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2019 Supreme(Bom) 1768
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
M.S. SONAK, C.V. BHADANG, JJ.
Vishwanath M. Naik, Advocate - Petitioner
Versus
State of Goa, through the Chief Secretary & Others - Respondents
Writ Petition No. 79 of 2010
Decided On : 17-12-2019
For the Petitioner:S.D. Lotlikar, Senior Advocate with S. Kenny, Advocate.
For the Respondents:Pravin Faldessai, Additional Government Advocate, A.F. Diniz, Nikhil Pai, Advocates, S.S. Kantak, Senior Advocate with A. Kakodkar, P. Talaulikar, Advocates.
Residents affected by illegal constructions have locus standi to challenge them, and the bonafide nature of a Public Interest Litigation is determined by the public interest involved, not the petitioner's personal motives. The court emphasized the duty to inquire into public interest issues and the need to address misuse of power by those in authority.
Headnote:
Public Interest Litigation - Construction of buildings - Planning regulations - Regularization orders - Locus standi - Bonafide Public Interest Litigation
Fact of the Case:
The petitioner challenged the construction of buildings by the respondent, alleging violations of statutory provisions and planning regulations. The respondent, a builder, had put up buildings in breach of height restrictions, floor area ratio, and set backs. The petitioner alleged that the authorities ignored these illegalities due to the political influence of the respondent's director, who was an MLA and Minister of Transport. The respondent sought to regularize the illegal constructions, justifying them on the basis of anticipated zoning changes.
Finding of the Court:
The court rejected the respondent's objections to the petitioner's locus standi and the bonafide nature of the Public Interest Litigation. It held that the petitioner, as a resident affected by the illegal constructions, had the right to challenge them. The court also found that the petitioner's allegations of abuse of power and illegalities were relevant, and the petition was not merely a political vendetta. The court emphasized the duty to inquire into public interest issues and the need to address misuse of power by those in authority.
Issues: The court considered the petitioner's right to challenge the illegal constructions, the bonafide nature of the Public Interest Litigation, and the impact of the illegalities on the local residents.
Ratio Decidendi: The court held that residents affected by illegal constructions have locus standi to challenge them, and the bonafide nature of a Public Interest Litigation is determined by the public interest involved, not the petitioner's personal motives. The court emphasized the duty to inquire into public interest issues and the need to address misuse of power by those in authority.
Final Decision: The court set aside the regularization orders for the illegal constructions and directed the respondent to comply with conditions for converting the ground floor into parking on stilts and to pay a penalty. The court reserved the right for the purchasers of the apartments to seek damages if the respondent failed to comply, and authorized demolition of the illegal constructions if necessary.
JUDGMENT :
M.S. Sonak, J.
1. Heard Mr. S.D. Lotlikar, learned Senior Advocate with Ms. S. Kenny for the Petitioner, Mr. P. Faldessai, learned Addl. Government Advocate for Respondent Nos.1, 2, 4 and 5, Mr. A.F. Diniz with Mr. N. Pai for Respondent No.3, Mr. S.S. Kantak, learned Senior Advocate with Mr. A. Kakodkar and Mr. P. Talaulikar for Respondent No.6.
2. The Petitioner, by instituting this Public Interest Litigation, questions the construction of buildings put up by the builder/Respondent No. 6 in the property bearing survey Nos. 102/1 and 102/2 of Ella (Old Goa), Tiswadi Goa (the said property) and seeks quashing of permissions, completion certificate, occupancy certificate and more particularly the orders of regularisation made by the Planning Authorities (Respondent No.4) and the Village Panchayat of Se-Old Goa (Respondent No.3) as being in violation of statutory provisions and planning regulations, not to mention that the same have been issued for malafide and extraneous purposes. The Petitioner alleges that the director of the Respondent No.6, was, at the relevant time, Member of Legislative Assembly (MLA) from the very constituency and also held the position of Minister of Transport, State of Goa. The Petitioner has alleged that whole scale illegalities were permitted and tolerated by the statutory authorities which mainly, taking into consideration the position of such director.
3. On 15th April, 2010, when the matter was taken up for consideration in the first instance, this Court, recorded the statement made on behalf of the Respondent No.6 that an affidavit-cum-undertaking would be filed in this Court agreeing to remove all shutters on the ground floor and the ground floor area would be kept vacant or used only for the purposes of parking. In the order dated 15th April, 2010, it was made clear that any further rights which the Respondent No.6 may seek to create in favour of the third parties, will be after informing such third parties/purchasers of the pendency of such petition. It was made clear that such purchasers/transferee will be bound by the orders that would be made in the present petition.
4. On 15th June, 2010, this Court issued Rule by keeping open the preliminary objections relating to locus standi of the Petitioner to institute the present Public Interest Litigation. In the said order as well the statement on behalf of the Sixth Respondent regards the compliance with the statement recorded in our order dated 15th April, 2010, was once again recorded. The statement was accepted as the statement made to this Court and ad-interim relief granted earlier was directed to continue to operate as interim relief. Even the hearing of the petition was expedited.
5. In terms of the affidavit-cum-undertaking, the Sixth Respondent was duty bound to remove all the shutters from the ground floor shops/commercial areas and use the area for the purpose of parking. However, almost eight years later, when the matter was taken up for final hearing, the learned Senior Advocate appearing for the Petitioner made a grievance that till date the Sixth Respondent, had not complied with the undertaking given to this Court. Accordingly, opportunity was granted to the Sixth Respondent to explain the position regards compliance.
6. After seeking some adjournments, ultimately the authorized representative of the Sixth Respondent filed an affidavit of purported compliance alongwith photographs. From the perusal of the same, it was apparent that there was some belated compliance, though, there was no compliance of the undertaking in its entirety. Now that the matter is taken up for final disposal, we leave the issue of compliance of undertaking, at that.
7. Mr. Kantak, learned Senior Advocate appearing for the Sixth Respondent in pursuance of liberty reserved to the Sixth Respondent in our order dated 15th June, 2010 questions the locus standi of the Petitioner to institute the present petition and even urge that the present petition was not
