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2021 DIGILAW 362 (BOM)

Shekhar Sukhtanker v. Village Panchayat

2021-02-16

M.S.SONAK

body2021
JUDGMENT M. S. Sonak, J. - Heard Mr. Shivan Desai for the petitioner. 2. The challenge in this petition is to the following orders/ communications:- (a) the communication dated 14.02.2020 by which the Village Panchayat of Se-Old Goa has denied occupancy certificate in respect of the Block-E comprising of 11 apartments in a building complex described as "Samarth Enclave"; (b) The judgment and order dated 20.03.2020 made by the Block Development Officer (BDO), dismissing petitioner's appeal against the communication dated 14.02.2020; (c) The judgment and order dated 22.09.2020 made by the Deputy Director of Panchayats dismissing petitioner's revision against the BDO's order dated 20.03.2020. 3. At the outset, Mr. Desai, the learned counsel for the petitioner states that the petitioner will pay the demanded cess in terms of the building and other Construction Workers Welfare Cess Act, 1996 as demanded by the Panchayat. This means that there is no challenge to the orders concurrently made demanding the payment of such cess as a pre-condition of issuance of occupancy certificate in respect of Block-E. 4. In addition to the aforesaid demand, the Panchayat, has refused to issue the occupancy certificate in respect of Block-E, inter alia on the following main grounds: (a) Non-payment of construction license fees by the petitioner and the insistence of the petitioner that the license fees paid by one Mr. M. V. Ghatkar be treated as full and final; (b) The non-setting up of a Sewage Treatment Plant (STP) for the project; (c) Non-setting up of the Garbage Disposal Facility for the project. 5. Mr. Desai, the learned counsel for the petitioner points out that most of the aforesaid grounds, including in particular the ground of non-setting up of STP or Garbage Disposal Facility were mentioned in the communication dated 14.02.2020 denying occupancy certificate to Block-E. He relies on the principle in Mohinder Singh Gill and others v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 to submit that the statutory orders cannot be supplemented by giving additional reasons in affidavits. Besides, Mr. Desai points out that in terms of the rules and regulations as existing at the time of issue of license and clearance by various authorities, there was no requirement of either setting up of STP or Garbage Disposal Facility. Besides, Mr. Desai points out that in terms of the rules and regulations as existing at the time of issue of license and clearance by various authorities, there was no requirement of either setting up of STP or Garbage Disposal Facility. He further points out that the requirement of setting up of STP or Garbage Disposal Facility was introduced by an amendment which came in December 2016. He points out that it is for this reason that the condition for setting up of STP was in fact omitted in the final technical clearance issued for the project in the year 2015. He submits that the occupancy certificate has already been issued in respect of Blocks A to D without insisting upon either setting up of STP or Garbage Disposal Facility. He submits that at this stage it will not be possible for the petitioner to set up an STP and Garbage Disposal Facility. He submits that in the absence of any legal requirement to provide STP or Garbage Disposal Facility, the Panchayat cannot insist upon compliance with such conditions. He submits that the impugned communication as well as orders are therefore vulnerable and warrant interference. 6. Mr. Desai submits that initially the entire project which was to comprise about 5 building blocks was described as Block A and Block B and even the license fees were paid on the said basis. He points out that at a later stage there were revisions and the plea was, for sake of convenience, described as Block A to Block E. He points out that there was no change in the FAR consumed and therefore, there could have been no requirement paying additional construction fees as demanded by the Panchayat. He submits that since this aspect has not been considered by the BDO as well as the Deputy Director of Panchayats, the impugned orders warrant interference. 7. Mr. Desai submits that the completion certificate has already been issued in respect of Block E and therefore, there is no ground for resisting the issuance of occupancy certificate. For all these reasons he submits that the impugned communication as well as the impugned judgment and order warrant interference. 8. 7. Mr. Desai submits that the completion certificate has already been issued in respect of Block E and therefore, there is no ground for resisting the issuance of occupancy certificate. For all these reasons he submits that the impugned communication as well as the impugned judgment and order warrant interference. 8. According to me, the most important issue in the present matter is the resistance on the part of the petitioner to set up an STP and Garbage Disposal Facility for a block of buildings by whatever nomenclature called comprising no less than 66 apartments. The technical clearance issued on 18.03.2013 specifically relates to the work of proposed construction of "residential building Block A to E (revised plan) as per the enclosed approved plans in the property zoned as Settlement (S2) (VP-1) in the Outline Development Plan of Panaji (old ODP) and situated at Ella village, bearing Survey No.114/H-3 of Tiswadi Taluka with the following conditions". 9. The condition nos.20 and 22 of the Tenchical Clearance order dated 18.03.2013, which is specifically a technical clearance order inter alia in respect of Block E together with Block A to D, read as follows: "20. The developer shall established the sewage treatment plant as per the specification. 22. The vermi composting power for treatment and disposal of bio degradable solid waste generator should be provided." 10. Now there is nothing pointed out from the record that this technical clearance order dated 18.03.2013 which is so clear and so specific has been superseded, rescinded or modified. All the authorities, in terms, have analyzed the record and quite correctly held that the technical clearance order dated 18.03.2013 stands and therefore, the petitioner, cannot resist setting up of an STP or Garbage Disposal Facility for such a substantially large project which is to comprise 66 apartments at Ella, Old Goa. 11. Mr. Desai relied on a technical clearance dated 16.01.2015 to submit that this is in supersession of the earlier technical clearance order dated 18.03.2013. A perusal of the technical clearance dated 16.01.2015 does not suggest that the same is in supersession of the technical clearance dated 18.03.2013. Besides, the 16.01.2015 technical clearance order refers to "Technical Clearance is hereby granted for proposed construction of residential building (revised plan) as per the enclosed approved plans ......". A perusal of the technical clearance dated 16.01.2015 does not suggest that the same is in supersession of the technical clearance dated 18.03.2013. Besides, the 16.01.2015 technical clearance order refers to "Technical Clearance is hereby granted for proposed construction of residential building (revised plan) as per the enclosed approved plans ......". From the plan appended to this document, it is not possible to accept that this technical clearance was meant to supersede or modify the earlier clear and cogent technical clearance order dated 18.03.2013. There is nothing in the technical clearance dated 16.01.2015 which either expressly or impliedly suggests that the important requirement of setting up of STP and Garbage Disposal Facility was done away with or the basis on which the same was done away with. Therefore, based on the technical clearance dated 16.01.2015, the petitioner cannot seek a waiver from the established STP or a Garbage Disposal Facility for a project which is to comprise no less than 66 apartments at Ella, Old Goa. 12. Almost three authorities after due application of mind have concluded that at no stage there was any modification or omission regards the condition for setting up of STP or Garbage Disposal Facility. The fact that some completion certificate may have been issued or even occupancy certificate issued for Block A to D does not mean that the all important condition for setting up of an STP or Garbage Disposal Facility stands waived or overlooked. Similarly, there is no basis to hold that there was no legal requirement for setting up of an STP or Garbage Disposal Facility. Even if we are to assume that the statutory provisions did not specifically make reference to STP or Garbage Disposal Facility, the local authorities were entitled to insist upon the requirement of having an STP or Garbage Disposal Facility considering the magnitude of the project. The BDO has already observed that both the National Green Tribunal as also this Court have been monitoring the issue of waste management in the State of Goa. This issue has assumed large proportions and therefore, if the local authorities or planning authorities insist upon the builders and developers setting up STP or Garbage Disposal Facility, at least the Writ Court, will not interfere based upon a plea that Panchayat's communication dated 14.02.2020 did not make specific reference to the issue of STP or Garbage Disposal Facility. 13. This issue has assumed large proportions and therefore, if the local authorities or planning authorities insist upon the builders and developers setting up STP or Garbage Disposal Facility, at least the Writ Court, will not interfere based upon a plea that Panchayat's communication dated 14.02.2020 did not make specific reference to the issue of STP or Garbage Disposal Facility. 13. In any case, if the communication dated 14.02.2020 issued by the Panchayat is perused, then, the Panchayat complains about a disconnect between the sets of approved plans issued by various authorities. It is possibly, based on this disconnect that the petitioner seeks to resist setting up an STP or Garbage Disposal Facility for such a huge project comprising no less than 66 apartments at Ella, Old Goa. 14. Thus, there is no error, much less to the jurisdictional error in the approach of the BDO and the Deputy Director of Panchayats in dismissing the petitioner's appeal as well as the revision on account of the failure on the part of the petitioner to set up an STP or Garbage Disposal Facility. 15. Insofar as the issue of payment of construction license fees is concerned, at least prima facie, the record indicates that the initial construction license was issued in the name of M. V. Ghatkar for which the construction license fees were paid. This construction license was in respect of Block A and B. However, the subsequent construction licenses dated 19.04.2013 and 19.08.2013 relate to Blocks A, B, C, D and E i.e. the total of 5 clocks. The Deputy Director of Panchayats as well as the BDO have noted that the initial license was in the name of M. V. Ghatkar, the 2013 license was in the name of M/s. Sukhtanker Associates Builder and Developers. 16. The connect between at least M.V. Ghatkar and other individual/agencies is not clear from record. There is also no clarity as to whether the additional building blocks were set up or this was the case of only renumbering or reclassifying the existing blocks or buildings. Taking into consideration all these aspects, it cannot be said that the BDO or the Deputy Director of Panchayats have committed any jurisdictional errors or that there is any perversity in their reasoning and findings. Therefore, there is no case made out to interfere with the impugned orders. 17. Taking into consideration all these aspects, it cannot be said that the BDO or the Deputy Director of Panchayats have committed any jurisdictional errors or that there is any perversity in their reasoning and findings. Therefore, there is no case made out to interfere with the impugned orders. 17. However, if the petitioner is able to clarify with the Panchayat and establish that the original construction license as well as the construction licenses of 2013 and 2015 are in respect of the same number of buildings and further, there is a connect between M.V. Ghatkar and Shekhar Sukhtanker and M/s. Sukhtanker Associate Builders and Developers, the Panchayat can always take these aspects into consideration. This liberty can therefore be reserved to the petitioner. 18. For all the aforesaid reasons, there is no case made out to interfere with the impugned orders. The stance of the Panchayat, the BDO and the Deputy Director of Panchayats that no occupancy certificate can be issued to a project comprising no less than 66 apartments, without the petitioner-Builder providing a STP and Garbage Disposal Facility is quite correct and warrants no interference. Besides, it is always open to the petitioner to provide a STP and Garbage Disposal Facility and then re-apply for occupancy certificate. 19. This petition is therefore dismissed with the limited liberty to the petitioner to pursue the aspect of construction fees with the Panchayat.