Bombay HC in Remedios D'Cunha & Ors. vs. State of Goa & Ors. [22.09.2021]

IN THE HIGH COURT OF BOMBAY AT GOA

PIL Writ Petition No. 15/2020 and Misc. Civil Application No. 86/2021

Decided On: 22.09.2021

Remedios D'Cunha and Ors.

Vs.

The State of Goa and Ors.

Hon'ble Judges/Coram:

M.S. Sonak and M.S. Jawalkar, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: Nigel Costa Frias and Barbara Andrade, Advocates

For Respondents/Defendant: S. Dhargalkar, Additional Government Advocate, Vishwadh Sardessai, S. Karpe and Anand Shirodkar, Advocates

JUDGMENT

M.S. Sonak, J.

1. Heard Mr. Nigel Costa Frias for the Petitioners, Mr. S. Dhargalkar, learned Additional Government Advocate for the State, Mr. Vishwadh Sardessai for Respondent No. 7 and Mr. S. Karpe for Respondent No. 9.

2. The petitioners seek an appropriate writ, order, or direction commanding the respondents to stop the construction activities/construction of the proposed by-pass road at Chinchinim over properties bearing Survey Nos. 44/1, 44/2, 44/13 and water bodies bearing Survey Nos. 45/1, 45/15, 45/15(Part) i.e. lote no. 306 and for restoration of these lands/water bodies to their original condition.

3. Mr. Costa Frias submits that the aforesaid relief is liable to be granted to the petitioners for the following reasons:

(a) That the aforesaid properties where the construction of the road has been commenced or continued constitute a Command Area as defined under Section 2(1) of the Goa Command Area Development Act, 1997. He submits that no construction of a road is permitted in such an area unless necessary permissions from the Command Area Development Board are obtained. He submits that since no such permissions have been applied for or obtained, the construction is required to be halted;

(b) The aforesaid properties are low-lying agricultural areas. The construction of the road involves filling of these areas. There is no permission under Section 17A of the Goa Town and Country Planning Act (TCP Act) obtained for such filling. Therefore, the construction of such road is required to be halted and the lands restored to their original condition.

(c) The construction of the roads is in breach of NOC dated 21.03.2005 issued by the Executive Engineer under the provisions of the Goa Irrigation Act, 1973. He submits that the NOC was only for the use of inspection path as a public road. There was no NOC for construction of a 10 mtr. wide road.

(d) The area surveyed under No. 45/15 is a "water body". This position has been confirmed by the Goa Biodiversity Board comprising experts. This position is clear from the acquisition map or for that matter the survey records. He submits that in terms of the Circular dated 17.05.2010 issued by the Chief Town Planner, no permission can be granted for construction over a water body unless the proposal is approved by a committee constituted vide Order No. 36/1/TCP/52/2010/1633 dated 17.05.2010 along with details of the proposal, site inspection report and part Regional Plan. Further, such approval has to be placed before the Government before any construction works can actually proceed.

4. Mr. Dhargalkar, learned Additional Government Advocate disputes the aforesaid contentions. He submits that there is no material placed on record to indicate that this is a Command Development Area. He submits that a petition to challenge the acquisition on this very ground has already been dismissed. He submits that no notification as contemplated by Section 17 or 18 has been produced by the petitioners. He submits that there is a dispute whether the areas are low-lying agricultural areas and in any case, the Circular dated 25.08.2011, makes it clear that the provisions of Section 17A of the TCP Act will not apply to works of widening or construction of road undertaken by the Public Works Department (PWD) or other Government agencies. He submits that this Circular has not been challenged in the present petition. He submits that necessary NOC has already been issued by the Executive Engineer, Water Resources Department (WRD) and there is no breach of the provisions of the Irrigation Act, 1973.

5. Mr. Dhargalkar submits that based on the pleadings as well as the material on record it cannot be said that the area under Survey No. 45/15 is a water body. He submits that the Biodiversity Board is not the appropriate authority to determine whether or not the area is a water body. He submits that the acquisition plans or other plans relied upon by the petitioners are misinterpreted by the petitioners. He submits that 125 sq.mtrs. from these areas was acquired sometime in the year 1990 for construction of a canal. He submits that the balance 75 sq.mtrs. has now been acquired for the purpose of road. He submits that the challenge based on the area being a water body is therefore quite misconceived and may be rejected.

6. Mr. Karpe, learned counsel for respondent no. 9- Contractor supports the contention of Mr. Dhargalkar, learned Additional Government Advocate.

7. Mr. Vishwadh Sardessai, learned counsel for the Goa Biodiversity Board stands by the affidavit filed by Dr. Pradip Sarmokadam, Member Secretary of the Goa State Biodiversity Board who has stated on oath that the area surveyed under No. 45/15 is indeed a water body. Mr. Sardessai refers to the report annexed to the affidavit and points out that even the Scientific Officer of the Goa State Wetland Authority (GSWA) and the officials of PWD were a part of the inspection team that prepared this report. He points out that even the list of the flora observations at the inspection site has been annexed to the inspection report.

8. The rival contentions now fall for our determination.

9. Insofar as the construction of the road on the properties which are the subject matter of this petition, except the property surveyed under No. 45/15, Chinchinim, are concerned, there is no case made out to halt the construction of the road. This construction, incidentally, has already been completed and the material placed on record by the petitioners is not at all sufficient to make good the grounds now raised in support of the petition. The material placed on record is only sufficient to make some orders in respect of the area surveyed under No. 45/15, which, can be accepted as a water body.

10. As was correctly pointed out by Mr. Dhargalkar, the acquisition of this property was challenged inter alia on the ground that the same is affected by the provisions of the Goa Command Area Development Act, 1997 and the rules made thereunder. This challenge was however turned down because the petitioners were unable to place sufficient material on record in support of their case under the provisions of the said Act or the said rules. Even now, no notification as contemplated by Section 17 or 18 of the said Act has been produced on record. Based, therefore, on some replies by some officials or other such material, it would be unsafe to order the removal of the construction of the road that is already completed over the properties in question except, the area surveyed under No. 45/15, where, the construction of the road was stayed and therefore, has not yet been put up.

11. On the aspect of permission under Section 17A of the TCP Act, reference is required to be made to the Circular dated 25.08.2011 issued by the Chief Town Planner. Clause 2 of this Circular reads as follows:

"2. Canal networks under the approved irrigation schemes by the Government, widening or construction of road involving cutting or filling which are pure engineering works by the PWD or any other Government agencies etc. shall not warrant additional permissions from the Chief Town Planner."

12. The aforesaid Circular though signed by the Chief Town Planner is purportedly issued by the Government on the recommendation of the Board. This Circular is not challenged in the present petition and therefore, we are not required to go into the larger issue as to whether this Circular is valid or not.

13. However, this is admittedly, a case of construction of a road undertaken by the PWD. Therefore, we do not think that we should order the removal of the construction already made if, based on the Circular dated 25.08.2011, the PWD and the other authorities were of the opinion that no specific permission under Section 17A of the TCP Act was required to be obtained. Therefore, in the peculiar facts of the present case, we do not think that this ground has been made good by the petitioners.

14. Again, the contention based on the NOC dated 21.03.2005 issued by the Executive Engineer, WRD, or breach of the provisions of the Goa Irrigation Act, 1973 has not been made good by the petitioners. The NOC refers to the use of the inspection path to the watercourse 14P at Chinchinim as a public road subject to certain conditions. There is no allegation about the breach of those conditions or in any case, the allegations are quite vague and not made good. Therefore, in the peculiar facts of the present case, we do not think that any case is made out to order the removal of the construction already made based on the ground as urged.

15. Finally, we now come to the proposed construction of the road over the area surveyed under No. 45/15 - the water body. There was an interim order made by us in this petition restraining the construction over this area and therefore, no construction has been made over this area.

16. Since there was a dispute raised as to whether this area is a water body or not, an order was made by us requiring the Biodiversity Board - members to inspect the site and to file a report.

17. Accordingly, a joint site inspection was held on 02.09.2020, which was attended by the following persons/officials:

(1) Mrs. Reshma Kerkar, Scientific & Administrative Officer, Goa State Biodiversity Board (GSBB) Saligao. Bardez, Goa.

(2) Dr. Shaiesh Morajkar, Scientific Officer, Goa State Wetland Authority (GSWA), O/o GSBB, Saligao, Bardez, Goa.

(3) Mr. Nilesh Kanolkar, T.A., Public Works Department (PWD), Fatorda, Margao, Goa.

(4) Mr. Rajesh Harmalkar, Field Surveyor, Directorate of Settlement and Land Records (DSLR), Panaji, Goa.

(5) Ms. Inacina Rebello, Sarpanch, Chinchinim - Deussua Village Panchayat, Salcete. Goa.

(6) Ms. Reina Dias, Panch member of the ward bearing survey No. 45/15 in the Chinchinim - Deussua Village Panchayat, Salcete, Goa.

(7) Mrs. Mabel Menezes, Chairperson, Chinchinim-Deussua Biodiversity Management Committee (BMC), Salcete, Goa.

(8) Mr. Remedios D'Cunha, Petitioner, Resident of Village Chinchinim, Salcete, Goa.

(9) Mr. Terence D'Cunha, Resident of Village Chinchinim, Salcete, Goa.

(10) Mr. Malcom Pereira, Resident of Village Chinchinim, Salcete, Goa.

18. The site inspection report makes the following observations to be found in the report itself:

"1) There exist a water body known as "Valyacho Hondaro" on Survey No. 45/15 (area of 200 sq.mts.), which is partly landfilled. The visible flora (prominent presence of Nymphaea and Colocasia species) within the lake, exhibited characteristics of a typical freshwater ecosystem. The list of the flora observed at the inspection site is attached as Annexure III.

2) Due to the landfilling at Survey No. 45/15 and the influence of heavy rains, the adjacent land bearing Survey No. 45/10 and 45/11 has also been filled with water.

3) There exists a small outlet/drain under the landfilled for road construction, which allows the water from the water body to flow into the adjoining fields."

19. Based on the aforesaid observations, the site inspection report draws the following conclusions and makes the following recommendations:

"Conclusion:

In accordance with the LD-VC-OCW NO. 106 of 2020 in PIL Writ Petition no. 15 of 2020 order of the Hon'ble High Court of Bombay at Goa dated: 02.09.2020, GSBB verified in the presence of GSWA, BMC, and DSLR officials, that there exists a water body at survey No. 45/15 which is partly landfilled by WRD for Building a Canal.

Recommendation: It is recommended that the existing landfilling at the site at survey No. 45/15 may be restored and the road along with the canal may be constructed on a stilt for the water body at survey No. 45/15.

Note: The Photo proofs of the Site inspection are placed herewith as Annexure IV."

20. Dr. Pradip Sarmokadam, Member Secretary of the Goa Biodiversity Board has filed an affidavit to place on record the site inspection report as aforesaid. In his affidavit, he has stated that he is filing his reply to bring the correct and factual position on record insofar as the property surveyed under No. 45/15 of Chinchinim Village is concerned. Paragraphs 6 and 7 of the affidavit filed by the Member Secretary of the Goa Biodiversity Board read as follows:

"6. I state that as per the Report prepared by the Scientific Officer (GSWA), Scientific and Administrative Officer (GSBB), and Field Surveyor (DSLR) it is revealed that there exists a water body on the land bearing survey no. 45/15. I state that the Field Surveyor, DSLR with the help of the Survey map confirmed that there existed a water body covering the survey no. 45/15. I further state that it is observed that out of the 200 mts. of the water body, about 115 sq. mts. has been filled with mud apparently for the purpose of construction of canal and 75 sq.mts. has been acquired for construction of road for which landfilling was being undertaken by the PWD for By-pass road construction at Chinchinim Village.

Hereto Annexed and marked as "ANNEXURE A" is a Report of the Joint site inspection of property bearing survey no. 45/15 along with the supporting documents.

7. I state that the said water body is known as 'Valyacho Hondaro' in survey no. 45/15. I further state that based on the report annexed herewith it is recommended that the water body may be restored and the road along with the canal may be constructed on a stilt so that the water body is maintained."

21. Based on the site inspection report as also the affidavit filed on behalf of the Goa Biodiversity Board, it does appear that the area surveyed under No. 45/15 is indeed a water body.

22. Besides, even the plan for acquisition of the property indicates that the area surveyed under No. 45/15 was a water body or a pond. The petitioners have placed on record a report from a private surveyor. This surveyor has referred to the old Communidade records in which again, this area is shown as a pond or water body.

23. Based on the aforesaid material on record, we are satisfied that the area surveyed under No. 45/15 is indeed a water body. The contentions of Mr. Dhargalkar to the contrary cannot be accepted. The site inspection report itself reveals that even the PWD engineers were a part of the team that inspected the site. The PWD engineers have not even bothered to place any note of dissent. Besides, the inspection team included inter alia Dr. Shailesh Morajkar, Scientific Officer of GSWA.

24. Rule 2(g) of the Wetland Conservation and Management Rules, 2017 defines "wetland" in the following terms:

"(g) "wetland" means an area of marsh, fen, peatland or water; whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters, but does not include river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes;"

25. Having regard to the material on record, it is not possible to accept the contentions of Mr. Dhargalkar that the area surveyed under No. 45/15 is not at all a water body or that it is only some man-made depression in the field, in which water gets stored during the rainy season.

26. The Chief Town Planner has issued a Circular dated 17.05.2010 which is relevant and therefore, the same is transcribed below for the convenience of reference:

"CIRCULAR

Date: 17/5/2010

The Town & Country Planning Board in its 136th meeting held on 16/4/2010 has decided that no construction/development shall be allowed in the following areas:

a) Notified forest.

b) Private forest identified by Karaporkar Committee and Sawant Committee.

c) Sloppy land having gradient more than 25%.

d) Mangroves areas.

e) Water bodies.

f) Cultivated paddy fields (low lying and presently under cultivation)

Accordingly, it is hereby directed that no NOC for construction/sub-division of land as well as recommendation for conversion of use of land shall be issued in above-referred areas from a) to f). Further, the proposals falling within above category but the land under reference is earmarked as developable zone i.e. Settlement zone and Industrial zone to be submitted to the Chief Town Planner in order to place before the Committee constituted vide Order No. 36/1/TCP/S2/2010/1633 dated 17/5/2010 along with details of the proposal, site inspection report and part Regional Plan showing interpretation of the land under reference, etc. The decision/recommendation of the Committee in such cases to be placed before the Town & County Planning Board and then refer to Government for consideration."

27. In this case, admittedly, there was no reference made to the Committee referred to in the Circular and thereafter any approval obtained from the Government. Mr. Dhargalkar submitted that this course of action was not followed because according to the respondents the area surveyed under No. 45/15 is not a water body at all. Now that we have found that this area was indeed a water body, there has to be compliance with the Circular dated 17.05.2010 because the respondents proposed to construct a road over a water body. Since this has not been done, it would not be appropriate to proceed with the construction of the road over the water body surveyed under No. 45/15.

28. The Hon'ble Supreme Court in Jagpal Singh & Ors. v. State of Punjab & Ors. (2011) 11 SCC 396 made the following observations in the context of conservation and protection of water bodies:

"18. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, MANU/SC/0410/2001 : AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, MANU/TN/0660/2005 : 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop."

29. For all the aforesaid reasons, we restrain the respondents from undertaking any construction over the water body surveyed under No. 45/15 until the respondents comply with what is set out in the Circular dated 17.05.2010 issued by the Chief Town Planner.

30. The Rule in this petition is made partly absolute to the aforesaid extent only.

31. There shall be no order as to costs.

32. The Miscellaneous Civil Application No. 86 of 2021 does not survive and is accordingly disposed of.

News Clipping: State's SC affidavit in 2011 contrary to Bhumiputra bill [03.08.2021]

Panaji: The provisions of the Goa Bhumiputra Adhikarini Bill — which was passed by the state assembly on Friday and became a hot-button issue for many — is contrary to the affidavit filed by the state government in the Supreme Court in 2011, which said that it would clear encroachments on land belonging to the government, local authority or comunidade.

But legal experts said no affidavit, no existing statute and no executive or judicial order can put “fetters on the power of Parliament or state legislature”.

“The provisions of the Bhumiputra bill does not contravene the affidavit and even if it is made out that it contravenes, no affidavit can stand before the power of legislature. What is an affidavit after all? There can be no restrictions on the power to legislate,” legal commentator Prabhakar Timble told TOI.

The affidavit was filed in the case of Jagpal Singh vs State of Punjab, which pertained to encroachment on government and panchayat land. The SC had issued directions to all state governments to prepare schemes for the eviction of illegal, unauthorised occupants of land belonging to gram sabhas, gram panchayats and such bodies, and that these lands must be restored to the gram sabha or gram panchayat for the common use of villagers.

The top court further directed that the state government should “provide for speedy eviction of illegal occupants after giving a show cause notice and a brief hearing”.

“The state has in place the appropriate enactments to remove encroachments from the lands belonging to the government or local authority or comunidade,” then chief secretary Sanjay Srivastava had said.

He also said that any complaint received in respect of encroachment would be dealt with in accordance with the provisions of the above enactments, and action would be taken to clear the encroachment and restore the land to the local authority or government.

The Bhumiputra bill is set to allow the state to give the self-occupied dweller of a small housing unit ownership rights “so as to enable him to live with dignity and self-respect and exercise his right to life”. The state will give ownership to the government as well as private land, the bill said.

Timble said the affidavit only affirms that the state has a legal mechanism in place to deal with encroachments on public land. He said it also affirmed that any complaint received of any encroachment will be dealt with as per provisions in the existing laws.

“We are a parliamentary democracy. The supremacy of the legislature and separation of powers between the three organs of the government are a part and parcel of the basic structure of the Constitution. Even existing statutes could fall and be razed by the legislature,” Timble said.

As per the bill, after receipt of an application under Section 5, the Bhumiputra Adhikarini will publish a notice within 30 days, including to the owner of the land in case the land is not owned by the government.

“Dwelling unit”, according to the bill, refers to a permanent structure having plinth area not exceeding 250 sqm, which has been constructed or has been in existence before April 1, 2019, and assessed for house tax by the local authority and has water and electricity connections.

A Goan village is on the brink of victory to conserve a century-old lake

 Posted by Pamela D'Mello on 21 June 2019

 A community is actively pursuing the conservation of a Portuguese-era hilltop lake in north Goa.

The reservoir lies in a high-value real estate area which is being eyed by developers for construction projects.

In the latest progress, the citizen’s efforts have led to a consultation that will potentially declare the hilltop natural reservoir as a wetland, protecting it with a buffer zone.

On a rainy day last week, June 12, as cyclone Vayu was pelting rain on Goa, 400 villagers braving inclement weather, gathered at a community hall. They were there for Goa’s first consultation on the potential declaration of a hilltop natural reservoir, as a wetland. The consultation, called by the Goa State Wetland Authority was a hard-fought victory by villagers of Santa Cruz, a suburban area adjoining Goa’s capital Panjim. For the past decade, the people of Santa Cruz had tried every avenue to save their villages’ crowning glory, Bondvol Lake, a 110-year-old natural reservoir that collects rain and spring water over a 9.365-hectare submergence basin. Citizens have been actively pursuing their demand. They have held bike rallies, public meetings, mobilized special gram sabhas, taken awareness treks for school children, filed complaints, accompanied flying squads, photographed and videographed violations and dug into historical archive material to back their court petitions as well as lobbied with panchayat, politicians, and state government offices.

Since 2009, construction firms and land grabbers had stealthily damaged the lake’s drainage (sluice) valves, in a bid to dry out the lake and usurp the land. The natural forests around the lake were surreptitiously felled and kutcha (temporary) roads leading to the lake were constructed at the hilltop site, while goons posted at the site, scared off birders and other common citizens from approaching the lake area.

A community’s heritage

“Bondvol lake is officially owned by the local Calapor Comunidade (an ancient village land-owning institution in charge of common village lands). My great grandfather was one of the original gaonkars (villagers) that helped construct the lake. It has unique natural hydrology that collects rainwater from the hills that surround it on three sides. And on the fourth side, the villagers fortified an earthen embankment. In 1910, colonial authorities put in a valve and a spillway was created to irrigate the fields in the surrounding area,” said Calapor Comunidade attorney Peter Gonsalves (60).

Gonsalves made an impassioned plea to save the lake, at the June 12 consultation, “You can construct buildings. But water is a precious resource, and where we have it, we have to preserve it.”

In 2017, the Calapor Comunidade had moved the Bombay High Court’s Goa bench to seek protection for Bondvol Lake. Another citizen, Arturo D’Souza also filed a public interest petition in the High Court at the same time. While other villagers moved the National Green Tribunal.

“We, the villagers have decided that we will do what it takes to save our community asset, the Bondvol Lake,” said architect and teacher Elsa Fernandes (48).

Villagers became aware of the land mafia mischief at Bondvol, around six years ago, when they observed, using Google imagery, how the lake had degraded and depleted over the years. “Twenty-five years ago the lake was filled to the brim, with 15-meter-high water levels. Bondvol is located on top of a difficult-to-access dense forested hill, in a pristine environment. We knew the level was dropping, but nobody knew why. It was later that we realized it was manmade sabotage. The spillway was damaged and stones and mud in the embankment were being removed and fruit trees were being planted on the embankment itself, so the roots could further damage the dam,” said Fernandes.

A “Save Bondvol Lake” movement got traction in the 6,100-household village in 2016. Alert citizens noticed roads and construction firms gearing up to construct apartments on the lake’s periphery. While on its drying up the bed, a single-tenant was readying to usurp a vast track of the lake’s bed and convert community property to private ownership.

“We petitioned several government authorities, but had to finally approach the court for justice in 2017,” said petitioner Arturo D’Souza.

The High Court ordered the Water Resource Department to repair and refit the lake’s sluice valve. This provoked a community celebration at the site, with young and old turning up in numbers to witness the event. A year later, another celebration was held by villagers, when even in the hottest month of May, the restored valve saw the lake naturally rejuvenate itself. “Earlier, by November end, water would deplete. But last year, there was two meters of water even up to May end,” said Fernandes.In November 2017, the high court set up a task force to enumerate forest trees and demarcate a 200-meter area around the lake for a no-development buffer zone from the water’s edge.

Claiming back their environment

Pressure from villagers saw construction projects for row houses slowly move away. The movement petitioned the collector’s office against felling of trees obtaining a ‘stop work’ order against prominent builders. The last hurdle, villagers say is the claim by a single tenant over large areas of the lake bed. “We think it is illegal”, said Fernandes. The claim though is a case study of how  land mafias have grabbed village common lands and Comunidade land, misusing tenancy laws and backed by politically-connected land lobbies, she opined. What was earlier a tenancy lease from the Comunidade for just four months of the year, on a 550 sq m lot on the upper slopes of the dried out lake for a December-May third cropping season, got permanently formalized by lower courts through ex parte hearings. Finally, attempts were being made to usurp 21,000 sq m of the lake bed, misusing tenancy laws.

Land owning Comunidades were financially and politically hollowed out by post-1961 governments. In 1979, Comunidade members asked the water resource department to maintain the lake. But the WRD’s attempt to conserve the lake in 2009, was thwarted by a court injunction from the sole tenancy claimant. In the controversial pro-realtor 2011 Regional Plan, the area was zoned as settlement, with the construction industry readying to move in. A push back from citizens saw the area now zoned as environment heritage in the 2021 Regional Plan.

The final step for declaring Bondvol as a wetland complex

With the sluice valve repaired, and villagers now vigilant, the Save Bondvol Lake movement is hopeful the waterbody will be declared as a wetland ecosystem, to gain additional environmental protection for their community asset. The June 12 consultation was the first step. But villagers are worried that tenant claimants could still block the wetland declaration, through written submissions before the Wetland Authority Board.

The conservation of Bondvol was backed by the February 2018 Task Force on Bondvol Lake report. This underscored its qualification not just as a wetland in itself, but as a wetland complex, along with its downstream water bodies and conduits. The Task Force endorsed taking an ecosystem approach for Bondvol, mapping trees, shrubs and grasses and calling for the protection of the forested slopes outside the NDZ in the 2 square kilometer catchment area of the lake as well.

“We have our fingers crossed,” said Arturo D’Souza, as the Goa State Biodiversity Board conducts the seven days hearing of objections, before preparing and placing the Brief Document for its declaration as a wetland ecosystem before the state board for approval.

Article published by Aditi

https://india.mongabay.com/2019/06/a-goan-village-is-on-the-brink-of-victory-to-conserve-a-century-old-lake/

[1]

---

[1] The above news clipping is not related to the judgement on commons ,(Civil Appeal No. 1132/2011 @SLP(C) No. 3109/2011 ) however it has been added here due to its relevance to Commons .

Trespass, encroach, and the govt will legalize it

TNN | Feb 18, 2016, 11.27 AM IST

Panaji: The government's move to announce introduction of a bill to regularize illegal constructions is not a step in the right direction, as it is within the last year of impending assembly elections and will disappoint law-abiding citizens, sources said.

The government announced that it would introduce a bill to regularize illegal structures in the state, including on government, comunidade and private land.

"This is not a right step, as it comes within the last one year of governance and assembly elections and will only make mockery of all the honest law-abiding Goans who pride themselves on following the prevailing rules and regulations for constructions," Tulio de Souza, president-elect of Guirim comunidade said.

A sizeable number of encroachments on comunidade land are also sought to be given a legal status through the bill.

Citizens have also raised questions about the status of the existing laws and the objectives or the proposed law. "One wonders whether all laws like the Town and Country Planning Act, Village Panchayat Act, Municipalities Act, Land Revenue Code and the Code of Comunidades, would all be set aside in order to see that such a regularization of illegal constructions act supercedes all these acts," de Souza said.

Andre Pereira, secretary of association of components of comunidades said that it is not known at this stage under which enactment, the government proposes to legalize unauthorized structures.

"As far as illegal structures on comunidades are concerned, the government does not have competence to do it and the bill is only to keep the intended beneficiaries guessing for some time," Pereira said.

He pointed out that as in the Mayem case, where there are doubts on implementation of the law made for houses in evacuee property, it may be the same story here.


http://timesofindia.indiatimes.com/city/goa/Trespass-encroach-and-the-govt-will-legalize-it/articleshow/51035979.cms

NGO objects to Regularisation of unauthorised Structures & Encroachment Bill

Panaji| Saturday Oct 3, 2015 IST

The United Goan Foundation, an NGO, today claimed that Goa government is planning to boring Regularisation of Unauthorised Structures and Encroachment Bill which, if passed, will  supersede many other Acts.

Addressing a news conference here, Foundation secretary Avinash Tavares said the act titled Regularisation of Unauthorised Structures and Encroachment Bill 2015 would supersede Land Revenue Code, the Code of Communidades, the Town and Country Planning Act of 1974, the Municipalities Act and the Goa Panchayati Raj Act.

He said, "According to draft copy of the bill any structures which are constructed without any due permission on land belonging to Communidade, government on land reserved as open space and on land belonging to other individual either with or without consent shall be considered. This includes even those illegal structures which are built on land belonging to Forest Department including Wildlife Sanctuaries, eco-sensitive Coastal Regulation Zone areas, road widening or setback areas and even designated or notified No Development Zones on case to case basis.

"Clause 15 of the bill says the proposed legislation would have overriding powers not withstanding anything contained in any other law for the time being in force, inlcuding TCP, Regional Plan, Panchayat Raj Act, Municipality Act and Land Revenue Code," he said and pointed the act would allow regularisation on payment of penalty and rent for the number of years encroached but nowhere had the provision been made for payment to be made to the land looser, the original owner of the land.

He started that Supreme Court has passed a judgement in 2011 against illegal encroachment on Commons (Communidade land) and Public land, wherein it stated that "Regularising such illegalities must not be permitted because it (Common and public land) is Gram Sabha land which must be kept for the common use of village... We cannot allow the common interests of the villagers to suffer merely because the authorised occupation has subsisted for many years."

Stating that UGF would not allow any act to be passed by the government which would destroy identity and environment of Goa, if the bill was introduced in the Assembly, the UGF would approach courts against the government and would also agitate on the streets against the law, he added. UNI AKM SS SB PR2100.

http://news.webindia123.com/news/Articles/India/20151003/2693169.html

'Disputed land' in Tuem industrial estate inspected

TNN, Tuem, Goa

Nov 23, 2013

Panchayat minister Laxmikant Parsekar, along with officials from the PWD, forest, Goa Antibiotics and Pharmaceuticals Ltd (GAPL) and others inspected land that is in dispute in the Tuem industrial estate on Friday.

Sources told TOI that since the estate's boundaries are not properly fenced over 50 illegal houses have encroached on the land, while more are under construction. They further pointed out that 3,000 sq m of land belonging to Goa industrial development corporation (GIDC) was recently encroached on by a private builder who has constructed a compound wall.

GAPL officials brought to Parsekar's notice that about 40 illegal constructions have come up in land given to the company and that the firm has filed complaints which are being heard in court.

While the former sarpanch of the Tuem village panchayat, Prajakta Kannaik, has urged the government to regularize the houses and provide them with road and other government facilities, Parsekar said illegal houses on government land cannot be regularized as the law does not permit the same. He said he will try to work out an amicable solution.

"I will place the matter before the chief minister and the revenue minister to seek an amicable solution to the problem," Parsekar said after the inspection.

http://articles.timesofindia.indiatimes.com/2013-11-23/goa/44389023_1_tuem-prajakta-kannaik-government-land

© 2013 Bennett, Coleman & Co. Ltd.

'Moti Dongor demolition case judgment by next week'

TNN Jul 20, 2013, 02.54AM IST

MARGAO: The comunidades of Margao and Aquem have submitted their say in the slum demolition case, thereby paving the way for the administrator of comunidades to deliver the judgment in the case pertaining to demolition of the illegal structures at MotiDongor and Tolsanzor.

The comunidades, in their say, have countered all the claims made by the slum dwellers and raised objections to the demands for regularization of their structures, sources informed. Confirming this, administrator of comunidades Sangita Naik said that she will deliver the judgment in the case by next week.

At the recent hearings conducted by the administrator of comunidades, the affected slum dwellers had pleaded for regularization of their structures. The Moti Dongor residents had pointed out that the area where their structures stand has been notified as a slum area by the government and pleaded they should be rehabilitated in case the authorities decide to demolish the slums. The Tolsanzor residents had sought protection from demolition of their slums on the grounds that their applications for regularization of structures made to the district collector in 2002 were still pending.

Sources said that the comunidades of Margao and Aquem have taken strong exception to claims for regularization, citing a Supreme Court judgment in July 2011, in the case of Jagpal Singh vs state of Punjab and others.

The Supreme Court, in the said case, had come down heavily on encroachments on common lands in village communities in India, and inter-alia directed state governments 'to prepare schemes for speedy eviction of illegal/unauthorized occupants of such lands after giving a show-cause notice and brief hearing'. While dismissing the appeal filed by the appellant against the state of Punjab, the court observed thus: "Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as justification for condoning this illegal act or for regularizing the illegal possession." Chief secretaries of all states were directed to submit compliance report.

The then chief secretary Sanjay Srivastava had sworn an affidavit in the Supreme court assuring the court that 'the state has in place the appropriate enactments to remove encroachments from the lands belonging to the government or local authority or a comunidade'.

© 2013 Bennett, Coleman & Co. Ltd. All rights reserved.

http://articles.timesofindia.indiatimes.com/2013-07-20/goa/40695125_1_slum-demolition-case-tolsanzor-motidongor 

A big relief : A Supreme Court judgement serves as a deterrent to the indiscriminate land grab

Written by editor// July 9, 2012//National News//3 Comments

BY LESLIE ST. ANNE

Even as Goans lament and watch helplessly as the once verdant and fertile land of their ancestors, is sullied, raped and disfigured by huge housing complexes, innumerable hotels, specialty hospitals and white-elephant government projects put-up by unscrupulous builders from Delhi, Mumbai and Goa, ably abetted by pliant local politicians, an effective weapon of control wielded by the Country’s Apex Court lies with the State’s highest bureaucrat – the Chief Secretary.

The stalling of implementation of the Regional Plan 2021 notwithstanding, a judgment by the Supreme Court in dismissal of a Civil Appeal filed against the State of Punjab arising out of a Special Leave Petition (Civil) CC No.19869/2010 should have served as a deterrent to the indiscriminate land grab and use of ‘community lands and water bodies for purpose of housing and other ostensible government and private development projects —- which in Goa could certainly encompass Communidade properties.

The two member bench of the Supreme Court, comprising Honorable Justices Markandey Katju and Gyan Sudha Mishra, while disposing of the Civil Appeal No.1132/2011 @ SLP (C) No.3109/2011 filed by a local builder /developer against the Punjab Government, pointed out that ‘since time immemorial there have been common lands inhering in the village communities in India variously called ‘Gram Sabha Land’, Gram Panchayat Land (in many North Indian States) (sic), which were for centuries used for common benefit of villagers of the village for various purposes, for e.g. for their cattle to drink and bathe, for storing the harvested grain, for grazing ground, as a maidan for their children to play, threshing floor, carnivals, circuses, ramlila, cart stands, water-bodies, passages, cremation ground , graveyards etc..’

The Justices observed that ‘these lands stood vested through local laws in the State and were generally treated as inalienable in order that  their status as community land is preserved. There were no doubt exceptions to the rule which permitted the Gram Sabha/Panchayat to  lease out some of this land to landless laborers and members of Scheduled Castes/ Tribes. But this was done only in exceptional cases’.

Taking strong cognizance of the Appeal filed by one Jaspal Singh and others seeking to overturn an ‘impugned judgment of the Punjab and Haryana High Court dated 21/5/2010’ which had upheld an earlier judgment of the learned Single Judge of the High Court pronounced on 10/02/2010, the Supreme Court Judges were blatantly blunt while arriving at their ruling. “What we have observed since Independence, is that in large parts of the country this common village land has been grabbed by unscrupulous persons, using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal land and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This Appeal is a glaring example of this state of affairs,” the Apex Court observed.

The honorable SC justices were of a view that ‘the appellants were ‘neither the owner nor the tenants of the land in question –in this case  recorded as a pond –situated in village Rohar Jagir, Tehsil and District Punjab. They are in fact trespassers and unauthorized occupants (sic) and they appear to have filled the village pond and made constructions thereon.’

The chain of events that led to the Supreme Court ruling began with the Gram Panchayat Rohar Jagir, filing an application under Section 7 of the Punjab Village Common Lands (Regulation) Act 1961, to evict the respondents therein, Jaspal Singh and others who had ‘unauthorizedly’ occupied the aforesaid land. In its petition, the Gram Panchayat Rohar Jagir had alleged that ‘the land in question belonged to the Gram  Panchayat, Rohar, as is clear from land revenue records.’

However, ‘the respondents (appellants herein) had forcibly occupied the said land and begun making constructions thereon illegally. An application was consequently moved before the Deputy Commissioner informing him about the illegal acts of the respondents (appellants  herein) and stating that the aforesaid land is recorded in the revenue records as Gair Mumkin Toba – a village pond. The petition stated that the villagers have been using the same since drain water of the village falls into the pond and it is used by the cattle of the village for drinking and bathing. An FIR was also filed against the respondents but to no avail. It was alleged that the latter ‘have illegally raised constructions on  the said land and lower officials of the department and Gram Panchayat had colluded with them.’

In compiling their ruling, the two-Judge Bench of the Supreme Court, observed that surprisingly ‘instead of ordering the eviction of these unauthorized occupants, the Collector Patiala held that ‘it would not be in the public interest to dispossess them, and instead had directed the Gram Panchayat, Rohar to recover from the respondents (appellants herein) the cost of the land as per the Collector’s rates.’ ‘Thus, the Collector colluded in regularizing this illegality on the ground that the respondents (appellants herein) have spent huge money on constructing houses on the said land’, opined the learned Justices.

The SC Bench noted that in a further turn of events ‘some persons filed an Appeal before the Commissioner challenging the Order of the Patiala Collector on September 13, 2005. The Appeal was allowed on December 12, 2007. The Commissioner held that it was clear that the Gram Panchayat was colluding with these respondents as it had not even opposed the Order passed by the Collector in which directions were  issued to the Gram Panchayat to transfer the property to these persons nor filed an Appeal against the Collector’s Order.’

Evidence produced before the SC Bench showed that the Commissioner while disposing of that Appeal, had held that ‘the village pond has been used for the common purpose of the villagers and cannot be allowed to be encroached upon by any private respondents, whether Jagirdars or anybody else.’ Photographs submitted before the Commissioner showed that recent attempts had been made to encroach into  the village pond by filling it up with earth and making new constructions thereon. When the matter had gone to the officials for the removal of these illegal constructions, no action was taken for reasons best known to the authorities at that time. The Commissioner was of view that ‘regularizing such kind of illegal encroachment is not in the interest of the Gram Panchayat and that Kharsra No.369 (84-4) is part of the  village pond , and the respondents (appellants herein) illegally constructed their houses at the site without any jurisdiction and without even any resolution of the Gram Panchayat.’

Against this Order of the Commissioner, a Writ Petition was filed before the honorable Single Judge of the High Court. This Petition was dismissed by the honorable Single Judge vide a Judgment dated 10/2/2010. The dismissal was further upheld by the Division Bench of the High Court. The petitioners then went in Appeal before the two-member Bench of the Country’s Apex Court.

The Honorable Justices Markandey Katju and Gyan Sadhu Mishra, while dismissing the Appeal, were caustic in their ruling. They said, “We find no merit in this Appeal. The Appellants herein were trespassers who illegally encroached on to the Gram Panchayat land using muscle power/money power and in collusion with officials and even the Gram Panchayat. We are of opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village.”

While annulling a letter from the Government of Punjab ‘permitting regularization of possession of these unauthorized occupants’, the Supreme Court Bench opined that ‘such letters are wholly illegal and without jurisdiction. Such illegalities cannot be regularized and we  cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.’

Citing a case where the Supreme Court had ordered the restoration of a park after demolition of a shopping complex constructed at a cost of over Rs.100 crores, and another where the Apex Court had held that even where the law permits compounding of unsanctioned  constructions, such compounding should only be by way of an exception, Justices Kajtu and Mishra, opined that ‘this decision will apply with even greater force in cases of encroachment of common land. Ordinarily, compounding in such cases should only be allowed where the  land has been leased to landless laborers or members of Scheduled Castes/ Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers or a dispensary for them.’

The Supreme Court Bench was scathingly critical on the issuance of government orders by many States ‘permitting allotment of Gram Sabha  land to private persons and commercial enterprises on payment of some money’. All such Government Orders are illegal and should be ignored, the Apex Court opined.

Referring to an earlier Supreme Court judgment (AIR 2001 SC 3215) where it was held that ‘land recorded as a pond must not be allowed to  be allotted to anybody for construction of a house or any allied purpose’, Justices Kajtu and Mishra hailed the wisdom of the past generation. “Our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water  was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple. These were their traditional rain water harvesting methods, which served for thousands of years”, they said.

In dismissal of the Appeal of Jaspal Singh for want of merit, the honorable Supreme Court Bench rued the fact that ‘over the last few decades, most of the ponds in our Country have been filled with earth and built upon by greedy people thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to  businessmen for fisheries in collusion with authorities/ Gram Panchayat officials and even this money collected from these so called  auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when such  malpractices must stop,’ the Court warned.

Finally in conclusion, the Supreme Court Bench directed “all State Governments in the Country to prepare schemes for eviction of illegal/ unauthorized occupants of Gram Sabha/ Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for common use of villagers of the village.”

For this purpose, the Chief Secretaries of all State Governments / Union Territories of India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for speedy eviction of such illegal occupant, after giving him a  show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession,” the Supreme Court Order has specified. A copy of this Order has been sent to all Chief Secretaries with instructions to ensure strict and prompt compliance (sic) and reports to be sent to the Apex Court from time to time.

Granted that this Supreme Court Order is specific to a pond, but its emphasis must not be lost as it seeks to protect ‘community lands’ from abuse by land-grab sharks who wield muscle and money power. Given that Goa is unique in that a vast portion of its land comprising ponds, water bodies, verdant fields and hillocks belong to the Communidades (village communities)—which have in recent years been usurped, by draconian State Acts—this ruling should come as a welcome bludgeon for sincere local social activists striving to preserve Goa’s pristine eco-structure!UTS’

http://thevois.co.in/magazine/?p=5718

© 2012 UTS' Voice

News: Tivim panchayat ‘flouts’ HC order: Illegal structures on comunidade land rise from 6 to 36, claim locals

Illegal structures on comunidade land rise from 6 to 36, claim locals

TEAM HERALD

bureau@herald-goa.com

PORVORIM: While recent attempts have been made to remove encroachments on comunidade land in Margao, a High Court order directing the Tivim panchayat to demolish structures illegally built on comunidade land is yet to be implemented since 2010.

Efforts by a group of locals to petition 12 different offices, right from the panchayat to the governor, in this regard have met with little success so far and locals have claimed that the number of encroachments have shot up from six to 36 in the past three years.

Speaking to Herald, United Citizens of Tivim President Jacinto Sequeira stated that the Tivim Panchayat is yet to act on the High Court order directing the panchayat to demolish structures illegally built on the comunidade land in the village.

“The High Court, in its order dated July 7, 2010, had directed the Tivim panchayat to demolish the illegal structures built on the comunidade land, where there is no ad interim relief operating in appeals. The panchayat has still not acted on the order,” said Sequeira.

Sequeira had filed a writ petition in the High Court alleging that “the land belonging to Tivim comunidade was illegally usurped by various encouragements for housing purpose, which is against the Provisions of Goa Land (Prohibition of Construction Act 1995).”

In the affidavit dated April 17, 2010, filed before the High Court, the Tivim Panchayat stated that it had issued demolition notices to illegal encroachers on November 7, 2009, and had directed the encroachers to demolish the illegal structures, but could not take further action as the encroachers challenged the demolition notices by preferring appeals before the Additional Director of Panchayat and obtained ex-party interim relief.

In fact, the then Deputy Collector & SDO Mapusa Johnson Fernandes had pulled up the Administrator of Comunidade, North Zone, for not taking any action against the illegal structures.

In his strongly-worded letter dated March 17, 2009 to the Administrator of Comunidade, Fernandes stated: “You are very much empowered to initiate action in terms of the Act 1995 and it appears that your office has remained a silent spectator to ongoing illegal construction which acts as a potential encouragement for others to induce into acts of carrying on with additional constructions.”

Sequeira said he had raised the issue of the illegal construction in 2009 with the authorities concerned when only six houses were built.

“Now during the last 3 years, 36 houses have come up on comunidade land but nobody is bothered to take any action against them despite order from the High Court. All the appeals of the encroachers have been disposed off, but no action has been taken by concerned authorities,” added Sequeira.

Armed with the High Court order, the United Citizens Forum petitioned the governor, chief minister, revenue minister, Tivim MLA, chief secretary, secretary of Directorate of Panchayats, Director of Panchayats, Collector (North), Block Development Officer, Mamlatdar, Tivim Panchayat and the Administrator of Comunidade (Bardez), requesting them to get the encroachments demolished.

“Our efforts to get authorities to demolish the encroachments have been in vain and the failure to implement the court order amounts to contempt of court,” stated Sequeira.

When contacted, Tivim Sarpanch Tulshidas Shinde stated that the panchayat had not acted on the High Court order, as those involved in the encroachments had appealed in the court.

When asked which court he was referring to, Shinde said: “I will have to check up with the advocate”.

http://oheraldo.in/News/Main%20Page%20News/Tivim-panchayat-lsquo-flouts-rsquo-HC-order/71556.html