Francis Estrocio vs The State of Goa and Others

S.C. Dharmadhikari, J.—Heard learned Counsel appearing for the petitioner and the learned Counsel appearing for respondent nos. 9 and 10 at great length. Perused with their assistance the petition, annexures thereto and all the affidavits on record. The petitioner has approached this Court in public interest and prays that a Writ of Mandamus or any other appropriate writ, order or direction be issued to respondent nos. 1 to 6 to take appropriate action against respondent no.7 in accordance with law. The further prayer is that direction be issued to respondent nos. 1 to 6 to decide the petitioner''s application dated 15.4.2010 and conduct an Inquiry. The next prayer is that direction be issued to respondent nos. 1 to 6 to revoke the permission of construction in respect of P. T. Sheet No. 42, Chalta No. 157 to 162 of Panaji City, Goa. Rest of the prayers are interim reliefs prayed in this Writ Petition.

The petition has been amended extensively. What we have on record is a petition styled as Public Interest Litigation impleading not only statutory Authorities but also certain private parties. There are in all thirteen respondents. The petitioner claims to be resident of State of Goa and particularly of Caranzalem. He takes part in social activities. He is regularly visiting Panaji city. He claims that he has, therefore, filed this petition in genuine public interest to bring to the notice of this Court serious violation and breaches committed while developing and constructing a building in the above mentioned land/property.

It is the case of the petitioner that the original owner is one Dr. Manohar Tamba. He is now occupying part of the premises/building. Respondent no. 7 is a company which carried out construction, whereas respondent nos. 9 and 10 are entities, who have acquired right, title and interest in the property during the course of construction activities by purchasing it on "as is where is basis." The other respondents (private parties) are stated to be occupants of the building.

It is the case of the petitioner that he became aware of the construction and permission in relation thereto in February, 2010. He made an application under Right to Information Act, 2005 and obtained information and documents. The plan for construction of building of this property was approved on 25.1.2010 for the year 2009-10. The approval by North Goa Planning and Development Authority has been relied upon by the Corporation of the City of Panaji and that approval is stated to be issued on 28.8.2009. The plan is signed by Uday A. Kamat as an owner and one Mr. Dattaprasad A. Kamat as an Engineer. The permission was granted to construct a commercial/residential building. After referring to the requisite licence and permission issued by respondent nos.1 to 6, it is stated that construction commenced. Relying upon letter which letter does not have any date and power of attorney issued by Dr. Manohar Tamba, some allegations are made even the contents thereof are commented upon. However, what is material to notice is that the petitioner emphasizes that he made an complaint with regard to this construction on 15.4.2010 to the Corporation of the City of Panaji which complaint is still pending and no decision has been taken thereon.

Mr. T. John George, learned Counsel appearing for the petitioner throughout his arguments emphasized that the petitioner would be satisfied if a direction is issued to take cognizance of and decide the above complaint. More so, a reminder-I dated 14.5.2010 was addressed but petitioner has not been communicated anything with regard to the said complaint.

Upon a query from the Court as to what material the petitioner has placed before us to demonstrate that this construction is illegal and not in accordance with the sanctioned and approved plan, the petitioner relied upon the features of the approved drawings, the corner plot abutting 20 metres road on two sides (north and west), 2 -L-shaped structures having plinth of 0.35 metre have ground floors, mezzanine as shops (commercial use), first and second floors (part) are offices (commercial use), the second, third, fourth and fifth floors are apartments and flats for residential use, total height of the building mentioned is 22.50 metres. The mezzanine floor is shown free of FAR. It is at clear height of 2.40 metres from the top of the ground floor and the height between the mezzanine floor top and the bottom to ceiling of the shop it overlooks is 2.10 metres only. The setbacks are then referred to and what has been alleged is that there are car parking spaces for 10 cars in the setback space with no proper circulation or car movement and no basement is provided for parking purpose. The next violation is that there is a "void" in the building which is open to sky as per the approved drawing but has no access from the ground floor or the floors above. Then there are violations with regard to fire safety measures and although not permitted, the balconies are put up which do not have the requisite areas and measures which are envisaged in the plan and the Goa Regulation of Land Development and Building Construction, Act, 2008 and Goa Land Development and Building Construction Regulations, 2010. In such circumstances, according to him, there is serious violation of the ODP regulations. It is in these circumstances that is prayed that this Court may issue the directions in terms of the prayers in this petition.

It is pertinent to note that originally Writ Petition had respondent no. 7 which is M/s Kamat Construction Private Limited and even memo proceeds on that basis. However, what has been then pointed out is that respondent no. 7 has been deleted as respondent to this petition. Memo of amended petition however continues to reflect that this respondent is not deleted. However, the deletion is effected in terms of order dated 22.11.2010.

Although respondent no. 7 has been deleted, there is affidavit in reply filed on behalf of said respondent. The said affidavit which is filed on 13.9.2010 and prior to deletion, points out that entire property along with old structure existing thereon belongs to Dr. Manohar Tamba. M/s Kamat Construction Private Limited entered into an Agreement dated 4.12.2004 with Dr. Manohar Tamba and the consideration for the said agreement was partly monetary and partly by way of allotment of residential flats on the second floor. The said property was purchased by M/s Kamat Construction Private Limited by a Sale Deed dated 16.9.2006. The consideration with regard to this sale deed has been mentioned and then it is stated that after obtaining necessary permissions, the original respondent no. 7 commenced construction in the property. It is stated that second floor comprises of two portions out of which, one comprises of a flat and the other an office. The flat on the second floor was to be allotted to Dr. Manohar Tamba and that was ready for occupation in the month of October, 2009. The occupancy certificate was issued by Corporation of the City of Panaji on 27.1.2010 and Dr. Manohar Tamba has occupied the premises as owner thereof. Although an objection was raised that Dr. Manohar Tamba has not been impleaded as party to this petition, what we find that later on he has been impleaded. The affidavit indicates that in the month of July 2009 M/s Dinar Tarkar Resources (India) Private Limited approached M/s Kamat Construction Private Limited for purchase of said building on as is where is basis leaving out the premises allotted to Dr. Manohar Tamba and the office on second floor which was agreed to be allotted to Dena Bank and pursuant to the arrangement between the two parties the premises and the building under construction were acquired on as is where is basis by this private limited company and subsequently they have been sold. This was informed to all concerned Authorities including Corporation of the City of Panaji, and North Goa Planning and Development Authority. Therefore, it is evident that M/s Kamat Construction Private Limited divested itself of its right, title and interest in the property by virtue of sale deed executed in favour of M/s Dinar Tarcar Resources (India) Private Limited.

After referring to the building permissions what has been alleged is that there is gross delay in filing this Writ Petition.

It appears from the record that after perusal of the affidavit of original respondent no. 7, this Court has passed an order on 13.9.2010 observing that prima facie there is no material on which allegations in the petition can be substantiated by the petitioner nor there is an application for delay in approaching this Court. Therefore, Court passed conditional order directing the petitioner to deposit Rs. 50,000/-towards the possible costs that may be awarded and file affidavit explaining delay and laches.

Although the complaint made by Shri Sonak, learned Advocate appearing for contesting respondent is that there is no explanation much less a reasonable and satisfactory one for this gross delay and laches, additionally the petition is nothing but one more instance of extortion of money by the petitioner from respondent nos. 9 and 10. He submits that in relation to another construction of these respondents an attempt to extort money was made by the petitioner and there are documents evidencing such an act of the petitioner.

On the other hand, learned Advocate appearing for the petitioner denies this and submits that this is a case where the petitioner has approached this Court in public interest alleging gross illegalities and irregularities in the construction in the municipal limit of Panaji City.

The conduct of the petitioner in relation to some other constructions has no relevance and therefore should not be considered by this Court in any manner while dealing with this petition. Secondly, he submits that the contesting respondent nos. 9 and 10 may not be aware but there is an affidavit explaining the delay and laches and which explanation is on record.

Mr. Sonak, therefore, submits that on both counts, namely on the ground of conduct of the petitioner and delay and laches, this Writ Petition deserves to be dismissed. The Petition deserves to be dismissed because what has been highlighted by the petitioner are illegalities in the construction but they are not being found at site by the statutory Authorities. All that statutory Authority did was to inspect the building and after finding that certain fire safety measures required modification and adequate arrangements to meet any emergency. That the owner was called upon to comply with the requisitions contained in the letter of the Fire Services Department. These compliances have been made and now there is certificate issued by that Department after inspection that all fire measures are in place. There is no mezzanine floor as alleged. Even, there is no question of any void being left without any access and what has been explained in fact is that the enclosure which has been referred to as void is open on all sides and does not affect the sunlight entering the building and the ventilation. In fact it is water harvesting platform, temporary in nature, used to collect rain water in the monsoon season and recharge the groundwater table. It also serves to protect the void from the onslaught of rains. Such enclosures are permitted and reference is made to the regulation in that behalf and it is pointed out that void is accessible from the building by a door which is 1.5 metres wide. Even the staircase next to the void is a fire escape/emergency staircase.

There is some aesthetic feature on the terrace which also does not violate any of the legal provisions or the construction licence or permission. Therefore, there are no breaches/violations and much less serious one as noted by the petitioner and highlighted before us.

With the above material we have heard learned Advocate appearing for the parties. We have also perused the written notes handed over by the petitioner''s Advocate. Upon perusal of the entire material, we are of the opinion that this petition deserves to be dismissed.

The petitioner proclaims to have raised a cause in public interest. Apart from the fact that he is not residing in the Corporation of the City of Panaji, what we find is that he relies upon two reports of private surveyors stated to be expert in the field who seek to controvert the opinion of other private surveyor. This is not a case where the petitioner possesses any expertise or knowledge with regard to planning and construction law or construction at site in particular. He has approached the Court in Writ jurisdiction as an ordinary resident of State of Goa having noticed a building construction and seeking to bring to the notice of the Court alleged irregularities and illegalities therein, because of in action of the statutory Authority.

However, it does not appear that this is a completely innocent action. The petitioner is stated to be known to the respondent nos. 9 and 10. In their affidavit, they have pointed out as to how the petitioner has a private interest. They stated that the petition has been filed for the purpose of extortion. The petitioner has from the year 2002 to 2007 by issuing baseless threats allegedly recovered amounts from a construction firm namely Landscape Developers of which respondent no.10 is Managing director namely, respondent no. 9, Shri Dinar Tarkar is a partner. Recently petitioner had targeted another developer from Miramar. Petitioner claims that he has certain rights in the property, adjacent to the property where the Landscape Developers were putting up a project. The said Landscape developers entered into an agreement and the petitioner was paid a yearly sum of Rs. 10,000/-. That sum was paid from 2000 to 2006 and thereafter he raised further claim. Reliance is placed upon the details of the cheques and the payment vouchers which are at annexure "A" to the affidavit in reply of respondent no. 9. Thereafter, there is reference made to certain further threats and that acts are attributed to the petitioner from 2008 to 2010. Thereafter, it is alleged that this Writ Petition is filed. Since there are serious allegations made, the petitioner was given an opportunity by this Court to file an affidavit in rejoinder which he has filed in which he states that payment voucher dated 22.1.2007 which is reproduced is not an extortion of money but compensation for access. Agreement also is referred to and it is stated that the same is between respondent no. 9 and the petitioner dated 15.9.2000 wherein it was mutually agreed that petitioner would receive a sum of Rs. 10,000/-till all claims are settled. This is a mutual agreement and cannot be treated as an act of extortion. Even with regard to arrangement with the petitioner and the Landscape Developers there is reference made to a voucher dated 22/1/2007 and it is stated that this is a mutual agreement for compensation to the claimant, who has become exclusive owner. There is no criminal case or civil suit filed against the petitioner for extortion of money in police station and, therefore, there is no substance in this allegation. We do not wish to make any comment on the allegation that has been levelled against the petitioner but what we find is that the petitioner is aware of the arrangements under which properties are developed, buildings are constructed for commercial and residential purposes. He is not completely ignorant. As a person claiming rights in immovable properties including lands he knows that when construction activities are undertaken in a property/building are carried out by some entities with a prior arrangement and agreement with original owner. Therefore, at the first instance the petitioner ought to have known in this case that the property was developed by respondent nos. 9 and 10 although he falsely showed ignorance by not disclosing Deeds and documents, some of which are stated to be registered. What appears to us is that the petitioner was sufficiently aware of the fact that this project is of respondent nos. 9 and 10. Yet, he proceeded to implead respondent no. 7 M/s Kamat Construction Private Limited on the basis that it is developing this property. Thereafter when M/s Kamat Construction Private Limited clarifies the position and brings all arrangements between it and respondent nos. 9 and 10 on record, then, the petitioner amends the Writ Petition. In our view, the petitioner who comes before the Court and espouses a public cause and a public interest ought to be such, who genuinely and bonafidely alleges that the construction activities are illegal and unauthorised.

He must disclose all efforts made to obtain requisite information in relation to the property under development and buildings under construction. A petitioner must be fair to the Court. If he seeks compete transparency in acts and Deeds of Public Officials, equally, he must establish his honesty and bonafides by specifically stating that despite seeking information from all statutory bodies, he is unable to produce details regarding the construction and development on a particular property. Today, enactments such as Right to Information Act, 2005 are in place. Every statutory Authority and State Body including Public Officials have to abide by it. In the age of computerisation when all information is available on Web-site of even a Registration office, then, obtaining information with regard to title of parties in a land/property, copies of the relevant Deeds and documents, inspecting them is not a impossible task. Gone are the days of total secrecy and complete lack of openness in public affairs or acts involving public element. Therefore, it is not too much if a Court of law expects a litigant to do a complete and through study, some research and disclose proper details to it. This reasonable expectation is not fulfilled in this case and we say with some pain and anguish, deliberately by the petitioner.

It is not as if the petitioner like the present one who approaches this Court with incomplete material and later on tries to plant and supplement it can be said to be espousing a public cause by fling a PIL. It is in these circumstances that this Court imposed a condition that petitioner should deposit a sum of Rs. 50,000/-in this Court prior to taking up his cause. This clearly shows that the Court was not satisfied with the cause brought before it and the conduct of the petitioner. We have observed all this only because we do not wish to return the sum of Rs. 50,000/-to the petitioner even though we have dismissed this Writ Petition. But this sum shall be handed over to Goa State Legal Services Authorities by the Registry.

In so far as the delay and laches are concerned, although the petitioner has approached this Court after construction at site is complete, yet, we do not wish to dismiss the petition only on the ground of delay and laches. This does not mean that we are satisfied with the explanation for the same. Since it is a high rise construction in a prime locality in the city of Panaji, that we have with the assistance of the advocates, perused the complaint made by the petitioner in relation to the construction and response thereto by the statutory Authorities as well as by private parties.

Even on merits, we find that the petitioner has been unable to point out serious breaches and violations of the building permission and the construction licence or the relevant planning and regulations Laws and Regulations in the field.

The Corporation of the City of Panaji, has filed an affidavit in reply to this Writ Petition and it has in the said affidavit pointed out that the construction has been permitted after the corporation was satisfied that the Authority can grant licence for construction and the building permission. That was on the basis and being satisfied that the property rights have been transferred by earlier owner in favour of M/s Kamat Construction Private Limited and subsequently by the said M/s Kamat Construction Private Limited in favour of respondent nos. 9 and 10.

The affidavit filed has been perused by us. The Commissioner in the said affidavit has stated that the petition is misconceived in as much as firstly there are no constructions of any mezzanine floor. The void mentioned in paragraph 7(ii) has been covered with temporary aluminium sheet. There is sufficient light and ventilation to the habitable rooms and such temporary covering of the continuing void, would not increase the coverage of FAR. As far as the allegation in paragraph 7(iv) is concerned there appears to be a drafting mistake in the main plan, since the section drawing correctly shows the same. The staircase mentioned in paragraph 7(v) takes its ventilation from the opening in the wall next to the void, and other opening is closed as it is a dead wall. The building has been granted NOC by the Directorate of Fire and Emergency Services. Deponent of this affidavit has stated with regard to paragraph 7(vi) that there is a mistake in the drawing in the front elevation. The section plan otherwise shows the correct position. Even with regard to balconies, they are enclosed with temporary aluminium shutters, which have been erected after occupancy. The car parking space is also stated to be adequate. The plans were approved by Planning and Development Authority and their development approval is overriding in view of Section 134 of the Goa Town and Country Planning Act. The Corporation grants licence for construction consequent to the PDA development permissions. What this affidavit indicates is that construction is within the limits of FAR and even the parking spaces have been approved by PDA. In addition, what we find is that with regard to fire safety measures, there is an inspection which has been carried out by the Department and after the shortcomings were noticed they were pointed out on 6.4.2011. Respondent no.9 has made certain changes and corrections. The inspection report after such changes and correction is dated 24.6.2011 and it indicates that the observations and shortcomings pointed out in the letter dated 6.4.2011 were found to be complied with. The other fixed fire protection equipment in the building namely fire pump, fire hydrant, landing valves, fire brigade, inlet connection, and other measures and equipments which have been installed are found to be satisfactory and in working/operational condition.

We have no reason to doubt this statement made on the affidavit by not only the expert in the field but senior officer in charge of approving and permitting construction and grant of permission and licence.

Equally, their site inspection must be given due weightage. It is not the case of the petitioner that each of this statutory body and Authority has colluded with the owner and therefore their actions are totally vitiated. What the petitioner alleges in response to all this is that original owner Mr. Manohar Tamba has filed an affidavit agreeing with the allegations made by the petitioner and secondly there are photographs which would show that parking and other arrangements are inadequate and persons/occupants are parking their vehicles on road.

On the basis of certain photographs and vague allegations allegedly supported by report of some surveyor or an expert, we cannot enter into a disputed field and the questions involving factual matters. Once the site has been inspected and even during the course of inspection Authorities have issued directions to take corrective steps and when they are satisfied that such corrective steps are taken, we cannot proceed on the basis of the version of the petitioner that this construction needs to be either pulled down as prayed or all the licences are to be cancelled. This is not a case where the petitioner can claim the relief of cancellation of building permission and licence only on the basis of some breaches or violations alleged by him. Once allegations with regard to mezzanine floors, staircase were found to be false and affidavits of both statutory Authority and private parties are indicating correct position, we do not find any merit in the grievance of the petitioner. We cannot issue any direction to the statutory Authorities either to revoke or recall their permission or licence. As a result of above discussion, this Writ Petition fails and it is dismissed. While dismissing this writ petition which is styled as PIL and finding that the petitioner cannot be said to be completely innocent resident coming with a genuine cause, we direct that the Registry hereafter shall not entertain any litigation instituted by this petitioner as PIL without prior permission or orders from this Court.