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2022 DIGILAW 1599 (BOM)

Imelda Dias Souza E Silva v. State of Goa

2022-07-01

R.N.LADDHA, SANDEEP K.SHINDE

body2022
JUDGMENT Sandeep K. Shinde, J. - This Petition under Articles 226 and 227 of the Constitution of India, questions the legality of a development permission, under Section 44 of the Goa, Daman and Diu Town and Country Planning Act, 1974 and Rules, 1976 (Planning Act, 1974 and Rules of 1976, for short), granted by the Greater Panaji Planning and Development Authority- respondent no. 2 (PDA, for short) and construction license issued by the Corporation of the City of Panaji (CCP, for short), to the existing Confraria of the chapel-respondent no. 4, situated at Dona Paula, Panaji City bearing Chalta Nos. 15, 16, 17 and 18 of P.T. Sheet No. 193. 2. Briefly stated, the petitioner's case is that, late Anita Dias Souza was owner of properties bearing Chalta Nos. 7, 15, 16, 17 and 18 of P.T. Sheet No. 193, amongst other chalta numbers situated at Dona Paula (hereinafter referred to as the said properties). Anita bequeathed the said properties to the petitioner vide Public Will executed on 13.02.2006, before the Notary Ex-Officio in the office of the Civil Registrar cum Sub-Registrar, drawn in Book No. 153 at page no. 92V onwards. Anita by way of Deed of Sale dated 13.07.1981, had transferred and sold to respondent no. 4, chalta no. 15 admeasuring 185 square metres, designated as Plot No. B-1 and chalta no. 17, admeasuring 87.20 square metres, designated as plot no. B-3. Petitioner's late mother and grandmother had constructed the chapel in chalta no. 18/193, belonging to the family. Sometime in the year 1940. Although, the chapel was being used exclusively by Dias Souza family, as time passed, Dias Souza allowed the neighbours to offer prayers and perform religious ceremonies in the said chapel. However, sometime in the year 1980, it was agreed that a Committee in the name of 'Confraria of the Chapel of Dona Paula Taleigao' would be formed for the sole purpose of facilitating the daily operations of the said chapel; yet, chalta no. 18/193 was neither sold to respondent no. 4 nor were they put in possession of the same. As such, the respondent no. 4 were merely permitted to run the operations of the chapel, which was constructed by the family of the petitioner in the property belonging to her family. 3. The petitioner's case is that in the year 2003, an attempt was made by the respondent no. 4 nor were they put in possession of the same. As such, the respondent no. 4 were merely permitted to run the operations of the chapel, which was constructed by the family of the petitioner in the property belonging to her family. 3. The petitioner's case is that in the year 2003, an attempt was made by the respondent no. 4 to usurp the property belonging to late Anita. Thus, late Anita was constrained to make a complaint in the year 2003 to the Member Secretary of the then North Goa Planning and Development Authority. A copy of complaint dated 20.05.2003 is at Exhibit-D. 4. The petitioner suspected some foul play on the part of the respondent no. 4, in respect of the said properties and as such, called upon the PDA not to issue development/re-development permissions and approvals in chalta nos. 16 and 18 of P.T. Sheet no. 193 to the respondent no. 4. Vide communication dated 13.05.2020, the CCP was called upon not to grant construction license to the respondent no. 4 and to revoke any construction license, if already granted. Whereafter, upon collecting the information under the Right to Information Act, the petitioner was shocked to find that the respondent no. 4, vide Application dated 24.10.2019, had applied for development in the said chaltas 193/15, 16, 17 and 18 by seeking amalgamation of plots, repairs and additions to the existing structure. Whereupon, the respondents granted development permission dated 04.03.2020, in the suit properties; and permitted amalgamation of chalta nos. 15, 16, 17 and 18. It is in these circumstances, the construction license granted by the CCP and development permissions granted under Section 44 of the Planning Act, 1974, are challenged in this Petition. 5. Heard learned Counsel for the parties. 6. Mr. Rao, learned Counsel for the petitioner would contend that, without the consent of the petitioner and without the petitioner applying for, amalgamation of plots 15, 16, 17 and 18 could not have been permitted by the PDA, at the instance of respondent no. 4, of which, admittedly, it was not the owner. Nextly, he submitted that respondent no. 4, unauthorizedly and without being the owner of chalta nos. 16 and 18, cannot utilize the areas thereof, to claim additional FAR in respect of the proposed construction in the amalgamated plot. Mr. 4, of which, admittedly, it was not the owner. Nextly, he submitted that respondent no. 4, unauthorizedly and without being the owner of chalta nos. 16 and 18, cannot utilize the areas thereof, to claim additional FAR in respect of the proposed construction in the amalgamated plot. Mr. Rao further submitted that the Enquiry Officer in order dated 05.12.1990 erroneously held that chalta no. 16, having an area of 168 square metres has been gifted to Confraria of Chapel by Mrs. Anita Souza and chalta no. 18, is the land belonging to Mrs. Anita Souza, being occupied and in possession of said Confraria of the Chapel of Dona Paula, the Confraria of Chapel shall pay the survey fees @ 40 paisa for the land chalta nos. 15, 16, 17 and 18. He further submitted that the order directing to change the survey records and the effect given to the order of City Survey in property cards of chalta nos. 15 to 18, showing respondent no. 4 as holder in origin in title, was wholly illegal. 7. Mr. Rao has invited our attention to the statement of Anita Souza, purportedly recorded by the Enquiry Officer, City Survey, Panaji in Case No: Chalta No. 7, which states that Anita Souza, gifted chalta no. 7 to the respondent no. 4. Mr. Rao submitted that the said statement of Anita Souza neither bears out the date nor her signature. He submitted that in any case, the law does not acknowledge the gift of immovable property on the strength of the statement recorded by the Enquiry Officer. Additionally, Mr. Rao submitted that respondent no. 4 is neither the owner of chalta no. 16 and/or 18 nor the title in respect thereof, has matured, in favour of respondent no. 4 by adverse possession or otherwise. 8. Mr. Rao therefore submitted that the development permission in chalta nos. 16 and 18 have been granted in gross violation of the provisions of (i) the Goa, Daman and Diu Town and Country Planning Act, 1974 (Planning Act of 1974, for short); (ii) the Goa (Regulation of Land development and Building Construction) Act, 2008 (Act of 2008, for short) and (iii) Goa, Land Development and Building Construction Regulations, 2010 (Regulations of 2010, for short). Mr. Rao, therefore, submitted that the impugned permissions be quashed and set aside. 9. Mr. Shivan Desai, learned Counsel appearing for the respondent no. 4, Mr. Mr. Rao, therefore, submitted that the impugned permissions be quashed and set aside. 9. Mr. Shivan Desai, learned Counsel appearing for the respondent no. 4, Mr. Karpe, learned Counsel appearing for respondent no. 2 and Mr. A.D. Bhobe appearing for the respondent no. 3-Corporation of the City of Panaji, would argue that the development permissions have been granted and amalgamation of chalta nos. 15, 16, 17 and 18 has been permitted since the revenue record reflects the name of respondent no. 4 as the 'owners' in respect of chalta nos. 16 and 18 of P.T. Sheet no. 193. Mr. Desai submitted that the entries in the property cards carries the presumption of correctness and therefore, until the presumption is rebutted, development permission granted by relying on entries in property cards of chalta nos. 16 and 18 cannot be faulted with. Mr. Shivan Desai, learned Counsel would object to the maintainability of the Petition to state that the petitioner has an efficacious alternate remedy to challenge the permissions under the relevant statutes. Moreover, it is submitted that the petitioner complains several disputed questions of facts relating to title of property, chalta nos. 16 and 18 and therefore, this Petition itself was not maintainable. 10. Mr. Desai submitted that the respondent no. 4 was constituted considering that chalta no. 18 was exclusively allotted in favour of chapel administration. He submitted that the Committee deemed it appropriate to streamline the title and records in respect of chalta nos. 15, 16, 17 and 18 of P.T. Sheet no. 193 and accordingly, approached Mrs. Souza, who was the concerned heir in relation to all the four chalta numbers. Further, he contended that it was specifically agreed that chalta nos. 15 and 17 would be sold to respondent no. 4 and chalta no. 16 would be a gifted by her in favour of respondent no. 4. Mr. Desai further submitted that, since chapel was constructed by the Committee in the year 1935, out of their own funds and chalta no. 18 exclusively had been allotted in favour of the chapel administration in 1935 and since the chapel administration is in exclusive possession of chalta no. 18, it was deemed fit not to execute or obtain any transfer documents in respect of chalta no. 18. Therefore, it is the contention of the respondent no. 18 exclusively had been allotted in favour of the chapel administration in 1935 and since the chapel administration is in exclusive possession of chalta no. 18, it was deemed fit not to execute or obtain any transfer documents in respect of chalta no. 18. Therefore, it is the contention of the respondent no. 4 that the permission granted by the PDA by relying on the revenue entries in respect of the chaltas in question, having the presumption of correctness, the development permission and order issuing the construction license cannot be faulted with. 11. We have carefully considered the submissions of the Counsel appearing for the respective parties. Also perused the order dated 05.12.1990, passed by the Enquiry Officer, City Survey, Panaji and undated and unsigned, statement of Anita Souza, whereby, she purportedly gifted chalta no. 16 to the respondent no. 4 and letter dated 20.05.2003 addressed by Anita Souza to the Member Secretary, North Goa Planning and Development Authority, inter alia, objecting to granting development permission to respondent no. 4 in property bearing chalta nos. 16 and 18 of P.T. Sheet no. 193. 12. It is not in dispute that Anita in her lifetime by way of Deed of Sale dated 13.07.1981 had transferred and sold to respondent no. 4, chalta no. 15 (Plot B-1) and chalta no. 17 (Plot B-3). However, as a matter of fact Anita had not executed a valid instrument of transfer in respect of property chalta no. 16 in favour of respondent no. 4. In terms of Section 123 of the Transfer of the Property Act, a gift of immovable property, which is not registered is bad in law and cannot pass any title to the donee. Even otherwise, the statement of Anita purportedly recorded in enquiry proceedings, vide which, she purportedly gifted chalta no. 16 to respondent no. 4, was neither instrument of transfer nor does it bear out her signature or date. For these reasons, order of Enquiry Officer dated 05.12.1990, directing changes in survey record of chalta no. 16 was patently illegal and could not have been acted upon while granting the development permission. Likewise, prima facie, there is no material or evidence on record, suggesting that the title of respondent no. 4 in respect of chalta no. 18 has been matured in its favour by adverse possession or otherwise. Thus, to conclude title in chala nos. 16 was patently illegal and could not have been acted upon while granting the development permission. Likewise, prima facie, there is no material or evidence on record, suggesting that the title of respondent no. 4 in respect of chalta no. 18 has been matured in its favour by adverse possession or otherwise. Thus, to conclude title in chala nos. 16 and 18 has not passed to respondent no. 4-Confraria of Chapel nor it has acquired, sufficient interest, much less, enforceable rights therein. 13. Be that as it may, the question that falls for consideration is that, whether, permission granted by the Panaji Planning & Development Authority was in conformity with the provisions of the Act of 1974 and Regulations of 2010. 14. Section 44 of the Planning Act, 1974, regulates grant of development permission. Provisions of it convey that any person intending to carry out any development in respect of, or change of use, of any land shall make an Application in writing to the Planning and Development Authority for permission in such form, containing such particulars and accompanied by such documents and plans as such, may be prescribed. 15. The Land Development and Building Construction Regulations of 2010 framed by the Government of Goa in exercise of the powers conferred by sub-section (1) and (2) of Section 4 of the Goa Act of 2008, prescribes the procedure for securing development permissions, sub-division and amalgamation of plots, zoning of land and general requirements of land development. Regulation 3.1 provides, that every development shall conform to provisions of the relevant Acts, Rules and Regulations and appropriate plan in force and no development shall be carried out, without obtaining prior permission in the manner prescribed under these Regulations from time to time. Regulation 3.2A prescribes Appendix A1 an Application format, for development permission under Section 44 of the Planning Act, 1974. Appendix A1 indicates that Application is to be made by owner/s of land, to the Member Secretary of the Planning Authority by the owner/s of the land alongwith the drawings and documents duly authenticated/signed and prescribed. Sub-clause (d) of Clause 2 of Appendix A1 imply that 'documents showing ownership of land', are to be duly authenticated/signed, as a prescribed and affidavit from owner [clause (g)] to be forwarded alongwith the Application for development permission. Question is who is the owner/s of land. Sub-clause (d) of Clause 2 of Appendix A1 imply that 'documents showing ownership of land', are to be duly authenticated/signed, as a prescribed and affidavit from owner [clause (g)] to be forwarded alongwith the Application for development permission. Question is who is the owner/s of land. It is answered in Regulation 2(95), which reads as under: ''Owner'-(a) When used with reference to any land or premises, means, (i) a person/persons/institution/society who holds sufficient interest or title in such land or premises by virtue of being the holder of a title deed or a Government/Court order declaring him/them to be the owner, or (ii) The person who receives the rent of the said land/premises or who would be entitled to receive the rent thereof if the premises were let, and includes- (1) an agent or trustee who receives such rent on account of the owner, (2) an agent or trustee who receives the rent of or is entrusted with or concerned for, any premises devoted to any religious or charitable purposes, (3) a receiver, administrator or manager appointed by any Court of competent jurisdiction, to have the charge of, or to exercise the rights of an owner of the said premises, and (4) a mortgage in possession.'' (Emphasis supplied) 16. Expression 'Owner' is defined under Section 2(22) of the Planning Act, 1974, which reads as under: ''2(22) 'Owner' in relation to any property, includes the person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager, or receiver for another person, or for any religious or charitable purpose, the rents or profits of such property.'' 17. Regulation 3.2D prescribes documents to be submitted alongwith the Application. Sub-clause (a) of Regulation 3.2D, reads as under: ''(a) The right of ownership or interest in the land sufficient to enable the applicant to carry out the intended development supported by the following documents (wherever applicable). (i) Original Survey plan of the land from the Directorate of Land Survey/City Survey Office. Sub-clause (a) of Regulation 3.2D, reads as under: ''(a) The right of ownership or interest in the land sufficient to enable the applicant to carry out the intended development supported by the following documents (wherever applicable). (i) Original Survey plan of the land from the Directorate of Land Survey/City Survey Office. For plots which are result of approved sub-division, a copy of the approved sub-division plan and/or reference number of the said approval from the Competent Authority including Technical Clearance, (ii) Copy of Index of Land in Form-III/Form-I & XIV of Records of Rights or any forms of City Survey Register, (iii) Copy of Sale/Gift/Lease/Mortgage deed and/or any other instrument or assignment: Provided that the Competent Authority may, if satisfied with other documents submitted, waive the production of any of these documents.'' 18. The description of 'owner' as defined in Regulation 2(95)(a) (i) of the Regulations of 2010, though permits, a person holding, 'sufficient interest' in such land to apply to development Authority for permission, nevertheless, 'holding of sufficient interest' or 'title' in such land is relatable to the title deed or Government or Court order declaring him to be the owner. Expression 'declaring to be the owner' implies declaratory decree and 'Government order' implies, Government grant or sanad. Therefore, the order of Enquiry Officer dated 05.12.1990, not being 'declaration of Court' nor 'sanad' nor 'grant', the respondent no. 4 could not have applied for permission for want of 'sufficient interest' or 'title' in land chalta nos. 16 and 18. Insofar as sub-clauses (1), (2) and (3) of Regulation 2(95) are concerned, these clauses refer to and makes a person eligible to apply for development permission, of 'premises', provided he is entitled to receive rent of the 'premises' let in respect of which development permission is sought and such person includes agent or trustees, who receives such rent or entitled to receive such rent on account of owner. In the case at hand, the respondent no. 4 is claiming a 'sufficient interest' in the land and not in the 'premises'. Sub-clause (1), (2) and (3) sub-clause (ii) of Regulation 2(95) refers to 'premises' and not land. Therefore, Confraria of Chapel-respondent no. 4 was not qualified 'person' to seek development permission in terms of Section 44 of the Act of 1974 read with Regulations of 2010. 4 is claiming a 'sufficient interest' in the land and not in the 'premises'. Sub-clause (1), (2) and (3) sub-clause (ii) of Regulation 2(95) refers to 'premises' and not land. Therefore, Confraria of Chapel-respondent no. 4 was not qualified 'person' to seek development permission in terms of Section 44 of the Act of 1974 read with Regulations of 2010. As a matter of fact, the PDA misdirected itself by relying on the Regulation 3.2D which prescribes documents to be submitted alongwith the Application seeking development permission. One of the documents, is copy of index of land in Form-III/Form-I & Form XIV of record of rights or any form of City of Survey register. Thus, it appears that the PDA inadvertently or otherwise held the property extracts of chalta nos. 16 and 18, were demonstrating 'sufficient interest' of the Confraria of Chapel, in the said lands and thereby committed a mistake in granting the development permission, which is clearly visible from record. 19. In that view of the matter, although, the complaint discloses several disputed facts on record, apparently, development permissions have granted in violation of Regulation 2.95 of 2010. Additionally, the respondent-Authorities have completely overlooked the letter dated 20.05.2003 addressed by Anita Souza to the Member Secretary of the North Goa Planning Development Authority and further failed to appreciate the import of the Regulations governing the procedure for grant of development permission. 20. For all the reasons stated above, we hold, the respondent no. 4-Confraria of Chapel, failed to demonstrate or prima facie, establish its 'sufficient interest' or title in property chalta nos. 16 and 18, for which, the respondent nos. 2 and 3, have granted development permission and therefore, the impugned permissions are quashed and set aside. 21. As a consequence, the Petition is allowed and made absolute in terms of prayer clause (a), which reads as under: ''a) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the Respondent Nos. 2 and 3 to withdraw the impugned approvals and impugned license dated 15.05.2020 issued to the Respondent No. 4 for development in Chalta Nos. 15, 16, 17 and 18 of P.T. Sheet No. 193.'' 22. The Petition is disposed of.