Shri Roque Philip Fernandes and Others vs South Goa Planning and Development Authority and Others

Heard Mr. Sonak, learned Counsel appearing for the petitioners and the learned Counsel appearing on behalf of the South Goa Planning and Development Authority, Margao Municipal Council and Mr. S.G. Dessai, learned Senior Counsel appearing for respondents nos.4 & 5. dated 5/08/2010, annexure Q.

The petitioners nos.1 & 2 are the owners of a immovable property bearing Chalta no. 31, P.T. Sheet No. 65 admeasuring 586 square metres in the City Survey of Margao Municipal Council. A building has been constructed thereon which consists of several apartments and the petitioner no. 3, Society is consisting of the owners of respective apartments.

Respondents nos.4 & 5 purchased an immovable property bearing Chalta no.31 of P.T. Sheet No.65 of City Survey of Margao.

It is the case of the petitioners that before the sale deed was executed, respondents nos.4 & 5 obtained NOC dated 6/08/2008 from respondent no.1, Authority. A condition has been placed in the said NOC that no development/construction shall be allowed for the plot unless plot is made by regular motor able access.

The petitioners state that the respondents nos.4 & 5 applied for development/construction of the property purchased by them, particularly, of a bungalow on an area admeasuring of 330.65 square metres. In the plan submitted, it was falsely represented that there is a 3 metres access through the plot belonging to the petitioners. It is stated that without any verification or inspection of the property a permission was granted u/s 44 of the Goa Town and Country Planning Act, 1974. This permission is dated 15/10/2008.

The petitioners obtained the requisite information under the Right to Information Act, 2005 and became aware of this false representation allegedly made and that is how they approached the respondent no.1. They pointed out that there is no such right conferred nor is there any compliance with the condition imposed of having motor able access. On the basis of this complaint, the construction permission was revoked by respondent no.1.

It is stated that respondents nos.4 & 5 made another application dated 11/02/2009 showing access on the fresh plans and sought permission to develop and construct on the property acquired by them. That application was rejected on 13/04/2009. Aggrieved by the earlier order and the subsequent order of rejection of their permission, an Appeal came to be preferred before the Appellate Authority and the Town and Country Planning Board, State of Goa, speaking through the Chief Town Planner passed an order on this appeal preferred u/s 44 of the Town and Country Planning Act, 1974. The order reads thus:

The Board, after hearing both the parties, observed that there was an existing structure, which was purchased by the appellant along with the plot as stated by appellant. This indicates that the original owner of that structure/house was deriving access to that structure/house. Hence it could be established that there existed traditional access to the said property. Accordingly the Board decided to remand the matter back to South Goa, PDA for reconsideration.

Construing this order as a command to grant the development permission, the respondent no.1 by the impugned order at annexure Q granted development permission. The development permission now granted is in the following terms :

29) Traditional access shown in the site plan shall be verified by M.M.C. before Issue of construction licence.

30) This development permission has been issued based on the Town & Country Planning board decision vide letter dated 19/10/09.

Aggrieved by this order, the present petition is filed by the adjoining land owners namely the petitioners.

It is stated that acting on the impugned order the Margao Municipal Council has issued the construction licences.

We have heard Mr. Sonak, the learned Counsel appearing for the petitioners and learned Counsel appearing for respondent no.1 and Mr. Dessai, the learned Senior Counsel appearing for respondents nos.4 & 5, at some length. With their assistance, we have perused the impugned order and the order of the Goa Town and Country Planning Board. We find from the order of the appellate Authority that it directs reconsideration of the matter. The Board has decided to remand the matter back to the South Goa Planning and Development Authority for reconsideration. It may be that certain observations have been made, but ultimately acting in terms of the said order, the South Goa Planning and Development Authority also has not understood it as any command or direction or else there was no occasion for it to impose conditions nos.29 & 30 in addition to the printed conditions in the impugned order. However, the Authority was obliged to find out whether the access shown in the site plan by respondents nos.4 & 5 is a traditional access as claimed and within the meaning of the said term as defined in the planning regulations. It does not appear that any application of mind has gone in, in the exercise taken by the Authority. The Authority was aware that the matter is contested and there is a dispute as to whether the access shown in the site plan is a traditional access or not. Further, the respondent no.1 in the initial stages imposed the condition and in addition to its printed format directed that the access shown be verified by the Council before issuing the licence. In 2008, it was clearly directed that no development/construction u/s 44 shall be allowed in the plot unless it is made by regular motor able access.

We are of the opinion that there has been no change in the situation from the year 2008, merely because the matter is remitted or remanded for reconsideration by the appellate Authority. It is not as if there was any command or direction to grant the NOC. The Authority could have still considered the matter afresh and if it was of the opinion thereafter that conditional NOC is required to be granted, it could still have maintained that position. The appellate order does not state that NOC be granted straightway or that no conditions can be imposed. All that the appellate Authority brings to the notice of the respondent no.1 is that there was an existing structure which was purchased by respondents nos.4 & 5 to this petition and that the original owner was deriving access to that structure. The statement made that "it could be established that it can be used as a traditional access to the said property" is a mere observation and no conclusive finding has been rendered. Therefore, when the Authority decides to remand the matter all that it directs is that the respondent no.1 should apply its mind afresh taking into account the case of respondents nos.4 & 5. There is no mandate to grant NOC in this order. In such circumstances and when it is for the respondent no.1 to satisfy itself as to whether the NOC should be granted conditionally or otherwise, it was necessary to come to a definite condition as to whether there exists a traditional access as urged by the respondents nos.4 & 5 or that there is substance in the petitioners'' grievance that it is their access which will be utilised and which is termed as a motor able access. To avoid a situation of conflict and bearing in mind larger public interest that the Planning Authority must decide such matters. They cannot by their acts drive parties to come to Court and indulge in litigation. We find that approach of respondent no.1 is not in accordance with law and it was their plain duty to come to a conclusion in terms of the applicable rules and regulations as to whether the conditions which are stipulated by it for grant of NOC have been satisfied or not. Since there are two parties to the dispute, it ought to have taken into account the objections raised by the petitioners as well.

Since this course has not been followed and the order of the appellate Authority has been misconstrued and misapplied by respondent no.1, we have no alternative but to quash and set aside the NOC dated 5/08/2010 to the extent it deletes the condition imposed vide earlier order dated 6/08/2008 and all consequential permissions and direct respondent no.1 to decide the case afresh. When taking a fresh decision on the application of respondents nos.4 & 5 and whether to grant NOC to respondents nos.4 & 5 unconditionally or not, the Authority (respondent no.1) must consider the objections that have been raised by the petitioners and, particularly, highlighted in this petition. In other words, opportunity of hearing should be given to both petitioners and respondents nos.4 & 5. In the peculiar facts of this case, this direction will have to be issued or else there cannot be any solution to the problem faced by both sides. The matter will lie in this Court unnecessarily and over an issue which has to be decided by the Planning Authority in terms of the applicable planning laws and rules.

In such circumstances, we dispose of this petition with a direction to respondent no.1 to decide the application for grant of NOC made by respondents nos.4 & 5 afresh and in accordance with law, but after giving a personal hearing to both petitioners and respondents nos.4 & 5. The respondent no.1 must take a decision in pursuance of this direction within a period of four weeks from today and uninfluenced by the order of the appellate Authority which has been reproduced above or any observations therein, so also grant of any prior permissions or rejection thereof. The respondent no.1 must pass a reasoned order and communicate the same to the parties.

Since our order only deals with the Issue of Access to the immovable property, it is submitted that the construction can go on and should not be stopped. To avoid further conflicts and complications, it is directed that for a period of four weeks from today, the ad interim order passed in this Writ Petition shall remain in force after which period it shall automatically come to an end. Needless to state that we have not expressed any opinion on the rival contentions and each one of them are kept open. The Authority will examine the case of the party as to whether there was any traditional access to the property of respondents nos.4 & 5 and whether it has been established and identified by any documents on record, while deciding the application made by them. Petition disposed off in the above terms. No costs.