IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 34 OF 2011 MEENAKSHI FINANCIAL CONSULTANTS (P) LTD AND ANR.REP. BY DULY CONSTITUTED ATTORNEY MR. ANAND A. BATRA ... Petitioner Versus STATE OF GOA THROUGH ITS CHIEF SECRETARY AND ANR, ... Respondent Mr. Sudesh Usgaonkar, Advocate for the petitioner. Mr. M. Salkar, Addl. Govt. Advocate for the respondents. Coram:- S. C. DHARMADHIKARI & F. M. REIS, JJ. Date:- 16th March, 2011 P.C.:- By this petition under Article 226 of the Constitution of India, the petitioners impugn an order dated 14th July, 2010 Annexure "A" to this petition. The order under challenge holds that the site inspection conducted reveals that the development undertaken by the petitioners is in low lying land and, therefore, necessary NOC under Section 17A of the Goa, Daman and Diu Town and Country Planning Act, 1974 ("the Act" for short) has to be obtained. 2. This is not the first time that the petitioners are before this Court. Earlier, a writ petition was filed in this Court by some aggrieved parties, complaining that the petitioners' activities amount to violating Section 17A of the Act. A grievance was also made that the petitioner in Writ Petition No.392/2010 was facing hardships because the mud was being dumped into her land. 3. The said petition was placed before the learned Single Judge of this Court on 12th May, 2010 and the present petitioners being party respondents thereto, made a statement that the development was being carried out lawfully on the land bearing Survey No.87/14-C of Village Orlim, Salcete, Goa and the mud excavated from the said land for the purpose of laying foundation of the building was being placed on the same land and not thrown anywhere, much less the land of the petitioner in that petition. In that event, it was stated that the mud would be removed and disposed of without affecting the land of the petitioner therein. 4. When the writ petition was placed before the Division Bench post-vacation, the Division Bench recorded the statement of the present petitioners who were respondents No.5 and 6 therein, and accepting that as an undertaking, directed that the Town Planner shall decide as to whether the notice dated 26th May, 2010 would point out any violation of the Act. 5. Our attention is invited to the reply to the notice and the impugned order. It has been urged that the undertaking of the petitioners has been recorded and what the petitioners have been doing at site would not attract Section 17A of the Act. All that the petitioners are doing is that they are making the land in possession suitable for construction of a building. The said land is being excavated so as to lay a foundation, based on which the building would be erected. The mud that is being collected after such excavation, had been earlier placed at some other part of the property of the petitioner, but later on it has been removed, as stated before this Court. 6. Having perused this petition and the annexures thereto, we are not impressed by the objection raised by the learned Addl. Government Advocate that the petitioners' activities violate the mandate of Section 17A of the Act. All that the learned Addl. Government Advocate, on his attention being invited to Section 17A of the Act, would urge is that the petitioners have been filling up the low lying land. However, the explanation to Section 17A and particularly, explanation (i) states as to what would be meant by "low lying land". Low lying land includes any land below 50 cms. or more than from the adjoining ground level. In the instant case, the respondents have not been able to point out as to whether the activity of the petitioners would amount to filling up of any low lying land. This is the only aspect that is complained of. No other violation of Section 17A has been brought to our notice. 7. Once the petitioners have clarified before this Court that what they are doing is constructing a building on their own land by developing it, and for that purpose they are laying a foundation by excavating the land which is not stated to be and proved to be low lying and all the mud collected has been removed from the site, then we do not see how the respondents can continue with their action. In the peculiar facts of this case, we are not in agreement with the learned Addl. Government Advocate that the conclusion in the impugned order is justified. In fact, the conclusion reached by the Authority, namely the Town Planner is not in consonance with Section 17A of the Act, which only carves out prohibition on cutting of hilly land and filling up of low lying land, and that the petitioners are doing some activity in no development area or rice land, is beyond the purview of the Authority, as contemplated by Section 17A of the Act. 8. In such circumstances, in the facts peculiar to this case, by accepting the statement of the petitioners that they are not filling up any low lying land and all that they are doing is laying a foundation for their development and construction and that too on their own land, nothing needs to be done in this petition. When the petitioners have maintained the existing level and that is being shown from the joint site inspection report referred to in the impugned order, then the finding recorded against them is not supported by any material. 9. In these circumstances, the impugned order cannot be sustained and it is, accordingly, set aside, but subject to the statement and undertaking of the petitioners. Petition is disposed of. Needless to, therefore, state that the Authority cannot prevent the development at site by the petitioners, as long as it does not come within the purview of Section 17A of the Act and is in accordance with the licence/permission for construction. S. C. DHARMADHIKARI, J. F. M. REIS, J. ssm.