Quashed

M/S. Saldhana Builders Pvt. Ltd. through Its Director Shi. Virtej Veerdhawal Ghag v. Goa Industrial Development Corporation through Its Managing Director and 3 Ors.

Bombay HC7 Oct 2013WP/362/2013

Case brief

AI extract

What is this about?

In a writ petition, the High Court at Goa quashed an order by the Town Planner that kept a No Objection Certificate (NOC) in abeyance. The Court held that the authority cannot reinstate a previously set-aside order and must consider the matter afresh under Section 50 of the Goa Town and Country Planning Act, directing a de novo decision by a specified deadline. The writ rule is made absolute.

What did the court decide?

The impugned order dated 07/01/2013 is quashed and set aside. The matter is remanded to the Town Planner for a de novo consideration by 31/12/2013.

M/S. Saldhana Builders Pvt. Ltd. through Its… — Municipal and Town Planning | Bombay HC (2013)

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WP362/13

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.362/2013

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M/S. SADHANA BUILDERS PVT. LTD., a Company registered under the Indian Companies Act, 1956, with registered office at Dhaval Chhya, Ram Ganesh Gadkari Path, Talavpali, Thane – 400 601, through its Director Shri Virtej Veerdhawal Ghag, aged 23 years, unmarried, business, r/o Dhaval Chhya, Ram Ganesh Gadkari Path,Talavpali, Thane – 400 601, Maharashtra .. Petitioner

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Vs.

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GOA INDUSTRIAL DEVELOPMENT CORPORATION, a Government of Goa undertaking, through its Managing Director, with its Corporate Office at Plot No.13A-2, EDC Complex, Patto Plaza, Panaji, Goa, 403 001

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CORLIM INDUSTRIAL ESTATE INDUSTRIES ASSOCIATION, with its registered Office at GIDC, Corlim Industrial Estate, Corlim, Ilhas, Goa.

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THE CHIEF TOWN PLANNER Town and Country Planning Department, Dempo Towers, Patto Plaza, Panaji, Goa.

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THE TOWN PLANNER, Tiswadi Taluka Office, Panaji, Goa. .. Respondents

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Mr. Nitin Sardessai, Advocate for the petitioner.

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Mr. A. D. Bhobe, Advocate for the respondent no.1.

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Mr. V. Rodrigues, Advocate for the respondent no.2.

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Mr. Manish Salkar, Government Advocate for respondents no.3 and 4.

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CORAM :- R. M. SAVANT, J.

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ORAL JUDGMENT :

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Rule. With the consent of the parties, made returnable forthwith and heard.

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The writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India is invoked against the order dated 07/01/2013 passed by the Chief Town Planner, by which order, the NOC issued by the respondent no.3 is kept in abeyance. It would be apposite to refer to the relevant part of the order, which is clause G, which for the sake of convenience, is reproduced herein under :

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“G. In view of the above, I am constrained to conclude that the said property of M/s. Sadhana Builders Private Ltd. is without access and hence NOC kept in abeyance by Respondent No.3 i.e. Town Planner, Tiswadi Taluka office has to be in force till a proper access is provided by the

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Developer."

The said order dated 07/01/2013 has been passed pursuant to directions issued by a Division Bench of this Court by the order dated 06/02/2012 passed in Writ Petition No.778/2011. The said Writ Petition arose out of the order dated 18/10/2011 passed by the Chief Town Planner by which the NOC issued by the respondent no.3 was kept in abeyance. The said order dated 18/10/2011 was challenged in the said Writ Petition by the petitioner herein inter alia on grounds which were urged in the said petition, however, principally on the ground that the said order was passed in breach of the principles of natural justice as the petitioner was not heard prior to passing of the said order. Though various contentions were raised in the said Writ Petition involving the factual aspects, the Division Bench of this Court did not deem it appropriate to go into the said factual aspects, but on the short ground that the order passed was in violation of the principles of natural justice, set aside the order dated 18/10/2011 and relegated the parties back to the Chief Town Planner for passing a fresh order by giving opportunity to the parties which included the permission to produce the relevant documents in support of their respective assertions. As indicated above, it is pursuant to the said order

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dated 06/02/2012 that the impugned order has been passed. In so far as the said order dated 18/10/2011 is concerned, the cause for passing the same was the fact that a complaint was received from Corlim Industrial Estate Association which Association had informed that the GIDC had revoked the no objection which was issued by it for using the access in question to the petitioner's property. Since the no objection issued by the Chief Town Planner was on the basis of the no objection given by the GIDC, on the GIDC revoking the no objection, the Chief Town Planner had to perforce revoke the NOC granted by the said department.

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Insofar as the challenge in the present petition is concerned, the contentions urged by the learned Counsel for the petitioner revolve around the jurisdiction under Section 50 of the Goa, Daman and Diu Town and Country Planning Act, 1974 and the Rules, 1976 for revoking or modifying the permission granted. It is the submission of Shri Sardessai, the learned Counsel appearing on behalf of the petitioner that the said power under Section 50 cannot be invoked, if the situation as contemplated by the second proviso to the said section arises.

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It is further contended by Shri Sardessai that the Chief Town Planner was directed to consider the matter afresh

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and pass de novo order. However, what has been done by the Chief Town Planner is to virtually reinstate the order dated 18/10/2011 passed by the respondent no.4 which order has been set aside in the earlier Writ Petition.

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Per contra, the learned Counsel appearing on behalf of the respondents sought to justify the impugned order but in the teeth of the submissions as above with not any deal of conviction.

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Having heard the learned Counsel for the parties, in my view, there is merit in the submission of the learned Counsel for the petitioner Shri Sardessai that the Chief Town Planner could not have reinstated the order dated 18/10/2011 which has been set aside by this Court in the matter of keeping the decision of the respondent no.3 in abeyance. In my view, once this Court had set aside the order dated 18/10/2011, the Chief Town Planner was obligated to consider the matter afresh and pass a fresh order. The impugned order is, therefore, unsustainable on the said ground. Insofar as the jurisdiction under Section 50 is concerned, there is no dispute about the fact that the said provision is the only provision under which the decision to revoke or modify the permission granted, can be

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taken. The said provision, as can be seen, lays down the parameters for exercise of the power. The Chief Town Planner, therefore, ought to have kept the said aspect in mind and ought to have adjudicated upon the matter on the said basis. Hence, for the aforesaid reasons, the impugned order dated 07/01/2013 is required to be quashed and set aside and is, accordingly, quashed and set aside and the matter is relegated back to the respondent no.3 for a de novo consideration in terms of the observations made in the earlier order passed by the Division Bench dated 06/02/2012 as also the instant order. The earlier directions of giving proper opportunity to the parties would continue to operate. The Chief Town Planner to hear and decide the matter by 31/12/2013.

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Needless to say that the suit in question which the petitioner has filed, would be tried on its own merits and in accordance with law.

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Rule is, accordingly, made absolute in the aforesaid terms with parties to bear their respective costs.

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SMA

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WP362/13

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M/S. Saldhana Builders Pvt. Ltd. through Its Director Shi. Virtej Veerdhawal Ghag v. Goa Industrial Development Corporation through Its Managing Director and 3 Ors.

Case brief

What is this about?

What did the court decide?

M/S. Saldhana Builders Pvt. Ltd. through Its Director Shi. Virtej Veerdhawal Ghag v. Goa Industrial Development Corporation through Its Managing Director and 3 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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