Village Group of Goa and Another vs State of Goa and Others

Gavai B.R., J.—The petitioners, who claim to have filed the present petition in a larger public interest, challenge the development permission dated 9.9.2010 and subsequent development permission dated 22.6.2012 and the construction licence dated 29.6.2012 granted by the respondent No. 2 in favour of respondent No. 5. The facts in brief giving rise to the present petition are as under:

It is the contention of the petitioners that initially a structure of old two storeyed building known as "Zuari Hotel" which consisted of godowns, etc., was surrounded by an open space which was covered by the projection of the first floor of the said building. It is the contention of the petitioners that the citizens at large are entitled to right of way over the said open space which was kept by the said margins in the said building. It is the contention of the petitioners that the respondent No. 5 purchased the said plot and applied to the Addl. Collector for conversion of the land for using the same for commercial purpose. On 29.6.2012, the respondent No. 2, Additional Collector, granted permission for change of user u/s 44 of the Town and Country Planning Act. Subsequently, the respondent No. 5 also applied to the respondent No. 2 for grant of development permission. The respondent No. 2 on 22.9.2010 granted construction licence and the construction came to be commenced. It is the contention of the petitioners that while constructing, the respondent No. 5 had encroached on the public road by G.I. Fencing. It is further contended that the respondent No. 5 was directed to remove the said encroachment. It is the contention of the petitioners that the construction so made by the respondent No. 5 was in breach of the licence given in his favour. It is the contention of the petitioners that though the authorities of respondent No. 2 noticed breach of the terms and conditions on which licence was granted did not take necessary steps and permitted the construction to be conducted in an illegal manner. It is the contention of the petitioners that the construction which is made now, is in such a manner that the footpath, which was used by the citizens, cannot be used in proper manner. It is the contention of the petitioners that on account of the height of the footpath which has been substantially increased as compared with the old footpath, old citizens would not be in a position to utilise the same. It is the contention of the petitioners that the construction, which has been made having the vertical projection in such a manner that the right of way available to the citizens, is taken away. In this background, the petitioners have approached this Court seeking a writ of mandamus directing the authorities to modify the terms and conditions of the licence so as to bring the projection on the ground surface level.

Heard Shri Ryan Menezes, learned Counsel appearing on behalf of the petitioners, Shri Nadkarni, learned Advocate General appearing for the respondent Nos. 1, 2 and 4, Shri Padiyar, learned Counsel appearing on behalf of respondent No. 3 and Shri Sardessai, learned Counsel appearing on behalf of respondent Nos. 5 and 6.

The following propositions have been pressed into service by Shri Menezes, learned Counsel appearing for the petitioners:

(i) The construction which was carried out by the respondent No. 5 has been carried out in contravention of the plan.

(ii) The violations which were committed by the respondent No. 5 were beyond what is permitted by the regulations.

(iii) Serious deviations, which called for an action for revocation of licence under the Act for revocation of plan, were overlooked by the authorities and the permission was granted.

(iv) The projection which takes away the right to use a footpath which was recognised as right of way as required under Clause 113 of Regulation No. 2 has been taken away by the impugned construction.

(v) The basement constructed can move beyond the building line but cannot come above the surface in the set back area.

We have heard elaborately Shri Menezes, learned Counsel appearing for the petitioners. In support of the propositions, Shri Menezes, heavily relied on the judgment of the Apex Court reported in Esha Ekta Apartments Co-operative Housing Society Ltd. and Others Vs. Municipal Corporation of Mumbai and Others, .

Per contra, the learned Advocate General appearing on behalf of the respondent Nos. 1, 2 and 4, Shri Padiyar, learned Counsel appearing on behalf of respondent No. 3 and Shri Sardessai, learned Counsel appearing on behalf of respondent Nos. 5 and 6, submitted that the construction which is carried out by the respondent No. 5 has been carried out in accordance with the Goa Land Development and Building Construction Regulations, 2010, (hereinafter referred to as ''2010 Regulations''), which are framed under the provisions of The Goa (Regulation of Land Development and Building Construction) Act, 2008, (hereinafter referred to as the said ''Act''). It is submitted that the entire construction is fully permissible in accordance with the regulations which are framed and the contentions raised on behalf of the petitioners are without substance.

From the tenor of the affidavit-in-reply filed on behalf of the respondents, it would reveal that credentials of the petitioners have been questioned. In the reply it is stated that the petitioner No. 2 is not a resident of Vasco Da Gama but is a resident of some other Village which is situated at about 10 kilometers from the City of Vasco Da Gama. It is contended that none of the citizens who are residents of Vasco Da Gama have approached this Court. It is further contended that though the construction was complete as way back as in the year 2011, the petitioners have approached this Court in the month of December, 2012 i.e. after the completion of the construction and after issuance of completion certificate by the Competent Authority.

No doubt, that the petition suffers from various laches. From the nothings which are placed on record by the petitioners themselves, it could be clear that the part of the construction regarding which the petitioners have serious objections, was completed in any case prior to 23.3.2011. It would be relevant to refer to the following noting from page 131 of the paper book of the petition:

As per the approved plans, plinth height of the building is + 0.45 mts from road level on site it is more than 1.00 mts from road level.

In view of the work completed, alignment certificate cannot be given as basement has been completed. Secondly, we may inform the builder to submit revised plan from M.P.D.A. due to plinth level difference before the renewal of Construction License. Submitted for needful.

The perusal of the above noting would reveal that the Competent Authority, on inspection, found that though in the approval plans the plinth height of the building was + 0.45 metres from the road level, on site it was more than 1.00 meters. The authority has also observed that in view of the work completed, alignment certificate could not be given as basement had been completed and that the builder had to submit the revised plan from M.P.D.A. due to plinth level difference before the renewal of Construction License. It can thus be clearly seen that even according to the authorities, the vertical projection of the plinth, to which petitioners are seriously objecting, was completed prior to 23.3.2011. No explanation of whatsoever nature has been given as to why the petitioners have not approached this Court from March 2011 to December, 2012. If the petitioners were so vigilant, they could have knocked the doors of the Court at an earliest opportunity. Though we could have thrown away the petition on laches only but in view of the legal contentions raised by Shri Menezes, learned Counsel appearing for the petitioner, we propose to dispose of the petition on merits rather than non-suiting him on hyper technical grounds.

To appreciate rival contentions, it would be necessary to refer to certain provisions of the said Regulations of 2010. The basement has been defined under the said Regulations in Regulation No. 2(17). It would also be relevant to note that prior to the Regulations coming into force, the building premises were governed by the Planning and Development Authority (Development Plan) Regulations 2000. Clause 9 of Regulations (2) of said Regulations 2000, defines thus :

(9) "Basement" or "Cellar" means the lowest storey of a building below ground level of the plot and projecting not more than 1.5 m. above the surrounding ground level.

Clause 17 of Regulation No. 2 of 2010 Regulations reads thus:

(17) "Basement" or "Cellar" means the lower storey of a building below ground level of the plot, having a floor height of not more than 3.50 metres and projection not more than 1.50 metres above the surrounding ground level. In case, basement extends beyond building footprint a minimum set back of 1.00 meter from the plot boundary shall be maintained for area other than those within the municipal limits.

It will also be relevant to refer to the definition of road or right of way which is defined under Clause 113 of Rule 2 of the said Regulations:

2(113) "Road or Right of way" (R/W), means the right of way of the road or street inclusive of the carriageway, shoulder, drain, footpaths and shall be measured at right angles to the course of direction of such road or street.

It would also be relevant to refer to set back or set back distance which is defined under Clause 2(122) of the said Regulations:

2(122) "Setback" or "Set back distance" means the horizontal distance measured from the edge of the plot to the line of the building at each floor level as the case may be.

Clause 3.8 of the said Regulations deals with deviation during development and revocation of permission and it would be relevant to refer to the same which reads thus:

3.8. Deviation during development and revocation of permission.-(a) The holder of any development permission issued under these Regulations shall follow the approved plans and conditions laid down.

(b) In case deviation occurs which, in the opinion of the owner and his Architect/Engineer/Structural Engineer/Town Planner/Landscape Architect/Urban Designer, is within the framework of these Regulations, the holder may carry out such deviation and should apply and obtain revised approval, clearly showing such deviation in the plans, as soon as possible or at least at the time of applying for Occupancy Certificate. However, this will not apply to Conservation Zone, where no deviation shall be carried without prior approval of the Conservation Committee.

(c) The Competent Authority may, subject to the provisions of the respective Act, revoke any permission given under these Regulations, if it is found that subsequent deviations that have taken place during development violate any of these Regulations. The Competent Authority may also proceed against the holder of the permissions in the manner laid down in the respective Act.

Regulations 4.2 deals with the means of access to the building within the plot. It would be relevant to refer to sub-clauses (a), (b) and (f) of the said 4.2 Regulations:

4.2 Means of access to the building within the plot-

(a) Every person who erects a building shall provide a means of access to such building a clear way of not less than 3.00 mts.

(b) Such pathway shall be kept open to sky and no projection or overhang shall be permitted over it except a canopy or a balcony or a weather board or a chajja erected at least 2.50 metres above the ground level.

...

(f) In case of level differences, the pathway could be in form of steps or ramp from the road level to the entrances of the building. In case of steps, the tread of the step shall not be less than 30 cms. and riser shall not be more than 20 cms. In case of ramp the gradient shall be less than 1:6 for driveway and 1:12 for pathway. In case of steps, adequate parking shall be provided nearby.

By now, it is a settled position of law that various provisions of a Statute have to be read in harmony with each other and cannot be read in isolation. It is equally settled that while considering one provision of a Statute, the other provision cannot be ignored. In fact, an effort has to be made to give meaning to each and every part of the legislature. The Apex Court in the judgment reported in The J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Others, , has observed that in the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.

In the light of the law as laid down by the Apex Court and the aforesaid Regulations which are a pieces of subordinate legislations, we will deal with the contentions as raised by Shri Menezes. The basic contention of Shri Menezes, learned Counsel appearing for the petitioners, is that the construction was proceeded in contravention of the plans and that the violations that were committed by respondent No. 5 were beyond what the Regulations permitted and the same required an action for revocation of the licence. The other contention which requires consideration is that the open space which has to be permitted to be used as a right of way has to be on the surface and cannot be projected vertically. The other contention is that though the basement may move beyond the building line, it cannot come above the surface.

In so far as the first contention that the deviations were not permissible is concerned, we find that the said submission is without substance. A perusal of Clause 17 of Regulation No. 2 of the 2010 Regulations and Clause 9 of the 2000 Regulations, would reveal that a basement can be permitted below the ground level of the plot, having a floor height of not more than 3.50 metres and projection not more than 1.50 metres above the surrounding ground level. It can be clearly seen that Clause 17 of the Regulations thus provides a projection of a basement which can be up to 1.50 metres above the surrounding ground level. In so far as basement extending beyond building line is concerned, Shri Menezes, learned Counsel, himself has not disputed much about the horizontal projection but has objected to projection which is vertical. However, in view of Clause 17 of Regulation No. 2, we are unable to accept the contention of Shri Menezes. At the cost of repetition, it is to be noted that Clause 17 of Regulation No. 2 of 2010 Regulations itself permits vertical projection upto a maximum limit of 1.50 meters.

It is further to be noted that Clause 4.2 of the Regulations specifically deals with access to the building within the plot. Clause (a) thereof provides that a person who erects a building shall provide by means of access to such building a clear way of not less than 3.00 meters. The only grievance of the petitioners is that the same is not on a ground surface level. Clause (b) of Regulation 4.2 is also relevant which requires that such pathway is required to be kept open and no projection or overhang shall be permitted over it except a canopy or a balcony or a weather board or a chajja erected atleast 2.50 metres above the ground level. It is nobody''s case that the said Regulations have been deviated. Clause (f) of the Regulation 4.2 would be relevant for the purpose of deciding the present petition. It is specifically provided that in case of level differences, the pathway could be in form of steps or ramp from the road level to the entrances of the building. It further provides that in case of steps, the tread of the step shall not be less than 30 cms. and riser shall not be more than 20 cms. and in case of ramp the gradient shall be less than 1:6 for driveway and 1:12 for pathway. It further provides that in case of steps, adequate parking shall be provided nearby. It can thus be clearly seen that the Regulations itself provide that in case of steps, the tread of the steps should not be less than 30 cms. and riser shall not be more than 20 cms. As can be seen from the plans sanctioned, the basement has been constructed for the parking purpose and, as such, the care for parking has already been taken. It is further to be noted that it is nobody''s case that the treat of the steps is either less than 30 cms. or riser is more than 20 cms. As such, the requirement of Clause (f) of Regulations 4.2 is duly taken case of.

In so far as the contention of Shri Menezes, learned Counsel, regarding the set back to be also provided for basement since the basement is also to be construed as building is concerned, Clause 122 of Regulations (2) of the Regulations cannot be read in isolation. As already discussed herein above, various provisions of legislation have to be read in harmony to each other. Harmonious reading of Clause 17 together with Clause 122 of the Regulations (2) would clearly show that though a set back of required distance is to be provided for the ground floor and above, in so far as basement is concerned, as per the old Regulations, the basement can extend beyond the building footprint up to the plot level and as per the present rules, the basement can extend beyond building footprint with a minimum set back of one meter from the plot boundary. However, it can clearly be seen that wherein a basement is constructed, a vertical projection of about 1.50 metres above the surrounding ground level is permitted. In that view of the matter, the contention of Shri Menezes, learned Counsel appearing for the petitioners, in that regard, is to be rejected. It is nobody''s contention that the projection is above 1.50 metres and, as such, is in contravention of Clause 17 of Regulation No. 2. If the contention of Shri Menezes is to be accepted to render Clause 17 of Regulations No. 2 and Clause (f) of Regulations 4.2 as redundant, such interpretation cannot be permissible in law.

In so far as the contention of Shri Menezes, learned Counsel, regarding the authorities not being in a position to regularise the construction is concerned, the necessary provision can be found in Clause 3.8 of the Regulations itself. Clause (b) of Regulation 3.8 would clearly show that in case the deviation occurs and which, in the opinion of the owner and his Architect/Engineer/Structural Engineer/Town Planner etc., is within the framework of these Regulations, the holder may carry out such deviation and should apply and obtain revised approval clearly showing such deviation in the plans as soon as possible or atleast at the time of applying for Occupancy Certificate. It can thus clearly be seen that if the deviation is permissible as per the other Regulations, the owner is permitted to carry out such deviations and is required to apply showing such deviations at any time but, however, prior to applying for Occupancy Certificate. In the present case, it is nobody''s case that the application made by the petitioners for regularisation of the plinth height from 0.45 metres upwards has not been made prior to the grant of Occupancy Certificate. It is also clear that the vertical projection of the basement area is permissible upto a maximum of 1.50 metres and, therefore, the authorities were very much justified in permitting the said deviations since it was permissible in accordance with the Regulations. In so far as the deviations which are not permissible under the Regulations is concerned, the same is also taken care of by Clause (c) of Regulations 3.8. The said clause provides that if the deviation is not permissible in accordance with the other Regulations, the Competent Authority may proceed against the holder of the permission in the manner laid down in the respective Act. In that view of the matter, the contention of Shri Menezes, learned Counsel appearing for the petitioners, that the deviation was not permissible in law and the authorities ought to have taken steps against the owner for revocation of licence, is not sustainable in view of regulation 3.8 of the said Regulations.

In so far as the judgment of the Apex Court in the case of Esha Ekta Apartments Co-operating Housing Society Ltd., & ors. Vs. Municipal Corporation of Mumbai & ors. (supra), on which Shri Menezes, learned Counsel has heavily relied upon is concerned, the same is not applicable to the facts of the present case as the said case is concerning regularisation of illegal construction. The said case is concerned about regularisation of the construction which was contrary to the development control regulations. The same is not the case here. As already discussed herein above, the deviations which were made by the respondent No. 5 were permissible in view of various regulations discussed herein above and Clause 3.8 of the Regulations permitted him to make the deviations with rider that he should apply for revised approval of the same as soon as possible but, in any case, prior to grant of Occupancy Certificate. Admittedly, the same has been done in the present case. In that view of the matter, we find that the petition deserves no merits and is dismissed with costs which are quantified at Rs. 10,000/-. Out of the amount of Rs. 1,00,000/-, which is deposited in the registry, an amount of Rs. 10,000/- be paid to the Goa State Legal Services Authorities. The petitioners would be permitted to withdraw the remaining amount of Rs. 90,000/- with interest accrued thereon.