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2019 DIGILAW 807 (BOM)

Kennedy Alex Fernandes v. State Of Goa

2019-03-20

PRITHVIRAJ K.CHAVAN, R.D.DHANUKA

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JUDGMENT R. D. Dhanuka, J. (Oral) - By this petition filed under Article 226 of the Constitution of India, the Petitioners seek a writ of mandamus or any other writ, order or direction to Respondent Nos.2 and 4 to revoke construction licence dated 1st October, 2018 and order dated 23rd August, 2018 respectively. The Petitioners also seek an order or direction against the Respondent Nos.2 to 4 to stop the illegal construction being carried out by Respondent No.5 and also seek a direction to demolish the illegal construction being carried out by Respondent No.5 in violation of law. 2. Some of the relevant facts for the purpose of deciding this petition are as under : The Petitioner No.1 was a complainant alleging the illegal construction carried out by Respondent No.5. It is the case of the Petitioners that a construction plan was approved by the Deputy Town Planner of Bardez at Mapusa, in favour of Respondent No.5 on 31st October, 2005 pursuant to which the Respondent No.4 issued a development order on 15th April, 2016. The Respondent No.2 issued a construction licence on 6th May, 2016, in view of the development order dated 15th April, 2016 in favour of Respondent No.5. On 21st August, 2017, the Petitioner No.1 made a complaint to Respondent No.4. 3. Pursuant to the said complaint, the Respondent No.3 conducted an inspection and submitted a report on 27th September, 2017. On 6th October, 2017, an order of revocation thereby revoking the development order dated 15th April, 2016 came to be passed. This Court by an order dated 27th January, 2017 in Writ Petition No.1085 of 2016 was pleased to set aside the said order of revocation and remanded the matter back to the Authority. On 23rd August, 2018, the Authority allowed the revision of plan. The Petitioners once again made a representation on 10th September, 2018 to Respondent Nos.2 and 4. On 1st October, 2018, the Respondent No.2 issued a construction licence in favour of Respondent No.5. On 19th October, 2018, the Petitioners made another representation to Respondent Nos.2 to 4 raising various grievances against the Respondent No.5. 4. Mr. The Petitioners once again made a representation on 10th September, 2018 to Respondent Nos.2 and 4. On 1st October, 2018, the Respondent No.2 issued a construction licence in favour of Respondent No.5. On 19th October, 2018, the Petitioners made another representation to Respondent Nos.2 to 4 raising various grievances against the Respondent No.5. 4. Mr. C. Fonseca, learned counsel for the Petitioners invited our attention to some of the exhibits annexed to the writ petition including the plans and would submit that the setback maintained by Respondent No.5 in the approved construction was less than three metres from the existing compound wall and the road existing at loco. The inspection report dated 27th September, 2017 of Respondent No.4 clearly indicated that the existing road varies between 4.50 to 4.70 metres of the western side to 5.70 metres on the south-western portion of the road. It is submitted by the learned counsel that the construction activity being carried out by Respondent No.5 in the property bearing survey No.109/20-C is less than three metres in distance from the northern edge of the property of the Petitioners. The said construction is less than six metres away from the centre line of the existing road which itself was less than approximately five metres in width. 5. It is submitted by the learned counsel for the Petitioners that the Respondent No.5 is carrying on business in the hospitality industry being a guest house. The plan submitted by Respondent No.5 would indicate that the area which was originally reserved for parking is now being developed for commercial purpose with no additional alternate provision for parking considering an additional commercial structure being constructed in the said property. The Respondent No.5 has been operating the said guest house consisting of six rooms with lodging tourists, domestic and international. He submits that there is no parking facility available to the guest lodging by Respondent No.5 in the said guest house in the building ''B''. The vehicles are being parked on the existing narrow road which is as on date is 4.5 metres in width causing traffic congestion. 6. The learned counsel for the Petitioners invited our attention to the order dated 23rd August, 2018 passed by the Planning and Development Authority granting permission for construction of Gymkhana (revision) submitted by Respondent No.5. He submits that the Petitioners are the joint occupiers. There is no scope of expanding the road. 6. The learned counsel for the Petitioners invited our attention to the order dated 23rd August, 2018 passed by the Planning and Development Authority granting permission for construction of Gymkhana (revision) submitted by Respondent No.5. He submits that the Petitioners are the joint occupiers. There is no scope of expanding the road. The road does not have width of six metres as required under the provisions of the Goa (Regulation of Land Development and Building Construction ) Act, 2008 and the Goa Land Development and Building Construction Regulations, 2010. 7. The learned counsel has placed reliance on regulation 4.4.1 in support of his submission that the setback area on site is only about 3 metres as against the minimum requirement of setback under the said regulation is 5 metres. The road has to be of the width of 10 metres which requirement is also not met with by Respondent No.5. He submits that the Authorities who are parties to this petition have not been enforcing the regulations framed by the Government of Goa in respect of the construction carried out by Respondent No.5. It is submitted that the Respondent No.5 had applied for permission on the proposed road contrary to the Circular dated 8th August, 2014 issued by the Planning Authority. The learned counsel submits that since the Respondent Nos.1 to 4 have not complied with their duties and obligations under the said Act and Rules, this Court shall direct those Respondents to remove the unauthorized construction carried out by Respondent No.5 and to grant various reliefs as prayed for by the Petitioners in this petition. 8. Mr. Lotlikar, learned Senior Counsel for Respondent No.5 on the other hand would submit that Respondent No.5 is the owner in possession of the property bearing survey No.109/20-C. The said property is in addition to the construction which is being carried out. There also exist a bungalow and building identified as building ''B'' in the said property. The construction of the building identified as building ''B'' was carried out in the year 2009 after obtaining necessary permissions from the Authorities. He submits that in terms of the Regional Plan of 2001 which was in force at that point of time, a six metres wide access road was required to be maintained for developing any property. The construction of the building identified as building ''B'' was carried out in the year 2009 after obtaining necessary permissions from the Authorities. He submits that in terms of the Regional Plan of 2001 which was in force at that point of time, a six metres wide access road was required to be maintained for developing any property. He submits that even the Petitioner No.1 had carried out construction in the adjoining property on the basis of the same requirements of six metres wide access road in terms of the Regional Plan of 2001. The Petitioners thus cannot make any grievance in respect of the size of the road as six metres wide. 9. The learned Senior Counsel submits that his client had already obtained requisite permissions for carrying out the construction of club house from the Respondents-Authorities i.e. the construction licence dated 6th May, 2016. The Respondent No.4 had already granted development permission on 15th April, 2016. He submits that the permission granted in favour of Respondent No.5 was revoked by the Respondent No.4 on the basis of plan filed by the Petitioners without hearing the Respondent No.5. This Court had accordingly set aside the said order passed by Respondent No.4 and had remanded the matter to the Authority for passing a fresh order in accordance with law. 10. It is submitted by the learned Senior Counsel that the Respondent No.5 had applied for revision of plan which is allowed by order dated 23rd August, 2018 and on the basis of which the Respondent No.2 has already issued a construction licence on 1st October, 2018. He submits that the revision plan dated 23rd February, 2018, for construction of a Gymkhana stands granted after carrying out inspection by the Authorities by following the provisions of the Act and Rules. No breach of any Act or Rules had been committed by Respondent No.5. He submits that adequate setback of three metres on the site has already been maintained by his client. His client had strongly placed reliance on the report of Surveyor dated 20th November, 2017 certifying that all the requirements of setbacks, height of the building and the permissible F.A.R. were complied with by Respondent No.5. It is submitted that on north-western portion of the property, the Respondent No.5 has already constructed a compound wall at a distance of one and half metre from the boundary line of the property. It is submitted that on north-western portion of the property, the Respondent No.5 has already constructed a compound wall at a distance of one and half metre from the boundary line of the property. The adequate setback is already maintained between the boundary of the property and the proposed construction. 11. It is submitted by the learned Senior Counsel that the Respondent No.5 has carried out construction for commercial use and has obtained requisite permissions under the law by maintaining three metres setbacks on all sides which also include three metres setback from the boundary of the property of the Petitioners as well. He strongly disputed that the property of Respondent No.5 was less than six metres away from the Central line of the existing road. It is submitted that several disputed questions of fact are raised by the Petitioners in the petition which cannot be decided in this writ petition. He submits that the arguments advanced by the learned counsel for the Petitioners are beyond the grounds raised in the writ petition. 12. In so far as issue of parking raised by the Petitioners is concerned, the learned Senior Counsel submits that his client has carried out the construction pursuant to the development permission granted by the Authorities in the year 2018 and has already made a provision for stilt parking which would accommodate and provide ample space for parking vehicles. He strongly placed reliance on the revised approved plans. It is submitted that the proposed commercial structure would not affect or cause any hindrance to the Petitioners or to the public at large. The guests visiting the guest house of his client as well as the proposed Gymkhana could easily park their vehicles in the stilt parking which is made available below the Gymkhana. There is ample space available in the property for parking which is being used by the guests in the property of Respondent No.5. The stilt parking below the Gymkhana would provide additional space for parking in addition to the existing space. 13. It is submitted by the learned Senior Counsel that the existing road of six metres wide is in conformity with the requirements of Regional Plan of 2001. 14. The stilt parking below the Gymkhana would provide additional space for parking in addition to the existing space. 13. It is submitted by the learned Senior Counsel that the existing road of six metres wide is in conformity with the requirements of Regional Plan of 2001. 14. The learned Advocate General for Respondent No.4 - Authority invited our attention to the various plans and permissions annexed to the petition as well as to the affidavit and would submit that the Respondent No.4 has already granted permissions and approved the revised plans based upon the report and site plans prepared by the registered Surveyors Mr. Prazares A. Gonsalves and the registered Architect Mr. Ashish G. Usgaonkar. The said site plans have been made by the authentic survey equipment. The Authority had already taken the inspection and had measured the said property within the compound wall while registering the surveyor report pointing out that the Respondent No.5 had left certain area outside the compound wall. There was no room for any error. The Respondent No.4 has also considered the detailed authentic survey plan along with the survey report submitted by Respondent No.5. 15. In so far as the setback area is concerned, the note of the registered Architect and the plan shows the actual setbacks at loco on the site of the proposed construction except at two points where the Architect has shown setback of 2.90 metres of north corner of the plot which had happened due to chamfering of the plot at the corner. Therefore, the advantage of point 0.10 metre can be granted since the Respondent No.5 has chamfered the compound wall for the safety of the traffic movement which is permissible within the rules. The Authority has considered 0.08 metre on one side edge of the proposed construction towards the southern side since the encroachment/triangular portion left by constructing compound wall is shown. 16. The learned Advocate General further submits that the proposed building plan approved on 23rd August, 2018 shows the stilt parking area on the stilt floor and also parking within the plot besides the stilt parking. There is sufficient parking provided for at loco by Respondent No.5. He further submits that the erstwhile MPDA as well as the V.P. Calangute have also granted permissions to the residential bungalow of Respondent No.5 having provided adequate parking. There is sufficient parking provided for at loco by Respondent No.5. He further submits that the erstwhile MPDA as well as the V.P. Calangute have also granted permissions to the residential bungalow of Respondent No.5 having provided adequate parking. All the grievances of the Petitioners are already addressed and all requisite rules and regulations have been complied with. It is submitted by the learned Advocate General that the initial permission was granted by the Respondent No.4 on 15th April, 2016. The Writ Petition has been filed by the Petitioners belatedly. He submits that there is no violation of any of the provisions of the said Act as well as the Rules. The petition thus deserves to be dismissed. 17. The learned Advocate General has placed reliance on regulations 6A.3.1 of the Regulations and would submit that in this case since the predominant view of Gymkhana is for lodgers of the guest house with five to six rooms and Respondent No.5 already having provided stilt parking in addition to the regular parking, there is compliance of provisions of the requisite parking in case of Gymkhana by Respondent No.5. 18. The learned counsel for the Petitioners in rejoinder would submit that only the Authority would supervise whether the parking provided by Respondent No.5 would be used only by the lodgers of the rooms in the guest house or by somebody else. He submits that all the permissions granted by the Authorities based on the reports prepared by the private surveyors and Architect are in breach of the said Act and Rules. 19. A perusal of the record indicates that Respondent No.5 had already constructed a residential bungalow and had submitted the revised plans which have been approved by the Respondent No.4 and other Authorities. The Petitioner No.1 had got his construction approved in the adjoining property on the basis of required six metres wide access road as was mandatory under the Regional Plan of 2001. The Authorities have considered all the provisions of the said Act and Rules while approving the original plans as well as the revised plans submitted by Respondent No.5 and has carried out the construction. In the affidavit filed by the Authorities, the compliance of various provisions of Act and Rules in respect of the setback area, parking space and width of the road by Respondent No.5 are confirmed. In the affidavit filed by the Authorities, the compliance of various provisions of Act and Rules in respect of the setback area, parking space and width of the road by Respondent No.5 are confirmed. The site plans were prepared by the registered Surveyors and Architects. The Authorities themselves have verified the correctness of the survey reports submitted by those registered Surveyors and Architects. The learned counsel for the Petitioners does not dispute before this Court that even the construction carried out by the Petitioner No.1 under the Regional Plan of 2001 was on the basis of six metres requirement wide access road. 20. The various objections raised by the Petitioners are contrary to the authentic documents produced on record by the Authorities and also the Respondent No.5. The Respondent No.5 has already provided sufficient car parking for the earlier structure as well as the Gymkhana constructed by Respondent No.5 and has made a statement before this Court that the said stilt parking would be used by the lodgers of various rooms in the guest house constructed by Respondent No.5 and the same would be sufficient. The statements made by Respondent No.5 in the affidavit in reply and across the bar are accepted. 21. The Authorities have accepted the fact that the Respondent No.5 has provided sufficient setback area. No interference is warranted with the decision taken by the Authorities while granting approval to Respondent No.5. In our view, the petition is devoid of merit. We therefore pass the following order : (a) The Writ Petition No.57 of 2019 is dismissed. There shall be no order as to costs. (b) Ad-interim order dated 22nd January, 2019 stands vacated.