Allowed

Shri. Gangaram Balchandra Bandodkar v. the Chief Town Planner Town and Country Planning Department and 5 Ors.

Bombay HC4 Oct 2012WP/142/2008

Case brief

AI extract

What is this about?

Petitioner sought writ of mandamus to stop allegedly illegal construction and hill cutting by Respondent No. 6. Court observed that while permissions were obtained after the interim stay, the legality of said permissions was not the subject of this petition. Petition allowed.

What did the court decide?

Rule discharged. Interim orders vacated. Petitioner liberty to adopt proceedings regarding validity of permissions.

Shri. Gangaram Balchandra Bandodkar Vs… — Constitutional and Fundamental Rights | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 142 OF 2008.

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Shri Gangaram Balchandra Bandodkar, Saidham Cooperative Housing Society, L.N.S. 139, Alto Porvorim, Near Journalist Colony, Porvorim, Bardez Goa.

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…... Petitioner

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V e r s u s

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The Chief Town Planner,

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Town & Country Planning Department, Government of Goa, Dempo Towers, Patto Plaza, Panaji Goa.

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The Collector, North Goa District, State of Goa,

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Collectorate Building, Panaji Goa.

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The Goa Coastal Zone Management Authority, through the Member Secretary, Saligao, Bardez Goa.

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State of Goa, through the Chief Secretary, Secretariat, Porvorim Goa.

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The Tree Officer, Deputy Conservator of Forests, Ponda Goa.

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Shri Pradeep Kamat,

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H. No.54, Donde Bhat, Neura Ilhas Goa.

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….. Respondents

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Mr. D. Pangam, Advocate for the petitioner.

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Mr. A. N. S. Nadkarni, Advocate General with Mr. K. Noorani, Addl. Government Advocate for respondent Nos.1 to 5

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Mr. J. E. Coelho Pereira, Senior Advocate with Mr. S. Karpe, Advocate for respondent No.6.

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CORAM :- S.J. VAZIFDAR &

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U.V. BAKRE, JJ.

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Judgment reserved on : 28^th September, 2012 Judgment pronounced on : 4^th October, 2012

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J U D G M E N T : (PER S.J. VAZIFDAR, J.)

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The petitioner seeks a writ of mandamus directing respondent Nos.1 to 5 to initiate action against the allegedly illegal construction/hill cutting activity carried out by respondent No. 6 and a direction commanding respondent No. 6 to forthwith stop all activities including development, felling of trees, levelling of land, carrying out any construction activity etc. in the property at survey No. 216/1.

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Respondents Nos. 2 to 6 are the Collector, North Goa, the Goa Coastal Zone Management Authority, the State of Goa, the Tree Officer, Deputy Conservator of Forests and one Pradeep Kamat respectively.

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By an order dated 26^th June 2008, this Court recorded a statement made on behalf of respondents No. 6 that he had applied for conversion of the land in question and that the application was

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pending. An undertaking was given on behalf of respondent No. 6 that he would not carry out any construction activity without seeking permission from this Court after all the permissions are obtained. Respondent No. 1 was directed to reinvestigate whether, in fact, there was hill cutting or not and to take appropriate action in accordance with law.

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By an order dated 21^st August, 2008 the Court observed that the order dated 26^th June, 2008 had not been strictly complied with and directed the authorities to do so.

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By an order dated 8^th September, 2008 Rule was issued. The court observed, prima facie, that the petition raises an issue of violation of the laws pertaining to conversion of land and Coastal Regulation Zone notifications. In view of the statements made on behalf of respondent No. 6 on 26^th June, 2008, the Court directed respondent No. 6 not to carry out any construction activity at site. The Court, however, clarified that this did not prevent respondent No. 6 from seeking permission from the appropriate authorities and that the appropriate authorities should not be precluded from exercising the powers in accordance with

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law pursuant to receipt of such applications merely because the statement was recorded. It was further directed that till such clearances,

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permissions and licenses were obtained there would be no construction activity at site. It is important, however, to note that it was further ordered that respond No. 6 would have liberty to apply for modification of the order in case permissions were obtained.

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Contending that permissions had subsequently been obtained, respond No. 6 took out Miscellaneous Civil Application No. 620 of 2012 for a modification of the interim orders by permitting him to go on with the construction activities of setting up a dry dock in the property bearing Survey No. 216/1-E in terms of the permissions granted by the competent authorities. As this would involve a consideration of the Writ Petition itself, by an order dated 24th September 2012, we put the parties to notice that on the next date we may proceed to decide the Writ Petition itself. We, accordingly, proceed to decide the Writ Petition, finally.

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It is necessary at this stage to set out the subsequent facts on which respond No. 6 relies.

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(A) Respondent No.6 had purchased Survey No.217/0 admeasuring 8909 sq. metres by a sale deed dated 5^th January, 1983.

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By sale deeds dated 17^th November, 2003 and 18^th October, 2004, respondent No.6 purchased parts of the property bearing Survey No. 216/1, admeasuring 22,898 sq. metres and 6402 sq. metres respectively, aggregating to 29,300 sq. metres.

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(B) Respondent No.7 made an application on 8^th September, 2008 to the Ministry of Environment and Forests (MOEF) to set up a dry dock. The MOEF, by a letter dated 9^th January, 2009, ( i.e. after the said interim orders in this petition) granted respondent no.6 the permission to do so. The relevant portion thereof reads as under :

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“ Sub: Construction of dry dock in Survey No.216/1 and 217 for repair and construction of fishing boats, barges (cargo boat) pantoons etc., as expansion to existing repair facilities at Village Piligao, Bicholim Taluka, Goa by M/s. Praka Engineering – regarding.

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Reference is invited to letter No.GCZMA/N/398/469, dated 21.12.2004 from Department of Science, Techonology and Environment, Government of Goa, Environment Department and letter No.PE/09/Misc., dated 29.9.2008, No.PE/13/Misc., dated 3.11.2008 and No.VPP/NOC/2003-2004/36, dated 13.4.2003 and No.VPP/Const./Lic/07-08/61, Dated 30.4.2007 from Village Panchayat Piligao, Goa and No.1101/PrakaDock/721, dated 7.4.2004 from Ports Department , Goa on the subject mentioned above. No Objection Certificate from the Goa State Pollution Control Board vide Order No.5/3813/08-PCB/1493, Dated

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29.5.2008 has also been obtained. The order of the Hon'ble High Court of Bombay at Goa in Writ Petition No.142 of 2008 was considered, in which the above proponent is listed as Respondent. No.6.

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The proposal involves construction of a dry dock at Piligao Bicholim on bank of River Mandavi for repair and construction of fishing boats, barges (cargo boat) pantoons etc., as expansion to existing repair facilities. The said project has 40,000 sq. m. of area and located at Survey No.217 and 216/1. The estimated cost of the project is around Rs.45 lakhs.

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The proposal comes under purview of Coastal Regulation Zone Notification, 1991 and was considered by Expert Committee on its meeting held on 19^th and 20^th December, 2008 and has recommended. Accordingly, clearance under the Coastal Regulation Zone Notification, 1991 is hereby accorded to the above project subject to strict implementation of the following conditions :-”

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6(A) By an order dated 11^th August, 2010, the Collector, Panaji granted permission/conversion sanad to respondent No.6 to use the land forming part of Survey No.217/0 for construction of a dry dock. It must be noted that at this stage, an application for conversion of survey No.216/1 was pending before the competent authority. The permission from the MOEF dated 9^th January, 2009 though in respect of survey No.216/1 and 217/0 could be availed of with respect to plot No.216 only upon the conversion sanad being granted to respondent No.6.

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(B) As all permissions had been obtained with respect to Survey No.217, the respondent No.6 filed Misc. Civil Application No.255 of 2011 for permission to carry out construction activity only on survey No.217. Strictly speaking, it was not necessary for respondent No.6 to seek permission for the same, as the writ petition

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does not concern survey No.217. Respondent No.6, however, with a view not to leave any room for doubt or grievance and out of abundant caution, made this application. The Division Bench, by an order dated 22^nd August, 2011, allowed Misc. Civil Application No.255/2011 by clarifying that the order dated 8^th September, 2008 did not prevent respondent No.6 from carrying on construction in Survey No.217, in accordance with law.

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It would be convenient, at this stage, to note one of the contentions of Mr. Pangam, learned Counsel appearing on behalf of the petitioner, that respondent No.6 had agreed in the affidavit in support of Misc. Civil Application No.255/2011 not to carry out any construction work on survey No.216, pending the hearing and final disposal of the writ petition. This contention was, however, relevant only in so far as Misc. Civil Application No.620/2012 is concerned. This statement is not relevant today, as we are disposing of the writ petition itself. In any

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event, the submission would not be acceptable even if we were to hear only Misc. Civil Application No.620/2012. When Misc. Civil Application No.255/2011 was filed and even when it was heard, respondent No.6 had not obtained all the permissions - it had not obtained the conversion sanad in respect of Survey no.216. The same was obtained only on 28^th March, 2012. He could not, therefore, have sought the same interim reliefs in respect of survey no.216/1 till then. The mere fact that a statement was made in the affidavit in support of Misc. Civil Application No.255/2011 that no construction would be carried on in Survey No.216 pending the hearing of the writ petition cannot prejudice respondent No.6 after he had obtained all the permissions.

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8(A) Respondent No.6 had applied for partition/sub-division of Survey No.216/1. By an order dated 9^th November, 2011, the Court of Deputy Collector and S.D.O. ordered partition of survey No.216/1 and the portion purchased by respondent No.6 was allotted Survey No.216/1-E.

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(B) As stated earlier, respondent No.6 obtained a conversion sanad in respect of survey No.216/1-E on 28^th March, 2012.

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The permission from the GCZMA was granted by a letter dated 24^th May, 2012 which was produced in the Court by Mr. Coelho Pereira, learned Senior Counsel appearing on behalf of respondent No.6. The same is taken on record and marked “X” for identification. The validity of the permission is not the subject-matter of this writ petition.

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Accordingly, respondent No.6 now has all the necessary permissions as is indeed endorsed on the plan, including the permission from the GCZMA, MOEF, Goa State Pollution Control Board, Captain of Ports, PWD, Town and Country Planning Department and from the concerned Village Panchayat.

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When the interim order dated 8^th September, 2008 was passed, the conversion sanad and the permissions from the GCZMA and MOEF had not been obtained. The same were obtained on 28^th March, 2012, 24^th May, 2012 and 9^th January, 2011 respectively.

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Mr. Pangam submitted that the aforesaid permissions had not been granted in accordance with law and were illegal. The reliefs sought in this petition have already been referred to above. Some of the

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permissions were obtained after the petition was filed. The main grievance in the petition was that the work was being carried on without the requisite permissions from the authorities. For instance, in paragraph 5, it is alleged that the hill-cutting operations were carried out without permission from the Chief Town Planner. In paragraph 7, it was alleged that the construction was being carried out within 100 metres from the banks of the river Mandovi contrary to CRZ Notifications. In paragraph 8, it is alleged that the land had been put to non-agricultural use contrary to the provisions of the Goa Land Revenue Code. In paragraph 9, and it is alleged that the trees were being illegally felled on the plot.

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However, now the requisite permissions have been received. The learned Advocate General admitted that respondent No.6 has received all the permissions, entitling him to carry on the said work. If the petitioner has any grievance regarding the validity and legality of the permissions, he must adopt appropriate proceedings in respect thereof. We do not express any opinion regarding the validity and legality of the permissions. The rights and contentions of the

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parties in that regard are kept open.

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Mr. Pangam submitted that the permission dated 9^th

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January, 2009 was granted by the MOEF on the basis that the plot admeasured 40,000 sq. metres, as is evident from paragraph 2 thereof. The present plot, however, admeasures 38,229 sq. metres. He submitted, therefore, that respondent No.6 ought to obtain fresh permissions from the MOEF. We are not inclined to allow the petition merely on this ground. At least, prima faice, there is nothing to indicate that the permissions would not operate in view of the land now available being marginally less than the area stipulated in the permissions. It is open to the petitioner to approach the MOEF and seek a clarification in this regard and, thereafter, if necessary, to adopt appropriate proceedings in regard thereto. It is for the MOEF to decide this issue.

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Mr. Pangam submitted that the permission dated 9^th January, 2009 was also granted by the MOEF on the basis that the entire 40,000 sq. metres' of land would be converted to non-agricultural purposes whereas, in fact, respondent No.6 obtained the conversion sanad only in respect of 3150 sq. metres from out of survey No.216/1-E. We would have thought that the cause of protecting the environment would be better served by the entire area not being

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converted from agricultural to non-agricultural purposes. Mr. Pangam, however, submits that irrespective of the same, the permission, therefore, cannot be held to be valid for it was granted on the basis that the entire 40,000 sq. metres would be converted to non-agricultural user. He submitted that it is essential for respondent no.6 to obtain conversion of the entire plot 216/1 for non-agricultural purposes. He submitted that had the MOEF noted that the entire 40,000 sq. metres was not to be converted to non-agricultural use, it may not have granted the permission dated 9^th January, 2009.

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We are not inclined to allow the writ petition even on the basis of this argument. In this respect too, the petitioner is at liberty to seek a clarification from the MOEF and if necessary, to adopt further proceedings in respect thereof.

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Lastly, Mr. Pangam submitted that all the permissions are now deemed to be void and to have lapsed in view of the CRZ Notification of 2011. As we mentioned earlier, the question of validity or legality of the permissions is not the subject-matter of this writ petition. It will be open to the petitioner to adopt appropriate proceedings in that regard.

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The petition is, accordingly, disposed of by the following

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order :

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(A) The Rule stands discharged. The interim orders are

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vacated.

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(B) The petitioner is at liberty to adopt appropriate proceedings in respect of his contentions regarding the validity and legality of the permissions granted in favour of respondent No.6. The rights and contentions of the parties in that regard are kept open.

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(D) No order as to costs.

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ssm.

Shri. Gangaram Balchandra Bandodkar v. the Chief Town Planner Town and Country Planning Department and 5 Ors.

Case brief

What is this about?

What did the court decide?

Shri. Gangaram Balchandra Bandodkar v. the Chief Town Planner Town and Country Planning Department and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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