Gurudas G. Pai v. State of Goa, through the Chief Secretary, Secretariat panaji, Goa
2004-10-26
B.H.MARLAPALLE, N.A.BRITTO
body2004
DigiLaw.ai
JUDGMENT Marlapalle, J. The petitioner, party in person, had initially addressed a letter elated 7th July, 2004 to this Court and the same was directed to be registered as a PIL petition as per order dated 12.7.2004. The petitioner had contended that a high rise building "Menino Regency" was constructed in gross violation of the Planning and Development Authority (Development Plan) Regulation 2000, as well as Part IV of the fire protection provisions in the National Building Code of India. It was alleged that the Statutory Authorities, namely, the Planning and Development Authority, at Panaji. as well as the Corporation of the City of Panaji, and the Director of Fire and Emergency Services, Goa had failed in performance of their licensing and supervisory functions needed for strict adherence to fire protection regulation while planning, approving and constructing the high rise building, was sought to be implemented strictly through the orders of this Court. not only in the case of Hotel Menino Regency, but also to stop similar violations in future, so as to serve the public interest in right earnest. 2. On notice by this Court, the Member Secretary, Panaji Planning and Development Authority, as well as the Director of Fire and Emergency Services. Goa filed their affidavits-in-reply contending that the subject building was constructed as per the approved plans and there were no deviations/violations of the terms and conditions. This Court, by order elated 2.8.2004, directed the hotel owner to be impleaded as an additional respondent and issued notice to him as well. By the said order Mr. Joseph Vaz, a learned Member of the Bar was appointed as a Commissioner to verify the width of the existing entry/exit and also to verify whether the same was in conformity with the plans or not. He submitted his report dated 4.8.2004 and thereafter, the petitioner filed a rejoinder along with some photographs. The Director of Fire and Emergency Services, State of Goa filed an additional affidavit. The hotel owner also has filed affidavit-in-reply. By order dated 4.8.2004, M.J.A. Lobo was appointed to act as an amicus curiae and the petition was admitted by order dated 11.8.2004 and was directed to be finally heard on 6.9.2004. 3.
The Director of Fire and Emergency Services, State of Goa filed an additional affidavit. The hotel owner also has filed affidavit-in-reply. By order dated 4.8.2004, M.J.A. Lobo was appointed to act as an amicus curiae and the petition was admitted by order dated 11.8.2004 and was directed to be finally heard on 6.9.2004. 3. There is no dispute that Hotel Menino Regency is located in the City of Panaji and the development permission under Section 44 of the Town and Country Planning Act, 1974 was issued on 1.3.2001 by the Panaji Planning and Development Authority. On 23.3.2001, the hotel owner applied for NOC from the Director of Fire and Emergency Services, State of Goa. Site inspection was held on 25.9.2001 and the Director recommended the installation of fire safety measures and other fire fighting equipments in keeping with the requirements under the National Building Code of India - Part IV Fire Protection, as amended in 1997. On 30.4.2003, No Objection Certificate was granted, after site inspection. In the approved plan, there was a provision for 10 car parking spaces in the basement and four car parking spaces on the ground floor. The building, as per the approved plan, had proposed a basement, ground floor plus five floors, having total 36 rooms, one hall on the first floor admeasuring 158.70 sq. metres and a restaurant admeasuring 79 sq. metres. The minimum width of the access to the street shall be 3 metres as per Condition 4.10 (3)(a) and the car parking area shall have two independent accesses leading to the street, if the car parking exceeds 19 parking spaces as per Condition 4.10 (3)(b) of the Regulations 2000. Under Condition 4.14 of the said regulations, all high rise buildings should be planned, designed and constructed in accordance with Part IV of Fire Protection of National Building Code of India by providing fire fighting requirements, arrangements and installations. The Planning and Development Authority (Development Plan) Regulations 2000, framed under Section 141 of Town and Country Planning Act, 1974, have adopted Part IV of the National Building Code of India. The height of the building, as per the approved plan, was 19.60 metres. 4. The Court Commissioner, in his report dated 4.8.2004 pointed out the following lapses/violations,- (a) The building was •not constructed as per the approved plan. Inasmuch as, as per the plan the front portion of the building admeasured 11.75 sq.
The height of the building, as per the approved plan, was 19.60 metres. 4. The Court Commissioner, in his report dated 4.8.2004 pointed out the following lapses/violations,- (a) The building was •not constructed as per the approved plan. Inasmuch as, as per the plan the front portion of the building admeasured 11.75 sq. metres, but at the site it was found that the front side of the building constructed admeasured 13.10 metres; (b) There is only one way to go to the basement, totally 2.80 metres in width, inclusive of the staircase and there is no separate exit to go up from the basement, admeasuring 3 metres as shown in the approved plans; (c) There is no land available at the rear side of the building in the manner it has been described in the approved plans for parking etc., - plans show one thing and the condition at the site is totally different. (d) The basement has spartex type tile flooring, clean and tidy and there were three small cars parked on one corner, on the western side there was a room fully furnished with office furniture, computers/filing cabinets, etc. and at the other end of the basement, there was another room which was under lock. As per the second affidavit submitted be the Director of Fire and Emergency Services, the hotel owner has been issued a show cause on 5.8.2004 for withdrawal of no objection certificate for breach of the conditions and requirements of fire safety. The said notice has been replied on 7.8.2004 stating that the open space at the rear side of the building which was covered by plastic sheets the plastic sheets have been removed and the fire escape staircase is built in accordance with the approved plans and permissions. The office rooms which were made in the basement area have been removed and the entire basement area has been cleared. 5. As per regulation No.2 (44). "height of the building" means the vertical distance measured from the plinth of the building, not exceeding 0.90 metre from the adjoining road level to the top of the finished level of the top must roof slab in case of flat roofs and to the eaves level of the topmost roof slab in case of sloping roofs. As per Regulation 2.(45) "high rise building" means a building having height of more than 15.40 metres.
As per Regulation 2.(45) "high rise building" means a building having height of more than 15.40 metres. "Parking space" means an area used to park vehicles excluding the driveway connecting with a street and permitting ingress and egress of the vehicles. "Plinth" means the portion of a structure between the surface of the floor immediately above the ground and the ground level. Under Regulation 4.10 the hotels other than five and four stars are required to provide one parking space for four rooms. Under Regulation 4A.5, every building shall have minimum sides and rear setbacks as per Table - VI. For the hotel buildings setback specified is 5.40 metres. However, Regulation 4A.6(4) states that the building may be allowed with side setbacks with less than those specified in Table VI limited to be a minimum of 1.5 metre, provided no light and ventilation is taken from that side. In Municipal Areas, Buildings shall be permitted to touch the boundary or leave a minimum distance of 1.5 metres on one or both the sides provided no light and ventilation is taken from that side. The Regulations 2000 are required to be followed while constructing the buildings pursuant to the permissions granted under the Town and Country Planning Act, and the Licensing Authorities are duty bound to ensure that these building constructions are carried out strictly as per the terms and conditions of the licence and the Regulations 2000. Any deviation found thereof, has to be viewed seriously and it is imperative that the authorities concerned act with sensitivity in such cases. 6. Though the petition has been opposed on the ground that it is not a "pro bono publico" petition, the fact remains that the petitioner had pointed some major lapses/violations by the hotel owner while constructing the building. Mr. Thali, the learned counsel appearing for the Planning Authority submitted that these lapses are within the permissible limits and, therefore, there is a case for regularization and no action is called for on account of the alleged violations.
Mr. Thali, the learned counsel appearing for the Planning Authority submitted that these lapses are within the permissible limits and, therefore, there is a case for regularization and no action is called for on account of the alleged violations. The petitioner mainly contended that (a) there was no separate entry and exit to the basement area used for car parking; (b) the fire fighting equipments installed in the hotel were not in keeping with the fire fighting regulations adopted by the Corporation as well as the State Government and the setback on either side was not left as per the approved plans, including the height of the building. All these issues have been duly examined by us and we have noted that after the petition was admitted. the Director of Fire and Emergency Services, the Corporation of City of Panaji and the Panaji Planning and Development Authority have taken some steps, after they inspected the building afresh. The hotel building is a high rise building as defined and it ought to comply with the building regulations as well as the fire safety norms. It is also contended that the high rise building must abut a road having 12 metres' width and it appears that the said road is only 10 metres in width. It would be imperative that all the concerned authorities, viz. the Corporation of City of Panaji, Director of Fire and Safety Services, and the Panaji Planning and Development Authority cause a fresh inspection of this building and take appropriate steps to ensure that all the conditions laid down while sanctioning the building plans or while granting the no objection certificates are followed strictly and wherever the regularization, within the permissible limits is permissible, the same be considered by the respective authorities. In fact, it appears from this case that all these authorities are required to have a re-look at all the high rise buildings within the Corporation area and a possibility of such buildings coming up in breach of the conditions laid down while sanctioning the building .plans. cannot be rule out. This action would be in the public interest and also in the interest of the Corporation, so as to raise its proper tax levy.
cannot be rule out. This action would be in the public interest and also in the interest of the Corporation, so as to raise its proper tax levy. The violators of the conditions will have to be given some time to comply with the directions and if they fail to do so within the specific period, the Corporation as well as the Planning Authority and other Statutory Authorities well have to act as per the Rules and Regulations and if it is required to demolish some structures, they shall do so. If the building is constructed beyond the permissible height, the additional area has to go, unless it could be regularised under the building construction Rules and Regulations. 7. So far as the instant case is concerned, we have noted that pursuant to the notices issued by this Court some steps have been taken to correct the situation. However, it is necessary that the Corporation as well as the Planning Authority as also the Director of Fire and Emergency Services cause a fresh inspection of this building and take due steps in keeping with the regulations, within a period of three months. We order accordingly. A compliance report shall be submitted by each of these authorities to the Registry of this Court within four months from today. 8. We also direct the authorities to inspect all the high rise buildings which have come up in the year 2000 onwards and located within the limits of Corporation of the City of Panaji and submit a report to the Registry of this Court. In case there are any deviations while constructing such buildings action as per the Regulations 2000 shall be initiated. 9. Petition disposed of in terms of the above direction and rule is made absolute, partly. The professional fee for the Amicus Curiae is quantified at Rs. 1.000/- and the fee of the Commissioner Mr. J. Vaz is computed also at Rs. 1000/-. Order accordingly.