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2014 Supreme(Bom) 317
In the High Court of Bombay at Goa
R.S. DALVI & F.M. REIS, JJ.
The Corlim Citizen Civic & Consumer Forum
Versus
State of Goa, Through their Chief Secretary, Government of Goa, Secretariat & Others
Public Interest Litigation W. P. No. 8 of 2013
Decided on: 10-02-2014
For the Petitioner:Joseph Vaz, Advocate.
For the Respondents:R1 to R5, R8 & R12, E. Afonso, Government Advocate, R6, J. Godinho, R7, P. A. Kamat, R10, S. G. Desai, Senior Advocate with J. Superkar, R11, Shirin Naik with Ms. Shrushti Naik, Advocates.
The judgment establishes the importance of adherence to setback area and road width requirements as per the Goa (Regulation of Land Development and Building Construction) Act, 2008, and its regulations.
Headnote:
Town and Country Planning - Construction Irregularities - Goa (Regulation of Land Development and Building Construction) Act, 2008, Section 2(113), Regulation 6A.4(16), Clause 4.4.1, Table IX-A, Regulation 4.5
Fact of the Case:
The petitioner challenged the construction by respondent nos. 10 and 11, citing irregularities and illegalities. The main grievance was the construction of respondent no.10 on the road, violating setback area requirements.
Finding of the Court:
The Court analyzed the construction plans, relevant laws, and rules. It found discrepancies in the construction's adherence to setback area and road width requirements. It also addressed the lack of Village Panchayat license and the dispute over right of access for respondent no.11.
Issues: Irregularities in construction, adherence to setback area and road width requirements, lack of Village Panchayat license, dispute over right of access for respondent no.11.
Ratio Decidendi: The Court applied the Goa (Regulation of Land Development and Building Construction) Act, 2008, and relevant regulations to assess the construction irregularities and legal compliance.
Final Decision: The Court disposed of the writ petition, granting rule to address the irregularities and issuing specific directions regarding the Village Panchayat license and right of access for respondent no.11.
Smt. R.S. Dalvi, J.
Rule. Made returnable forthwith.
2. The petitioner has taken exception to the construction put up by respondent nos. 10 and 11 on various grounds. The petitioner has cited various illegalities/irregularities. The construction has been completed. The petitioner has filed the petition after the construction came up.
3. With regard to the construction of respondent no.11, the grievance of the petitioner is that the approval of the Town and Country Planning Authority itself is incorrectly granted. That approval is shown in the plan annexed at Exhibit R10/I to the petition (page 160). The plan has been approved under No. TIS/6934/ COR/TCP/11/838 dated 17.05.2011. It accompanies the technical clearance order passed by the Town and Country Planning Authority dated 17.05.2011. It shows the total area of the plot to be 1600 square metres which is as per the sale deed executed by the developer. The part of the land has been acquired by the Government to the extent of 110 square metres which is deducted therefrom. The road widening area of 80.22 square metres is further deducted. The net effective area of the plot thereafter arrived at is shown to be 1409.78 square metres.
4. The main grievance of the petitioner is that the building construction of respondent no.10 is on the road though a minimum width of the road is to be left as the setback area. Upon that contention, this Court had ordered the Town and Country Planning Authority to make a report upon taking the site inspection as to what area has been left for the road as also the area of the acquired land of respondent no.7. The plan at page 160 shows the width of the road as also the center-line of the road. It thereafter shows the area under acquisition within the plot and after the area under the acquisition is the space of 3 metres on one side and 5.86 metres on the other side left before the building line of respondent no.10 starts. This is within the proposed compound wall. The car parking spaces are also shown within that space and within the building line of the structures on the plot which is shown to be proposed residential complex of respondent no.10.
5. It is contended that the report of the Town and Country Planning Authority is an eye wash and shows wrong area of the setback of the road required to be kept between the building line and the extent of the plot of respondent no.10 and it is erroneously measured from the middle of the road.
6. The affidavit of the Chief Town Planner, Town and Country Planning Department, Government of Goa, shows the area acquired for the road widening and the net effective area. This has been explained by him in his report upon taking a site inspection. It has been shown in the site inspection plan annexed to his report. The site plan shows the road after which is the acquired land and after which is the setback portion. The setback portion is 3.20 metres on one side and 4.00 metres on the other side.
7. It would have to be seen whether this setback portion is adequate. For that purpose counsel on behalf of respondent no.10 has drawn our attention to the relevant laws and rules.
8. The Goa (Regulation of Land Development and Building Construction) Act, 2008 and the Rules thereunder show the definition of 'right of way' in Section 2(113) as the 'road or the right of way' to mean the right of way of the road or street inclusive of the carriageway, shoulder, drain, footpaths etc. The petitioner has shown another plan annexed to the site inspection report at Annexure 'C'. This shows the road and the construction in the entire locality. It shows the site of respondent no.10 outside which is a tar road of 4.80 metres. This would include the shoulder, footpath etc. It is not only the carriageway. This plan shows the properties to the right as well as to the left of the structure of respondent no.10 having a tar road of 3.20 and 3.50 metres which is lesser in width than what is seen in the construction of respondent no.10
