Dismissed

Mrs. Maria Helena Dias v. State of Goa through Its Chief Secretary and 2 Ors.

Bombay HC6 Nov 2012WP/388/2012

Case brief

AI extract

What is this about?

Petitioner challenged the one-year validity of a construction licence under section 262 of the City of Panaji Corporation Act, arguing implied repeal by Regulation 3.9 of the 2010 Land Development Regulations. The court held no inconsistency existed as the Acts serve different purposes.

What did the court decide?

Petition dismissed. Declaration and writ of mandamus sought by petitioner not granted.

Mrs. Maria Helena Dias Vs State of Goa through Its Chief Secretary and 2 Ors. — Bombay HC (2012) — LawSathi Research

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W P NO. 388 - 2012

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 388 OF 2012

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Mrs. Maria Helena Dias, w/o Romano Dias, 73 years of age, c/o Hotel Solmar, Miramar, Panaji Goa. …. Petitioner

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Versus

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State of Goa, Through its Chief Secretary having its office at Porvorim, Bardez Goa

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The Director, Municipal Administration, Collectorate Building, Ground Floor, Panjim Goa.

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The Corporation of City of Panaji, Through its Commissioner, Municipal Building, Panjim, Tiswadi Goa. … Respondents

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Mr. J. Godinho, Advocate for the petitioner.

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Mr. A. N. S. Nadkarni, Advocate General with Mr. K. Noorani, Additional Government Advocate for respondent nos. 1 and 2.

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Mr. A. F. Diniz, Advocate for respondent no.3.

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CORAM : S. J. VAZIFDAR &

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U. V. BAKRE,JJ.

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RESERVED ON : 4 th OCTOBER, 2012.

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PRONOUNCED ON : 6th NOVEMBER, 2012.

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O R D E R ( Per S. J. VAZIFDAR, J)

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Respondent nos. 2 and 3 are the Director of Municipal Administration, Panaji Goa and the Corporation of City of Panaji respectively.

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The petitioner seeks a declaration that section 262 of the City of Panaji Corporation Act, 2002, is repealed or impliedly repealed by Regulation 3.9 of the Goa Land Development and Building Construction Regulations, 2010 to that extent and ought to read to the effect that every sanction for the erection or re-erection of any building shall remain in force for three years from the date of such sanction

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and not merely for one year as provided therein. The petitioner has also sought a writ of mandamus directing respondent no.3 to consider the initial period of the licence granted by it on 15.03.2012 to be three years and not one year as stipulated therein. By an amendment, the petitioner

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has sought a declaration that section 262 of the City of Panaji Corporation Act, in so far as it restricts the initial period of the construction licence to one year is ultra vires Articles 14, 19.1(4) and 300(A) of the Constitution of India and a declaration that section 262 and related provisions of the City of Panaji Corporation Act, 2002 restricting the initial period of a construction licence to one year are deemed repealed by the provisions of the Goa ( Regulation of Land Development and Building Construction ) Act, 2008 and Goa Land Development and Building Construction Regulations, 2010.

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The petitioner owns a plot of land in Panaji. On 26.09.2011 she made an application under section 44 of the Goa Town and Country Planning Act, 1974 for the construction of a building for a hotel thereon. By an order dated 13.02.2012, the North Goa Planning and Development Authority granted the permission to carry out the said development on the terms and conditions mentioned therein. The permission was stated to be valid for three years from the date of issue of the construction licence provided the construction licence was issued within the period of three years.

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Respondent no.2 – Corporation of the City of Panaji on 13.03.2012 granted the petitioner a construction licence for the proposed construction of the hotel building on various terms and conditions. The licence is stated to be valid for a period of one year from the date of issue thereof. The petitioner's grievance is that whereas the construction permission dated 13.02.2012 issued by the Town and Country Department is valid for a period of three years, the construction licence granted by respondent no.3 is valid for a period of only one year.

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The learned Counsel appearing on behalf of the parties relied upon the following provisions of law :

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(A) Sections 44(1), 44(4), and 46 of the Goa

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Town and Country Planning Act, 1974 read as under :

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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 and

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containing such particulars and

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accompanied by such documents and plans as may be prescribed.

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(4) The Planning and Development Authority in dealing with the applications for permission under this section shall have regard to –

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(i) the provisions of any Development Plan which has come into operation;

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(ii) the proposals or provisions which it thinks are likely to be made in any Development Plan under preparation, or to be prepared;

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(iii) to the relevant bye-laws or regulations

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of the local authority concerned; and

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(iv) any other material consideration.

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46. Validity of permission.- Every

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permission granted under this Act shall remain in force for a period of three years from the date of such permission:

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Provided that the Planning and

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Development Authority may, on application made in this behalf before the expiry of the

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said period, extend such period, by such

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period or periods as it may think proper; so, however, that the total period extended shall in no case exceed three years:

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Provided further that the lapse

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of any such permission shall not bar any subsequent application for fresh permission under this Act.”

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(B) Sections 3, 4(1), 4(3), (7) and 8 of the Goa

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(Regulation of Land Development and Building Construction ) Act, 2008 read as under :

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“ 3. Land development and building

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construction .- (1) All land development and

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building construction in the State shall, subject to the provisions of section 9, be in accordance with the provisions of this Act and the rules and regulations made under the provisions of this Act.

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(2) Any law in force in the State governing land development and building construction,

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in so far as it is inconsistent with the

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provisions of this Act or the rules and regulations made under the provisions of this Act, shall stand repealed.

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Explanation .- In this section, unless the context otherwise requires, “law” includes any Ordinance, Orders, bye-laws, rules, regulations or notifications.

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4. Power to make regulations and rules .-

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(1) The Government may, by notification in the Official Gazette, frame regulations not inconsistent with the provisions of this Act, for carrying out the provisions of this Act by following the procedure specified in sections 5, 6 and 7.

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(2).........................................

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(3) The Government may by notification in the Official Gazette, frame rules for carrying out the provisions of this Act.

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7 . Regulations .- The Government shall, after receiving the report and recommendations of the Steering Committee, and after making such modifications as the

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Government considers necessary, direct the Chief Town Planner to notify the regulations.

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8 . Notification and effect. -On and from the date of the coming into force of the regulations framed under section 7, any land development and building construction in the State shall be in accordance with the provisions of such regulations.”

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(C) Regulations 2(1), 2(36), 2(46), 2(86), 3.1, 3.2, 3.2(A), 3.7(a) and 3.9 of the Goa Land Development and Building Construction Regulations, 2010.

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“2(1) “Act” means the relevant Act as amended from time to time;

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2(36)”Competent Authority” means a City Corporation or Municipal Council or Village Panchayat competent to grant building licence under their Acts or Planning and Development Authorities or Town and Country Planning department competent to issue Development Permission/Technical Clearance as the case may be or any other

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authority notified by Government from time to time;

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2(46)”Corporation” means a corporation constituted or deemed to be constituted under the relevant Act;

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2.86) “Municipal Area/Corporation Area” means any area declared as Municipal Area/Corporation areas under the

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Municipalities Act/Corporation Act;

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3 . Procedure and Requirements for Securing Development Permission, subdivision Permission Lower, Building Permission & Completion Certificate/Occupancy Certificate. -

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3.1. Development to be in conformity with relevant Acts, Rules and Regulations there under.- Every development shall conform to

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the provisions of relevant Acts, Rules and Regulations and appropriate Plan in force and no development shall be carried out without obtaining prior permission in the

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manner prescribed under these Regulations, from the Competent Authority.

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3.2. …............

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3.2A. Application .- An application in the format prescribed under the provisions of these Regulations.

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APPENDIX A1-PDA – to PDA for Development Permission.

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APPENDIX A1-TCP – to Town Planning Department for Technical Clearance.

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APPENDIX A2 – to Municipal Council for Building License/Permit.

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APPENDIX A3- to Village Panchayat for Building License/Permit.

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3.7. Grant or Refusal of permission/licence .-

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(a) Grant or refusal of the

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permission/licence shall be governed by the relevant Acts, Rules and Regulations in force.

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3.9. Duration of Sanction, Notification stages and Occupancy Certificate. -(a) Permission for Development/Building permit

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granted under these Regulations shall, subject to the provisions of the Act, be valid initially for a period of three years, and renewable, on submission of a request letter, for a further period of three years at a time.

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(b) Where the development

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permission/building permit is sought to be transferred ( alongwith the property ), the owner of such property should intimate to the Competent Authority in writing and obtain confirmation to that effect for the purposes of the Act.

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(c) The applicant shall inform the Council/Village Panchayat in prescribed form APPENDIX-D1, about the commencement of the work for giving alignment of the building.”

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(D) Section 262 of the City of Panaji Corporation Act, 2002 reads as under :

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“ 262 . Lapse of sanction after one year

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from the date of suc h sanction .- Every sanction for the erection or re-erection of any building shall remain in force for one year only from the date of such sanction or for such longer period as the Commissioner may have allowed when conveying sanction under section 256. If the erection or re-erection of the building is not commenced within one year and not completed within two years or such longer period as may have been allowed by the Commissioner the sanction shall be deemed to have been lapsed; but such lapse shall not bar any subsequent application for fresh sanction under forgoing provisions of this Act.”

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Mr. Godinho, submitted that section 262 of the City of Panaji Corporation Act, 2002 ( hereinafter referred to as “the Corporation Act” ) is inconsistent with Regulation 3.9 of the Goa Land Development and Building Construction

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Regulations, 2010 ( hereinafter referred to as “the 2010 Regulations” ). He further submitted that Regulation 3.9 overrides the provisions of the Corporation Act. Accordingly, he submitted that the petitioner is entitled for a period of three years to complete the construction.

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As rightly submitted by the learned Advocate General, the submission is inconsistent with Regulation 3.9 itself. Regulation 3.9 provides that the permission granted thereunder shall be subject to the provisions of “the Act” and not “this Act”. The words “the Act” relate to the relevant enactments relating to the development/building activities. If the ambit of Regulation 3.9 was limited only to the Goa (Regulation of Land Development and Building Construction ) Act, 2008 ( hereinafter referred to as “the Development Act of 2008”), Regulation 3.9 would have used the words “this Act” and not “the Act”.

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This construction of Regulation 3.9 is supported by Regulation 2(1) which defines the term “Act” to mean the “relevant Act” as amended from time to time. The words “the relevant Act” are not limited to the Development

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Act of 2008. This in turn is clear from the Regulation 2(46) which defines “Corporation” to mean a Corporation constituted or deemed to be constituted under “the relevant Act”. The Corporation is not constituted under the Development Act of 2008.

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That the word 'Act” in Regulation 2.1 does not refer only to the Development Act of 2008 is further clear from the Regulation 3. Regulation 3.1 provides that development shall be in conformity with the provisions of “the relevant Acts, Rules and Regulations”. In other words, far from overriding the provisions of the other relevant Acts, Rules and Regulations, Regulation 3.9 in fact mandates the adherence thereto.

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Regulation 3.2A also militates against Mr. Godinho's submission. In order to obtain permission under the Development Act of 2008 and the Development Regulations of 2010, the applicant is required by Regulation 3.2 read with 3.2A to submit the application/permission from

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the other authorities under the other Acts including the Municipal Council for building licence/permit. The regulation

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therefore indeed requires the applicant to comply with the provisions of all other laws as well. Regulation 3.7 makes this clearer by stipulating that the grant or refusal of permission/licence shall be governed by “the relevant Acts, Rules and Regulations in force”. It does not provide for the grant or refusal of permission/licence to be governed by the Development Act of 2008.

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As rightly submitted by the learned Advocate General the various enactments operate for different purposes. The development permission is granted under the Development Act and the construction licence is granted under the Corporation Act. The North Goa Planning and Development Authority is constituted under section 44 of the Town and Country Planning Act. The apparent overlapping occurs on account of the fact that the enactments of necessity refer to the construction being carried out. That however ought not to be confused with the essential purposes of the different enactments. The permissions are indeed granted under the Acts but each with a different perspective, purpose and aim. The Regulations of 2010 do not purport to govern the grant of construction licences

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exclusively. If it were so Regulation 3.2A would not have required the applicants to submit the application/permission from the Municipal Council for building licence/permit.

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Section 46 of the Town and Country Planning Act expressly states that the permission granted under “this Act” shall remain in force for a period of three years. Thus, the validity of the permission for a period of three years is only in respect of the permission granted under “this Act” i.e. the Town and Country Planning Act. The permission granted under the Town and Country Planning Act has nothing to do with the permission granted under the other Acts as far the period of the validity of the permission is concerned. Section 46 of the Town and Country Planning Act does not stipulate the validity of any licences or permissions granted under the other Acts. The Planning and Development Authority under section 44 functions for a different purpose.

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There is no inconsistency between section 262 of the Corporation Act and Regulation 3.9 of the Development Regulation of 2008. As we mentioned earlier, the purpose of these enactments are different. The Legislature is entitled to

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stipulate different conditions in respect of the permissions granted under the respective enactments. The applicant must comply with the conditions under both the enactments.

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