Smt. R.P. Sondurbaldota, J.@mdashConsidering the nature of the controversy raised in the petition and the reliefs sought therein, the parties agree for final disposal of the petition at the stage of admission. Rule is accordingly made returnable forthwith. Respondent Nos. 1 and 3 have filed their affidavits-in-reply. Heard the Learned Counsel for the Petitioner and the Learned Counsel for the Respondents.
2. The Petitioner is the owner of the land at survey No. 14/1-A situate at Village Dabolim which falls within the territorial jurisdiction of Respondent No. 1/Panchayat. He was granted Conversion Sanad u/s 32 of the Land Revenue Code with permission to use an area of 407 sq. meters out of the property for residential use. His application filed before Respondent No. 1 for construction licence was referred to the office of the Associate Town Planner by Respondent No. 1 and the Associate Town Planner by his letter dated 18-4-2005 gave no objection for the proposed construction of residential building subject to certain conditions contained therein after survey of the property and approval of the building construction plans by the Town and Country Planning Department, Mormugao. The Health Authorities also gave their no objection to the construction from the sanitary point of view. The Petitioner completed the construction in accordance with the plans sanctioned. Respondent No. 2 issued completion certificate dated 4th December, 2009 and directed the Petitioner to pay infra-structure tax. Then the Petitioner vide his application dated 14th December, 2009 applied for occupancy certificate to Respondent No. 1. That application was rejected by Respondent No. 1 and occupancy certificate refused to the Petitioner vide its resolution dated 1st September, 2010. The two reasons stated in the resolution for refusal read as follows:
(a) All the permissions/Licenses secured by the said Silveira are for the purpose of construction of residential building while the said Silveira has constructed shops which are clearly for commercial purposes. The conversion sanad relied on also confirms that use of the land shall be for residential use only.
(b) According to the approved plans the set back shown is 40 mts. From the centre of the existing road i.e. NH 17 A while the building is constructed by Mr. Silveira within 31 mts from the centre of the existing road i.e. NH 17 A.
3. Therefore, the Petitioner filed the present petition for a writ of certiorari for quashing of the resolution of Respondent No. 1 and a writ of mandamus to direct it to grant completion certificate to the Petitioner.
4. The challenge in the petition is based on four grounds. Firstly, that construction of the Petitioner is in accordance with the plans approved by Respondent Nos. 1 and 2. On 4th December, 2009, Respondent No. 2 issued completion certificate to the Petitioner after inspection of the building. The completion certificate sets out that there are some shops on the ground floor and six flats on the first floor. Once the completion certificate is issued by the Planning Authority Respondent No. 1 could not have refused to issue occupancy certificate to the Petitioner on the ground that he has deviated from the approved plan. Secondly that in respect of the construction commenced by the Petitioner, Respondent No. 1 had earlier issued stop work notice and demolition notice on the ground of non maintenance of the set back of 40 meters on the northern side. The Petitioner had successfully challenged those notices and thereafter completed the construction. Therefore, this reason was no more available to Respondent No. 1 for refusal of the occupancy certificate. Thirdly that Section 134 of the Town and Country Planning Act clearly mandates that if there is a permission from the Planning Authorities in terms of the provisions of the Town and Country Planning Act then notwithstanding the absence of sanctions or permissions under any provision of law the development undertaken in terms of the sanctions granted under Town and Country Planning Act would be valid. In the instant case, the Planning Authorities having issued completion certificate after inspecting the building, Respondent No. 1 could not have refused occupancy certificate to the Petitioner. Besides Rule 10 of the Panchayat Rules mandates that once the construction is found to be in accordance with the plan the Panchayat is bound to grant occupancy certificate in favour of the person carrying out the construction. Fourthly it is contended that refusal of grant of occupancy certificate is a colourable exercise of power on the part of Respondent No. 1 and the action is vitiated on account of malafides of Respondent No. 3 who was then Sarpanch of Respondent No. 1. He is alleged to have influenced Respondent No. 1 to refuse occupancy certificate because the Petitioner had refused to accede to his demand of one of the shops in the building constructed.
5. The petition is opposed by Respondent Nos. 1 and 3 who have filed their affidavits-in-reply. The reply filed by Respondent No. 3 is verbatim same as the reply of Respondent No. 1 upto paragraph 12. According to the Respondents, the petition is not maintainable in view of an alternate remedy available to the Petitioner u/s 201-A of the Goa Panchayat Raj Act, 1994. Both these Respondents deny that the members of Respondent No. 1 were influenced by Respondent No. 3 in passing the impugned resolution. It is further contended in the reply that the Conversion Sanad issued to the Petitioner by the office of the Collector in terms of Rule 7 of the Goa, Daman & Diu, Land Revenue (Conversion of Use of Land and Non Use) Rules, 1969 being for residential purpose, the Petitioner could not have constructed shops which are clearly for commercial use. According to them the completion certificate has been issued by Respondent No. 2 by completely losing sight of the fact that conversion of the land granted was only for residential use and not commercial use. Further, the licences issued by Respondent Nos. 1 and 2 to the Petitioner was to construct the residential building only and not a residential cum commercial building. Therefore, the construction carried out by the Petitioner is in violation of the permissions granted. Respondent No. 3 in his reply denies that he had made a demand from the Petitioner in the year 2006 for one of the shops on the ground floor of the building. He also denies that he has influenced the members of Respondent No. 1 in passing an impugned resolution.
6. The record shows that the Petitioner ran a race of hurdles in completing the construction undertaken by him. It would be convenient and also necessary to set out at this stage the difficulties in the way of the Petitioner in completing the construction, before touching upon the merits of the rival contentions.
7. Six months after grant of the construction licence i.e. on 22nd December, 2006 the Block Development Officer(BDO for short) issued a stop work notice to the Petitioner which was followed by the stop work notice by Respondent No. 1 dated 24th January, 2006. The BDO inspected the site in connection with the stop work notices and made his report dated 10th February, 2006. The Petitioner pointed out that there were discrepancies in the sketch prepared by the BDO and the site plan approved by Town and Country Planning Department on 18th April, 2005. The side set back shown on the approved plan was 4 meters on the south, west and east and 40 meters on the north. Whereas the sketch prepared by BDO showed set back of 2.20 meters on the south, 1.20 meters on the west and east and 30.50 meters towards north. The sketch prepared by BDO showed existence of a Panchayat road running through the plot of the Petitioner though no such road was actually in existence and the plot was actually fenced. The Petitioner challenged the stop work notice issued by Respondent No. 1 by filing Appeal No. 14 of 2006. As the appeal remained pending on account of the post of the appellate authority lying vacant, the Petitioner filed Writ Petition No. 438 of 2006 in the Court. The petition was disposed of by this Court by its order dated 28th November, 2006 directing the appellate authority to dispose of the Panchayat appeal within a period of 3 months. The Panchayat appeal was disposed of by the Director of Panchayats by his Order dated 4th January, 2007. Though during the pendency of the appeal the stop work notice came to be unconditionally withdrawn on 27th December, 2006 by Respondent No. 1, the appeal came to be disposed of by the Director of Panchayats by reasoned order dated 4th January, 2007. In the order the Additional Director of Panchayats disapproved the manner in which Respondent No. 3 had conducted himself in issuance of the stop work notice. The Additional Director stated that Respondent No. 3 ought to have verified the fact that construction licence was already given to the Appellant by Respondent No. 1. Further he should have identified the nature of exact violation of the construction licence. Merely stopping the construction work without proper identification as to what is unauthorised knowing that, licence has been granted, amounts to exceeding the powers contained u/s 64(i)(j) of the Goa Panchayats Raj Act, 1994. The Additional Director also observed that Respondent No. 3 should have placed the matter before the ensuing meeting of the Panchayat which had not been done by him. Thus, Respondent No. 3 had acted contrary to the provisions of the Act. With these observations the Additional Director partly allowed the appeal with directions to Respondent No. 1 to follow the provisions contained under the Goa Panchayat Raj Act in the matter of illegal construction, if any.
8. The next hurdle was an attempt on the part of Respondent No. 1 to construct a road through the property of the Petitioner. He was therefore required to file Writ Petition No. 176 of 2006 in this Court. In the reply to the writ petition, Respondent No. 1 stated that there was no resolution passed to construct a road in the property of the Petitioner. However, it claimed that there was an existing road passing through his property. According to Respondent No. 1 the Petitioner had purchased a sub-divided plot of land. However, no plans were produced by Respondent No. 1 either of sub-division of the area or out-line development plan or plan by a Senior Town Planner or Survey Plan showing existence of the road through the property of the Petitioner. But Writ Petition No. 176 of 2006 came to be disposed of by this Court by the order dated 25th July, 2006 on the ground that there were disputed questions of fact involved in the matter which could not be gone into in writ jurisdiction. The Petitioner was permitted to withdraw the petition keeping all the rival contentions open. Thereafter, the Petitioner filed Panchayat Petition No. 18 of 2006 u/s 178 of the Panchayat Raj Act seeking a direction to Respondent No. 1 not to construct any road or tar any part of property of the Petitioner. The petition came to be allowed by the Additional Director of Panchayats by his order dated 14th July, 2008 observing that if at all Respondent No. 1 wanted to construct a road in the property of the Petitioner it had to acquire the land. By the order passed by him Respondent No. 1 was restrained from constructing any road in the property of the Petitioner without following due procedure of law.
9. Next, Respondent No. 1 issued notice u/s 66(3) to the Petitioner on 30th October, 2006 calling upon him to show cause as to why Panchayat licence should not be revoked and the construction carried out by him so far not be demolished. The Petitioner''s reply dated 7th November, 2006 was not accepted by Respondent No. 1 and order of demolition dated 17th February, 2007 was passed. On the same day, the construction licence granted to the Petitioner was revoked. The demolition notice issued to the Petitioner was on the ground that he had not maintained set back of 40 meters as per the approved plan on the northern side of the property and that there exists a tar road of 4 meters in the property. He, therefore, once again approached Director of Panchayats by filing Appeal No. 17 of 2007. That appeal was allowed by Order dated 27th July, 2008 holding that Panchayat was duty bound to verify existence of road before issuing construction licence and further that there is no record of construction of a tar road in the property of the Petitioner. The Additional Director further held that the show cause notice issued to the Petitioner was contradictory and contrary stands had been taken with regard to the existence of the road and the requirement to keep the set back.
10. Mrs. A. Agni, Learned Counsel for the Petitioner submits that the second ground stated in the impugned resolution for refusal of occupation certificate to the Petitioner can be no longer available to Respondent No. 1 since the question of maintenance of the set back has been decided by judicial orders. This position is not disputed by Mr. Zeller D''Souza, the Learned Counsel for Respondent Nos. 1 and 3. Therefore the only ground from the impugned resolution falling for consideration of this Court is of construction by the Petitioner of a building for residential as well as commercial purposes.
11. To recapitulate the facts the conversion sanad granted to the Petitioner was for use of the property for residential purposes. Thereafter, he submitted the building construction plans for the purpose of sanction. The Deputy Town Planner of Respondent No. 2 approved the plans on 18th April, 2005. Respondent No. 1 also passed and approved the plans on 23rd May, 2005 in view of its resolution No. 2(3) dated 29th April, 2005. Photo copy of the plan annexed to the present proceedings shows endorsement of approval by both the authorities. The plans make provision for 5 shops on the ground floor and flats on the first and the second floor. The building constructed by the Petitioner is completely in accordance with the plans passed by Respondent Nos. 1 and 2. The site of construction had been twice inspected on behalf of Respondent No. 1, once by Block Development Officer on 18th January, 2006 and then at the time of issuance of the notice for cancellation of the licence. Despite the fact, until the application by the Petitioner for occupancy certificate after completion of construction of the building, no dispute whatsoever had been raised by Respondent No. 1 relating to provision of the shops in the building constructed. For almost two years i.e. between December, 2006 and July, 2008 there have been proceedings agitated between the parties in various Courts including this Court relating to the construction carried out by the Petitioner, with the Petitioner succeeding in his every challenge to the action proposed and taken by Respondent No. 1. In none of the actions proposed complaint of change of user from residential to residential-cum-commercial was made.
12. We will first deal with the preliminary objection of Respondent Nos. 1 and 3 as regards maintainability of the petition in view of availability of an alternate remedy of filing appeal u/s 201-A of the Goa Panchayat Raj Act, 1994. Section 201-A permits an appeal to Block Development Officer on miscellaneous matters dealt by the Panchayats. Mrs. Agni submits relying upon a decision of Division Bench of this Court dated 28th April, 2009 in Writ Petition No. 116 of 2009(Meenakshi Financial Consultants(P) Ltd. and Ors. v. The Village Panchayat of Orlim, Salcete Goa that the remedy u/s 201-A is not available in the matter regulated by Section 66. On a similar argument advanced in that case, it was held as follows:
10. Section 201-A permits appeal in miscellaneous matters within period of 30 days from the date of refusal of any request by said authority. The explanation defines refusal as rejection of any request in writing or non conveying of any reply to the application within a period of 15 days from the receipt of application in its office by Panchayat. Section 66 of Sub-section (2) permits filing of appeal within 30 days after the date of expiry of period of 30 days of filing application for grant of permission if no decision is taken thereon by the Village Panchayat with said period. Thus, provisions of Section 66(2) prescribe different period for accrual of cause and rule out applicability of explanation of Section 201-A. It is therefore obvious that Section 201-A read with explanation is not available in the matter regulated by Section 66. In view of this finding, it is apparent that reliance upon it by Panchayat to point out the alternate remedy to the Petitioners is misconceived.
We respectfully agree with the above view. Besides availability of alternate remedy is never a complete answer to the petition. It is possible that in a given set of facts and circumstances the alternate remedy available may not be sufficient and appropriate to meet the ends of justice. As has been pointed out by Mrs. Agni, the Petitioner has been sufficiently harassed by Respondent No. 1 and has been taking rounds of different authorities for a period of about two years. She points out that the facts of the case shows that respondent No. 1 is bent upon refusing occupancy certificate to the petitioner. In that circumstance, it would be a travesty of justice if the Petitioner is asked to seek remedy u/s 201-A of the Goa Panchayat Raj Act, 1994. Considering the facts and circumstances of the case, we find some substance in this submission of Mrs. Agni.
13. We will now deal with the submission made on behalf of the Petitioner that the provision of Section 134 of the Town and Country Planning Act overrides any other provision under the Goa Panchayat Raj Act, 1994. Mrs. Agni, Learned Counsel argued that Section 134 of the Town and Country Planning Act mandates that if there is permission from the Planning Authorities in terms of the provisions of the Town and Country Planning Act, then notwithstanding the absence of sanctions or permissions under any other provisions of law, the development undertaken in terms of the sanctions granted under the Town and Country Planning Act would be valid. In other words, once the completion certificate is granted by Respondent No. 2 no objection could be raised by Respondent No. 1 and grant of occupancy certificate should be by course. She further points out to Rule 10 of Panchayat Rules which mandates that once the construction is found to be in accordance with the plan the Panchayat is bound to grant occupancy certificate.
14. As regards the overriding effect of Section 134 of the Town and Country Planning Act, Mrs. Agni relies upon decision of Division Bench of this Court in Smt. Angela Augusta Gonsalves e Alvares v. M/s Souza Towers and others(1998(1) Goa L.T. 184). The reliance placed on the decision by Mrs. Agni is not correct. The decision cited is on the question whether development activities in the State of Goa could be carried out in contravention of any provisions of Town and Country Planning Act but consistent with the permission granted by any other authority. This Court held "in other words, the scheme of the law is that all developmental activities in the State of Goa have to be carried out in accordance with the provisions of the Town Planning Act irrespective of any other sanction or permission having been obtained under any other Act and if any development or building activity is in contravention of provisions of the Town Planning Act, such development or building activity cannot be saved by putting up a defence that the permission or sanction has been obtained from other local Authority under other Act. For a legal and authorised development in the State of Goa, the valid sanction or permission of Town Planning Authority under the Town Planning Act is thus sine qua non and if there is any contravention in any building or development of the Town Planning Act or such development or building is in contravention of the permission so granted, it is the bounden duty of the Town Planning Authority to ensure that the provisions of the Town Planning Act are given effect to and such contravention is taken to its logical end".
The question arising for consideration in the present case is entirely different.
15. Shri S.D. Padiyar, Learned Counsel for Respondent No. 2 partly supports the Petitioner in her argument on the overriding effect of Section 134 of the Town and Country Planning Act. He submits that the word of Town and Country Planning Authority would be final only on the planning and development aspect of the activity of construction in relation to the Town and Country Planning Act. It does not extend to several of the other aspects of building construction. He refers to the provisions for the procedure for securing development permission under the Town and Country Planning Act as provided in the Planning Development Authority (Development Plan) Regulations, 2000. The procedure is provided in Part II of the Regulations. The part which is relevant for the present purposes which is of Regulation 3.4 reads as follows:
Grant of permission
1.On receipt of an application as prescribed above, the Authority shall, subject to the provisions of the Act, pass an order for:
i) Granting permission unconditionally, or
ii) Granting permission subject to such conditions it may think fit to impose; or
(iii) Refusing permission.
PROVIDED that the grant of permission shall be construed only so far that the plans have been approved as regards the zone, location, height, number of storeys, size of buildings, other structures, yards, courts and open spaces and the uses of buildings and land in all areas and in addition, it shall be construed as Technical Approval under Village Panchayat Regulations in Panchayat areas.
PROVIDED further that such permission shall not in any way construed to be a document confirming any or all of the following:
a) Title or interest of the holder of the permission to the relevant land or building or both;
b) Boundaries of the relevant site for which permission has been obtained; or
c) Any easement thereon or there from; and
d) Structural or engineering safety or the workmanship of the proposed development.
The provisions contained in Part II of the Regulations and Regulation 3.4 in particular shows that the final word of the Town and Country Planning Authority in the matter of construction activity is limited to the technical aspects of the construction activity. There are several other aspects of the construction of the building which would fall within the domain of consideration of Panchayat. The Goa, Daman and Diu Panchayats (Regulation of Buildings) Rules, 1971 make provision for the other aspects. Rules 12 to 34 relate to the construction activities. Rule 13 is for means of access. Rule 26 relates to water supply and sanitary installations. Rule 29 relates to disposal of sewage and Rule 33 relates to architectural features of the buildings to be constructed within the territory of Panchayat. The approval on these aspects has to be of the Panchayat. These aspects are not covered by the Town and Country Planning Act. Besides Rule 10 of the Goa, Daman and Diu Panchayats(Regulation to Buildings) Rules, 1971 provides that no building shall be occupied until an occupancy certificate is issued by the Technical Officer after conducting site inspection and after affirming that the building confirms with all the requirements of the rules. In the circumstances, we are not inclined to accept the argument that once the Planning Authority issues completion certificate to the Petitioner indicating that the construction of the building has been in accordance with the plans sanctioned there is no role to be played by the Panchayat except for formally issuing the occupation certificate.
16. Mrs. Agni submits that refusal of occupancy certificate to the Petitioner has been a colourable exercise on the part of Respondent No. 1 and that the decision of Respondent No. 1 has been completely influenced by Respondent No. 3 who was interested in having allotment of a shop in the building constructed by the petitioner. Respondent No. 3 in his reply denies that he had demanded any shop from the Petitioner. In our opinion, it will not be necessary for us to enter into this controversy, because of the decision of the refusal of occupancy certificate is of Respondent No. 1 as a body and the decision was taken in its meeting by passing a resolution therefore .Though it may be of some significance that the resolution for refusal was proposed by Respondent No. 3.
17. Respondent No. 1 is seen to have issued one notice after another to the Petitioner in order to stop the construction undertaken by him on his property. This was despite issuance of construction licences and passing of the building plans. The record shows that the grounds on which the notices were issued were absolutely baseless. Though, the second ground for refusal of occupancy certificate was no more available for consideration of Respondent No. 1, it having been decided by judicial orders in favour of the Petitioner, the same was sought to be pressed into service. Further knowing fully well that it had approved the plan for construction of shops, Respondent No. 1 raised an objection regarding the same after completion of construction of the building. Having approved the plans for construction of a building which makes provisions for shops on the ground floor, it was not open for Respondent No. 1 to refuse occupancy certificate to the Petitioner on that ground. This conduct on the part of Respondent No. 1 a public body is reproachable and requires to be condemned. Therefore the rule is made absolute in terms of prayers (a) and (aa). Respondent No. 1 shall pay costs of the petition quantified at Rs. 20,000/- (Rupees Twenty Thousand only) to the Petitioner within a period of four weeks from today.
