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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.Sonak, R.N.Laddha, JJ.
Pandurang Ananta Naik – Appellant
Versus
State Of Goa – Respondent
Writ Petition No. 1163 of 2022
Decided On : 07-07-2022
J.E.Coelho Pereira, Advocate, Vledson Braganza, Advocate, Sagar Rivankar, Advocate, P.Faldessai, Advocate, Nigel Da Costa Frias, Advocate, G.Malik, Advocate, A.V.Pavithran, Advocate, Nikhil Pai, Advocate
The court emphasized the importance of considering larger public interest and compliance with regulations and permissions in property disputes, particularly in cases involving public utilities.
Headnote:
MRF - Property Dispute - Goa Land Development and Building Construction Regulations, 2010, Amendment Regulations of 2021 - The court discussed the provisions of the Goa Land Development and Building Construction Regulations, 2010, particularly clause 12.4(d) allowing the use of open spaces for public utilities, and the Amendment Regulations of 2021, which introduced clause 3.11 A concerning the Development Permission/Technical Clearance/Completion Order for public projects. The court emphasized that the establishment of the Material Recovery Facility (MRF) by the Panchayat was in compliance with the regulations and permissions from various authorities, and the facility was a public utility serving the larger public interest.
Fact of the Case:
The petitioners challenged the establishment of a Material Recovery Facility (MRF) by the Panchayat on a portion of their open space property. The petitioners argued that the open space was their private property and that the Panchayat did not have the necessary permissions to establish the MRF. The Panchayat, on the other hand, relied on an affidavit cum irrevocable no objection certificate obtained from the petitioners for the use of the open space for public utilities.
Finding of the Court:
The court found that the petitioners had previously provided an affidavit cum irrevocable no objection certificate for the use of the open space for public utilities, and the establishment of the MRF by the Panchayat was in compliance with the regulations and permissions from various authorities. The court held that the petitioners failed to make a case warranting interference with the Panchayat's establishment of the MRF.
Issues: The main issues revolved around the ownership of the open space, the permissions required for establishing the MRF, and the validity of the permissions obtained by the Panchayat.
Ratio Decidendi: The court's decision was based on the petitioners' previous commitment through the affidavit cum irrevocable no objection certificate, the compliance of the Panchayat with the relevant regulations and permissions, and the larger public interest served by the establishment of the MRF.
Final Decision: The petition was dismissed as the court found no substantial legal point or case to warrant interference with the Panchayat's establishment of the MRF.
JUDGMENT
1. Heard the learned counsel for the parties.
2. Mr. Pereira learned Senior Advocate for the petitioners submitted that the Panchayat should not be allowed to proceed with the works of the establishment of MRF in the open space on the following grounds:
"(a) The open space was the private property of the petitioners since the petitioners have, to date, not transferred the same to the Panchayat or the State Government;
(b) The Panchayat has not obtained any permission to establish MRF. In any case, the approvals so obtained are null and void and, therefore, no approvals in the eyes of the law;
(c) The technical approval dtd. 13/12/2019 has been issued by the Executive Engineer, PWD, who is not competent authority for the issue of such approval;
(d) The Goa State Pollution Control Board's (GSPCB) approval dtd. 4/12/2019 expired on 4/12/2020. Therefore, as of date, there is no approval for the establishment of MRF;
(e) The Panchayat issued the work order on 21/1/2021. Therefore, the Panchayat cannot rely on the amended regulations of 2021 that entered into force only in November 2021;
(f) Even the amended regulations of 2021 require the Panchayat to obtain permission from various authorities that are not obtained;
(g) The Deputy Town Planner, by communication dtd. 3/6/2022, has directed the Panchayat to stop the work of MRF. Therefore, the Panchayat cannot proceed with such work."
3. Mr. Pereira, however, submitted that the petitioners are not pressing the challenge to Resolution No.4(1) dtd. 13/9/2019 passed by the Panchayat for establishing the MRF.
4. Mr. Nigel Da Costa Frias, learned counsel for Village Panchayat of Issorcim (Respondent No.3), submitted that many of the petitioners, including the original owners of the developed property, had signed an affidavit cum irrevocable no objection certificate on 18/12/2018 for the use of open space for public utilities only. He submits that based on such affidavit cum irrevocable NOC, which was forwarded to the Panchayat under the subject "Gift Deed," the petitioners obtained a final NOC for sub-division of the plot. He submitted that the petitioners cannot now renege on this document and prevent the Panchayat from using a tiny portion of the open space for utilities.
5. Mr. Nigel Da Costa Frias submitted that this Court is monitoring a Public Interest Litigation for providing Solid Waste Management Facilities in the entire State of Goa. Directions have been issued to various Panchayats and Municipalities to set up the MRF. The Panchayat has obtained permission from multiple authorities, and no illegality is involved. He, therefore, submitted that this petition may be dismissed.
6. Mr. Faldessai learned Additional Government Advocate appears for the State and the Planning Authority. Accordingly, he adopted Mr. Costa Frias's submissions and urged the dismissal of this petition.
7. Mr. Pavithran appears for GSPCB, and Mr. Nikhil Pai appears for the Planning and Development Authority. Both endorsed Mr. Costa Frias's submissions and urged dismissal of this petition.
8. The rival contentions now fall for our determination.
9. The record bears out that at least the first six petitioners, original property owners, tendered an Affidavit cum irrevocable No Objection Certificate to the Panchayat, possibly in place of executing a Gift Deed. Even the covering letter dtd. 24/12/2018, by which the Affidavit cum irrevocable No Objection Certificate was forwarded to the Panchayat, bears the subject "Gift Deed." This affidavit cum irrevocable NOC refers to open space admeasuring approximately 6994 square meters and states that the petitioners shall have no objection of whatsoever nature for the Government to use and utilize the open space for public utilities only. Based on this document, the petitioners obtained a final NOC for the sub-division of the plots acquired by them.
10. There is no dispute that the MRF which the Panchayat is establishing is on a small portion of this open space adm
