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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, GOA BENCH
MANISH PITALE, J.
Smt. Fanny Elaine D'Silva – Appellant
Versus
The Village Panchayat of Betalbatim – Respondent
Writ Petition No. 1911 of 2021
Decided On : 10-03-2022
Unauthorized Construction - Goa Regularization of Unauthorized Construction Act, 2016 - [Section 2(h), Section 3(3) and (4)] - The court quashed and set aside an order allowing the regularization of unauthorized construction, emphasizing that the construction was illegal and could not be regularized under the Act of 2016. The court upheld the Deputy Collector's rejection of the regularization application, finding that the built-up area exceeded the permissible limit for residential structures under the Act.
Fact of the Case:
The petitioner raised a grievance against illegal construction by the respondents, which was confirmed by a demolition notice issued by the Village Panchayat. Despite this, the construction was not demolished, leading the petitioner to file a writ petition seeking enforcement of the demolition notice. The respondents sought regularization of the unauthorized construction under the Act of 2016, but the Deputy Collector rejected the application due to the excessive built-up area. The respondents appealed, and the court allowed the appeal, prompting the petitioner to file the present petition.
Finding of the Court:
The court found that the construction was illegal and could not be regularized under the Act of 2016. It emphasized that the built-up area exceeded the permissible limit for residential structures and upheld the Deputy Collector's rejection of the regularization application.
Issues: The issues involved the legality of the unauthorized construction, the permissibility of regularization under the Act of 2016, and the authority's duty to enforce the demolition notice.
Ratio Decidendi: The court held that the construction was illegal and could not be regularized under the Act of 2016, as the built-up area exceeded the permissible limit for residential structures. It also emphasized the authority's duty to enforce the demolition notice.
Final Decision: The court quashed and set aside the order allowing the regularization of unauthorized construction and upheld the Deputy Collector's rejection of the regularization application.
JUDGMENT :
MANISH PITALE, J.
1. Heard finally with the consent of the learned Counsel appearing for the parties.
2. Rule. Learned Counsel appearing for the Respondents, waive notice.
3. By this Petition, the Petitioner has challenged order dated 26.07.2021, passed by the Respondent No. 7, whereby Appeal filed by the Respondent No. 5 has been allowed and an order passed by the Respondent No. 8-Deputy Collector, has been set aside, further directing the said Respondent to regularize the unauthorized construction of Respondent No. 5.
4. According to the Petitioner, the said Order flies in the face of adverse Orders passed in earlier proceedings by the District Court, this Court and the Hon'ble Supreme Court. It is further submitted that even if the application for regularization filed by Respondent No. 5, under the provisions of the Goa Regularization of Unauthorized Construction Act, 2016 (hereinafter referred to as ‘the Act of 2016’) was to be considered on its own merits, it would be obvious that Respondent No. 7 could not have allowed the same.
5. Shorn of unnecessary details, the facts leading up to filing of the present Petition are that, the petitioner raised a grievance that the Respondent nos. 5 and 6, being owners of a plot adjoining the plot of the Petitioner, had undertaken illegal construction in their plot in such a manner that requisite setback was not maintained and there was flagrant violation of relevant Building Regulations and Rules. The Petitioner had been pursuing this grievance from October 2012, when she filed a complaint before Respondent No. 4. It was the grievance of the Petitioner that despite illegalities committed by Respondent nos. 5 and 6, the Respondent No. 1-Village Panchayat was not taking any action in the matter.
6. According to the Petitioner, after pursuing the matter with various authorities, ultimately on 18.11.2013, the Respondent No. 1-Village Panchayat, issued a notice of demolition against Respondent No. 5. The said Respondent challenged the demolition notice before the Respondent No. 2-Additional Director of Panchayats, by filing an Appeal under the provisions of the Goa Panchayat Raj Act, 1994 (hereinafter referred to as ‘the Act of 1994’). The said Appeal was allowed and the aforesaid notice of demolition dated 18.11.2013 was set aside. The Respondent No. 5 was given an opportunity to get the unauthorized construction regularized under the provisions of the Act of 2016. Aggrieved by the same, the Petitioner filed Revision Application under Section 201-B of the Act of 1994 before the District Court. By Judgment and Order dated 10.04.2019, the District Court rendered findings against the Respondent nos. 5 and 6, but found that the Respondents could be given an opportunity to get the unauthorized construction regularized, if permissible, within a period of three months from the date of the Order. It was further specified that if Respondent No. 5 does not avail of the opportunity, or if the unauthorized construction is not regularized by the Competent Authority, the Respondent No. 1-Village Panchayat, shall demolish the unauthorized/illegal construction in accordance with the aforesaid demolition notice dated 18.11.2013.
7. Despite the aforesaid directions given by the District Court and in the absence of any order of regularization, the Respondent No. 1-Village Panchayat failed to take any action in pursuance of its own demolition notice dated 18.11.2013. In these circumstances, the Petitioner was constrained to file Writ Petition Stamp Number Main no. 1520 of 2020, before this Court, seeking appropriate directions in the matter. By an Order dated 27.01.2021, a Division Bench of this Court disposed of the Writ Petition by holding that the demolition notice dated 18.11.2013, issued by the Respondent No. 1-Village Panchayat had attained finality and that the Village Panchayat was bound to enforce the demolition notice expeditiously. The Counsel appearing for the Respondent No. 1-Village Panchaya
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