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2014 DIGILAW 292 (BOM)

Antonio G. Braganza v. State of Goa

2014-02-05

F.M.REIS, R.S.DALVI

body2014
JUDGMENT R.S. Dalvi, J. 1. Rule. Made returnable forthwith. The petitioner has taken exception to the alleged illegal construction and the alleged industrial use of the property of respondent Nos. 8 and 9 who are his neighbours. The construction has been sought to be shown in a certain part of the plot which was revised and which shows three blocks being block Nos. A, B and C on survey Nos. 164/1 and 164/12. The plan shows the total built up area 849.84 square metres consuming FSI/FAR 79.05%. Respondent Nos. 8 and 9 contend that the 0.8 FAR which is entitled to be used will not be used. The plan shows two portions of the proposed building 'A' as existing structure to be demolished. It is contended that without demolishing, the FSI/FAR has not been exceeded. 2. Respondent Nos. 8 and 9 are also the owners of plot on survey 163/4. The structures on those survey numbers are stated by the petitioner to be wholly illegal. Respondent Nos. 8 and 9 claim those structures to have been constructed since 1982. The petitioner claims that it is not shown in the re-survey plan. 3. It would be for the Village Panchayat to take into account these facts to determine whether the structure of respondent Nos. 8 and 9 is wholly illegal as having exceeded the FAR or FSI or is only an irregularity and accordingly regularisable. 4. In addition, the site inspection was carried out by the Town and Country Planning Authority. The record of the site inspection shows the various illegalities/irregularities in the structures of respondent Nos. 8 and 9 on the aforesaid survey numbers. The most glaring illegality/irregularity is the construction of part of the second floor in the structure named as Block 'B' which is a residential bungalow. Counsel on behalf of respondent Nos. 8 and 9 fairly conceded that one room of 75 square metres has been constructed on the second floor. This has been shown in the inspection report. Respondent Nos. 8 and 9 were present thereat. They have produced their documents. 5. This inspection report has not been sent to the Village Panchayat. Only a letter dated 21.01.2013 has been sent to the Village Panchayat setting out only a part of the illegality/irregularity mentioned in the inspection report. This has been shown in the inspection report. Respondent Nos. 8 and 9 were present thereat. They have produced their documents. 5. This inspection report has not been sent to the Village Panchayat. Only a letter dated 21.01.2013 has been sent to the Village Panchayat setting out only a part of the illegality/irregularity mentioned in the inspection report. We do not understand as to why inspection report which is to be sent has not been sent to the Village Panchayat for further action. We find total lack of public duty on the part of the authorities. Counsel on behalf of the Village Panchayat stated that pursuant to the letter dated 21.01.2013 they have acted. They have acted without inspection and without the report of the Town and Country Planning Authority. We do not see how they could have acted thus. Since it is contended that the entire construction of respondent Nos. 8 and 9 is under sanctioned plan or is regularisable, the Village Panchayat with the assistance of the Town and Country Planning Authority would be in a position to determine these aspects to finally conclude what portion, if any, is illegal or unauthorised and must be demolished. 6. With regard to the aspect of respondent Nos. 8 and 9 for setting up an industry of paper cutting, the petitioner has relied upon the industrial licence issued to respondent Nos. 8 and 9 dated 07.03.2008 shown as the consent to operate under Section 25 of the Water (Prevention & Control of Pollution) Act for manufacture/production of toilet paper rolls and facial tissue papers. The petitioner contends that industrial use is prohibited in the settlement area. The petitioner has shown the permission for construction and NOC granted by the Town and Country Planning Authority for reconstruction of the existing building for manufacture/production as cottage industry. The petitioner contends that such industrial use is impermissible under the Regional Plan 2001 which is applicable as of date. Permissible land use is shown zone wise in the Regional Plan. In the Settlement Zone S1, in which the business of respondent Nos. 8 and 9 is situated, Residential use, Commercial use and Public utilities/services mentioned therein are permissible. A cottage industry is indeed not found in either the uses or use on special grounds. Permissible land use is shown zone wise in the Regional Plan. In the Settlement Zone S1, in which the business of respondent Nos. 8 and 9 is situated, Residential use, Commercial use and Public utilities/services mentioned therein are permissible. A cottage industry is indeed not found in either the uses or use on special grounds. The petitioner contends that under Section 16 and 16A of the Town and Country Planning Act, the Regional Plan would be used for all development programmes which must confirm thereto. Under the Planning and Development Authority (Development Plan) Regulations 1989, the land uses are specified. The Residential Zone including the Settlement Zone S1 shows all kinds of industries prohibited under Rule 26.1.1. However, the respondents have shown the permitted use in the Residential Zone to include the industries not using more than 15H.P. motor/motors driven electrically under the Regulation 26B(vi). This exception includes a printing press. Industry of respondent Nos. 8 and 9 is a paper cutting industry for facial and toilet papers. It would be analogous to the printing press. It is not shown that it has used more than 15H.P. of electrical motor. 7. Counsel on behalf of Town and Country Planning Authority has drawn our attention to the Appendix I being the guidelines under interpretation of utilization plan for Goa under Regional Plan for Goa 2001. Under clause 2 of Appendix I, the Settlement Zone is meant to include a cottage industry. The permission of respondent Nos. 8 and 9 for reconstruction of the existing building is for use as a cottage industry. The licence shows the paper cutting industry is permitted. 8. In view of the above, strict industrial use not otherwise accepted in the residential area is not clearly shown by the petitioner. The petitioner contends that there has been a lot of nuisance by noise etc., which is a disputed fact and would require to be proved by the petitioner. Of course, the tort of nuisance of any industry even otherwise permissible in a residential locality would allow the petitioner to take recourse to law for abatement of such tort. No order in Writ Petition can be passed in that behalf. Respondent Nos. 8 and 9 shall make an application for regularisation along with all the sanctioned plans to the Town and Country Planning Authority within two weeks from today. No order in Writ Petition can be passed in that behalf. Respondent Nos. 8 and 9 shall make an application for regularisation along with all the sanctioned plans to the Town and Country Planning Authority within two weeks from today. The Town and Country Planning Authority and the Village Panchayat shall consider the said application in accordance with law after taking inspection of the entire property of respondent Nos. 8 and 9 as required and pass necessary orders for demolition if required within six weeks from today. The authority shall thereafter report to the Court within two weeks. Rule is granted to the above extent. Writ Petition is disposed of accordingly. Stand over to 21.04.2014 for report.