to him, the CRZ Notification clearly discloses that such activity is permissible activity within CRZ-III and surrounded area. Shri Vernekar, the learned Counsel appearing for the petitioner further points out that as far as the structure denominated by letter D is concerned, it concerns the well, which is shown in GSCE plan, which is at page no.72 of W.P. No.817/2011 and as such, the impugned order passed by GCZMA cannot be sustained as it was permissible activity as shown in the said plan. The learned Counsel further submits that as far as the structures denominated by letters F, G and H are concerned, the GCZMA has taken a view that the structures admeasure 215 square metres, whereas the permissible area is 187.93 square metres. The learned Counsel further points out that the petitioners have already demolished excess area and according to him, the area as it stands today at loco admeasures 187.93 square metres. The learned Counsel further points out that as far as structure denominated by letter I is concerned, there is no dispute that the actual area is much less than the area, which is permissible, as shown in the said plan. As far as the structure denominated by letter J is concerned, Shri Vernekar has pointed out that it deals with the structure having an area of 175 square metres, though according to him, the authorities have failed to consider that the structure admeasuring 92 square metres was permissible, as shown in the GSCE Plan, which is at page no.72 of W.P. No.817/2011, which fact has not been considered by the Authority, while directing demolition of the structure. The learned Counsel has pointed out that the petitioners have already demolished the excess area and according to him, the area at loco in respect of such structure denominated by letter J admeasures an area of 92 square metres. The learned Counsel, as such, points out that as far as the structures denominated by letters B, E, F, G, H and I are concerned, the petitioners accept the order passed by the GCZMA, as according to him, the excess area has been demolished.
4. On the other hand, Ms. Mordekar, the learned Additional Government Advocate for the GCZMA (respondent no.2 in W.P.No.817/2011) and Shri S. Dhargalkar, the learned Additional Government Advocate for the GCZMA (respondent no.1 in W.P.No.155/2010) have pointed out that on the basis of the contentions of Shri Vernekar, the learned Counsel appearing for the petitioners, the dispute in the present petitions is only in respect of four structures, namely the structure denominated by letter A, which is a Transformer, the structure denominated by letter C, which is a Sewage Septic Tank, the structure denominated by letter D, which is a well and the structure denominated by letter J, which according to the petitioners, is now admeasuring 92 square metres. The learned Additional Government Advocates further submit that the order of the GCZMA in connection with the structures denominated by letters B, E, F, G, H and I are concerned stands concluded and is final. The learned Additional Government Advocates further point out that the GCZMA does not accept at this stage whether such constructions have in fact been demolished by the petitioners, but however, the GCZMA will examine the said aspects in accordance with law. As far as Transformer is concerned, the learned Additional Government Advocates appearing for the GCZMA have submitted that it cannot be disputed that such Transformer was erected as utility service for the benefit of the petitioners. The learned Additional Government Advocates also do not dispute that such utility service is permissible in the CRZIII area as notified in CRZ Notification. The learned Additional Government Advocates further submitted that the petitioners may file an appropriate application to seek permission with that regard. As far as the well is concerned, the learned Additional Government Advocate fairly accept that in the GSCE Plan, which is at page no.72 of W.P. No.817/2011, the well has been shown and as such, as far as such well is concerned, as shown by letter denominated as D in the said impugned order, passed by the GCZMA, the impugned order would not survive. The learned Additional Government Advocates submit that this Court may pass appropriate orders in accordance with law as far as the structure denominated by letter C is concerned, which deals with Septic Tank. The learned Additional Government Advocates submit that the GCZMA will examine the matter in the context of the contention of Shri Vernekar that the GSCE Plan discloses three Sewage Septic Plants in the property bearing Survey No.243/15.
5. Shri Shivan Dessai, the learned Counsel for the respondent no.2 in W.P. No.804/2009 has vehemently opposed granting any relief in favour of the petitioners. The learned Counsel has submitted that even to erect a pole in NDZ area, the permission from the concerned Authorities is required, and as such the question of granting any liberty to the petitioners would not be justified. The learned Counsel strongly disputes the contention of the learned Counsel for the petitioners to the effect that the constructions have been demolished to bring them within the area permissible in terms of the impugned order passed by the GCZMA. The learned Counsel further points out that in such circumstances, it would be appropriate to remand the whole matter to the GCZMA to examine the matter in accordance with law.
6. We have considered the rival submissions made by the learned Counsel for the parties and with the assistance of the learned Counsel for the parties, we have also gone through the record.
7. The learned Additional Government Advocate for the Authority have correctly submitted that the dispute, which arises in the present petition, is restricted to four structures, namely structures A, C, D and J. As far as structure denominated by letter A is concerned, the photographs and other material produced on record suggest that the said Transformer has been erected by the Electricity Department. That the erection of the Transformer is an utility service, has not been disputed by the learned Additional Government Advocates appearing for the GCZMA. On perusal of the CRZ Notification, it appears that such utility service is permissible activity as referred to therein. In such circumstances, the impugned order of the GCZMA, directing the demolition of the Transformer, specially considering that the Electricity Department was not a party before the authority, cannot be sustained and deserves to be quashed and set aside. To that extent the impugned order with regard to the structure denominated by letter A stands quashed and set aside.
8. As far as the structure denominated by letter C is concerned, on perusal of the impugned order passed by the GCZMA while disposing of the application filed by the petitioners for regularisation of the Septic Tank is concerned, we find that such application was rejected only on the ground that such Sewage Treatment Plant was located in the NDZ area. But however, on perusal of the CRZ Notification, we find that the Sewage Treatment Plant, constructed upon the consent from the Pollution Control Board, is a permissible activity. As such, the ground on which the application for regularisation has been rejected, prima facie cannot be sustained and deserves to be quashed and set aside. In such circumstances, the GCZMA is directed to examine the application dated 16/04/2010 filed by the petitioners for regularisation afresh, after hearing the parties in accordance with law.
9. As far as the structure denominated by letter J is concerned, on perusal of the GSCE plan, which is at page no.61 in W.P.No.155/2010, we find that the structure admeasuring 92 square metres is prima facie shown therein. Whether such structure corresponds to the area of 175 square metres referred to in the impugned order, is a matter, which the GCZMA would have to examine afresh. It is the contention of Shri Vernekar, the learned Counsel for petitioners that the structure has now been reduced to 92 square metres, which according to him, is in consonance with the GSCE plan. However, this aspect will have to be examined by the GCZMA, afresh after hearing the petitioners and the other parties in accordance with law. To that extent, the impugned order passed by the GCZMA is set aside and the matter would have to be reexamined in the light of the observations made above.
10. As far as the structure denominated by letter D is concerned, considering that the well is shown in the GSCE plan, which is at page 72 in W.P. No.817/2011, which aspect has not been considered by the GCZMA whilst passing the impugned order, we find that to that extent, the impugned order of the GCZMA in respect of the structure denominated by letter D is concerned, cannot be sustained and deserves to be quashed and aside.
11. In view of the above, we pass the following order:
ORDER
(i) As far as the structures denominated by letters A and D are concerned, the impugned order dated 15/11/2011 passed by the GCZMA is quashed and set aside.
(ii) With regard to the structure denominated by letter C, the impugned order dated 15/11/2011 passed by the GCZMA is quashed and set aside. But however, the matter is remanded to the GCZMA to consider the application dated 16/04/2010 filed by the petitioners afresh in the light of the observations made hereinabove, after hearing the parties in accordance with law.
(iii) With regard to the structure denominated by letter J, the impugned order dated 15/11/2011 passed by the GCZMA is quashed and set aside and the GCZMA is directed to examine the said aspect afresh, after hearing the petitioners and other concerned parties in the light of the observations made hereinabove, in accordance with law.
(iv) With regard to the remaining structures denominated by letters B, E, F, G, H and I are concerned, the impugned order passed by the GCZMA stands confirmed.
(v) Rule is made absolute in the above terms, with no order as to costs.