Disposed

The Fabrica De Igreja De Orlim through Its Attorney Mr. Francisco Rodrigues and 6 Ors., v. State of Goa, through Chief Secretary and Ors.

Bombay HC1 Mar 2012PILWP/13/2011

Case brief

AI extract

What is this about?

This PIL writ petition challenged approvals for construction work in Goa concerning environmental impact, road width, and compliance with Town Planning Act Section 17(A). The court relied on expert reports and affidavits to find no environmental threat, and dismissed grievances regarding road access and previous planning issues sought to be reopened.

What did the court decide?

Disposal of PIL Writ Petition No. 13/2011 and associated Writ Petitions Nos. 465/2011 and 466/2011.

The Fabrica De Igreja De Orlim through Its Attorney Mr… — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA.

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PIL WRIT PETITION NO. 13/2011.

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THE FABRICA DE IGREJA DE ORLIM THROUGH IT ATTORNEY MR. FRANCISCO RODRIGUES AND 6 ORS.

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….... Petitioners.

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VS.

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STATE OF GOA, THROUGH CHIEF SECRETARY AND ORS.

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…..... Respondents.

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Mr. N. Costa Frias, Advocate for the petitioners.

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Mr. M. Salkar, Government Advocate for respondent nos.1, 3,4, 5, 8 and 10.

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Mr. D. Vernekar, Advocate for respondent no.2.

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Mr. Sudesh Usgaonkar, Advocate for respondent nos. 6 and 7.

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Mr. J. Godinho, Advocate for respondent no.9.

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Mr. A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate for the respondent no.11.

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CORAM: S. C. DHARMADHIKARI & U. V. BAKRE, JJ.

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DATE: 1^st March, 2012

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ORAL ORDER

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The order passed in PILWP would dispose of other Writ Petition Nos. 465/2011 and 466/2011 as well.

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The petitioners are challenging the Approval and permissions, which have been granted for the construction work which is being carried out on a property bearing survey no. 87/14C of village Orlim Salcete Goa.

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The petitioners claim to be residents of Orlim Salcete. The first petitioner claims to be administrative body for the temporal goods of the Church erected according to the rules of Canon Law. It is stated that petitioner no. 7 is an association of persons formed with the purpose of safeguarding environment and ecology of village Orlim from unplanned and illegal constructions and developments.

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The petitioners have raised several issues arising out of construction activities and after the earlier orders passed in this Writ Petition, which was converted as PIL, the surviving issues are in

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relation to filling up of low lying area, access road and preservation of traditional access.

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Upon an order passed by this Court on 22.11.2011 the Ground Water Officer (South), Water Resources Department, Government of Goa was directed to inspect the site and submit report as to what effect the pile foundation laid down by respondent nos. 6 and 7 will have on the environment and ecology and particularly ground water situation.

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Report of N. H. Rangaraju, designated as Ground Water Officer has been placed on record by Mr. M. Salkar, learned Government Advocate. We have perused the report with the assistance of learned Counsel appearing for the parties and what it indicate is that although a multi storey building is under construction, only some of the buildings are having pile foundations. The pile foundation for the construction of the multi storey building by respondent nos. 6 and 7 and now by respondent no. 11 is not affecting the movement of surface water and ground water nor there is any impact of the

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construction by pile foundation on environment and ecology in surrounding areas or the topographical and geological set up of the area. After this report is perused by us, we have no reason to doubt the conclusion of an expert who has inspected the site and whose authority to submit such a report is not in dispute. Even when this authority inspected the property it is not alleged that it has any interest in the immovable property or in the construction activities thereon. He has submitted the report pursuant to the orders and direction of this Court.

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In such circumstances, we do not wish to keep open the issue as to whether the pile foundation for the construction at site either contaminates the ground water or affects its movement in relation to environment and ecology. However, Mr. Costa Frias, learned Counsel appearing for the petitioners submits that there are still two other issues, which would survive for consideration of this Court. Referring to the report of the Chief Town Planner dated 10.6.2011, it is contended by him that the issue of 6 metres width road has not been addressed and till date without any such provision the construction

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activity is being carried on. On this point, our attention is invited by Shri Nadkarni, learned Senior Counsel appearing for respondent no.11 to an affidavit, which has been filed and which affidavit is stated to be an additional affidavit of one Mr. Anand Ashok Batra, Constituted attorney of respondent no.11. The said constituted attorney has on oath stated that as far as 6 mts road as proposed in R.P., is concerned, what has been raised is an issue which is now covered by an order of this Court upholding an award acquiring the land for the purpose of said road, which was subject matter of the challenge, in a Writ Petition being Writ Petition No. 411/2011.

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By an order dated 27.2.2012 we have dismissed the petition challenging the said award. Therefore, when the possession of the acquired land has been taken for the purpose of making said road and with necessary width, then, this issue will not survive. In any event, respondent no.11 has stated that additional road during the development from North side of the property has been provided and which causes no inconvenience to any villagers residing in the vicinity. It is not as if there is no proper access to the property.

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Therefore, this affidavit according to respondent no.11 falsifies this grievance.

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This affidavit has been perused by us with the assistance of the learned counsel appearing for the parties. After perusing the same what we find is that when the Town planner made his report on 10.6.2011, he ought to have been aware of the fact that government has taken possession of the land, which was acquired for the purpose of road. That possession was taken on 25.5.2011. If possession was taken and the land vests in Government, there is no reason for the Town Planner to up hold the contentions of the petitioners. The 6 metres road would be provided for use of public. In these circumstances and having perused this affidavit and annexures thereto, we are satisfied that even this grievance does not survive.

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The other grievance, which is raised is with regard to applicability of Section 17(A) of the Goa Daman and Diu Town and Country Planning Act 1974 It is contended by Mr. Costa Frias that the said provision is attracted and attention of the planning department

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was invited thereto because of filling of low lying land (Rice) in this Case. He states that even after earlier petitions and orders made thereon, this issue survives. On the other hand, it is contended that the Town Planner could not have reopened the issue which was concluded by an order of this Court and particularly when the petitioners in public interest raised the very grievance which was raised in their earlier round of litigation. Our attention has been invited to a Writ Petition, which was filed in this Court which Writ petition was disposed of after hearing all parties. Copy of the order dated 16.3.2011 (Writ Petition No. 34/2011) would indicate that the said Writ Petition was filed by respondent no. 6 to this Writ Petition challenging the order dated 14.7.2010. That order held that development undertaken is in low lying land therefore necessary NOC under Section 17(A) of Goa Town and Country Planning Act, 1974 has to be obtained.

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At that time this Court noted that the Writ Petition was

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not the first round of litigation. A Writ Petition was filed in this Court by some aggrieved parties raising the matter of applicability of

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Section 17(A) of the Act. Our attention was invited to Writ Petition No. 392/2010. Perusal of the entire order would indicate that this Court has accepted the clarification of respondent no.6 that they were carrying on construction activities on their own land. They were laying foundation by excavating the land, which is not stated to be and proved to be low lying land and the mud collected has been removed from the site. Once we have passed such an order and that order having gained finality, we find that there is substance in the submission of learned counsel appearing for respondent no.11 that town planner could not have reopened the very same issue. We have no doubt in our mind that the town planner and even the petitioners in this Writ petition are seeking to reopen the issue again and again. It is urged that this is not an issue raised by the petitioners but villagers. However, a second or third Writ Petition allegedly espousing a public cause, cannot be entertained merely because another villager or resident seeks to approach this Court.

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What we find from the activities that were undertaken

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when the construction was carried on was to excavate the land so as

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to put foundation work. That has been inspected, certified and

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beyond that nothing else was done. Now, even the construction activities have commenced and that is going on a levelled land. The Plan annexed to the affidavit filed by respondent nos. 6 and 11 in this Writ Petition would indicate that construction proposed of ground floor has already been completed. In such circumstances, even this issue would not survive and the town planner's report need not be gone into once it is found to be vitiated by total non application of mind and in ignorance of the order and concluded matters by this Court. The final attempt is to show that there was traditional access and that remains as it is and it should be undisturbed and uninterrupted and even on that count there are disputed questions of fact, which are raised. The affidavit filed by authority as also by the owner and developer indicates that the said access is not in any manner disturbed or interfered with even after on going construction activities or its completion. We have no doubt in our mind that traditional access would be maintained at site and there would not be any obstruction or hindrance for the people using the same. We have no doubt in our mind that the authority while issuing licences and

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certificates will ensure that the traditional access is maintained.

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Equally, the persons who have undertaken the construction activities must also ensure that when the building or the units are occupied, the said access is not in any manner obstructed or interfered with.

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We are not impressed by the submission of Mr. Costa Frias that there was no issue of access when earlier petition was filed and it was not disclosed that property has any direct access. Now, the matter of access is clarified and stands concluded. If the plan was to be revised only to prove or maintain the access, that aspect is taken care of by the statements made and directions issued by us.

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Respondent no. 6 has created 3^rd party right in favour of respondent no. 11 and suppression of the fact that could be no reason or a cause to approach this Court. The property may change hands but what the Court is really concerned on account of construction activities is if there is any imbalance in the ecological set and whether

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the permissions and approvals are in accordance with law. It is immaterial as to who is claiming interest in the lane or construction at site.

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In the light of these observations the PIL and other Writ Petitions stand disposed off.

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Our orders should not be construed as holding that entire construction work at site is complete. If the plan is for multi storey unit buildings and if only one or two have been completed and balance construction work is still in progress, it has not been demonstrated as to how the balance construction work amounts to interference with the environment and ecology or the traditional access of the villagers. In such circumstances that also would not make any difference so long as the construction activities have been carried out in accordance with the sanction and approval plans and permission/licence.

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In the light of the orders passed on the PIL, what we

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observe from the report dated 10.6.2011, is that the issues raised by

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the town planner would not survive and it is not required to be formally set aside or quashed as prayed.

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S. C. DHARMADHIKARI, J.

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U. V. BAKRE, J.

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vn*

The Fabrica De Igreja De Orlim through Its Attorney Mr. Francisco Rodrigues and 6 Ors., v. State of Goa, through Chief Secretary and Ors.

Case brief

What is this about?

What did the court decide?

The Fabrica De Igreja De Orlim through Its Attorney Mr. Francisco Rodrigues and 6 Ors., v. State of Goa, through Chief Secretary and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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