-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 165 OF 2003 Fomento Resorts & Hotels Ltd., a Public Limited Company, having its Registered Office at Cidade de Goa, Dona Paula through its Managing Director, Mrs. Anju Timblo. ...... Petitioner Original Appellant V e r s u s 1. The Town & Country Planning Board, Government of Goa with its office at Old Goa Medical College Complex, Panaji, Goa. 403 001. 2. North Goa Planning & Development Authority, having its Office at Archdiocese Building, First Floor, Mala Link Road, Panaji. ...... Respondents Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the Petitioners. Mr. V. P. Thali, Advocate for the Respondent no. 2. CORAM: A. P. DESHPANDE, J. DATE: 21 st November, 2008. ORAL JUDGMENT The Petitioner questions the legality and validity of an Order passed by the respondent no.1-Board in appeal, confirming the Order passed by respondent no.2 and rejecting the appeal filed by the present Petitioner. The Petitioner is in possession of property surveyed under new survey no. 246/1 as lessee. There is a Nallah situated to the north of the suit property and beyond the -2- Nallah, inter alia, there is a developed property surveyed under no. 242 known as Machado's Cove. The said property is divided into various plots including plot no. 188 owned by Britto Amusements Pvt. Ltd., promoted by Dr. William Britto. The Petitioner constructed a bridge structure made of steel fabrication across the existing Nallah. The said structure was erected with the consent of the owner of the plot of land on the other side of the Nallah where the bridge rests. As the construction was found to be erected without prior permission of the respondent no.2 as required under Section 44 of the Town and Country Planning Act, 1974, the Respondent no.2 issued a show cause notice to the present Petitioner calling upon the Petitioner to explain as to how come the illegal structure, in the nature of a stepped bridge made of steel fabrication, is erected across the Nallah without prior permission. The Petitioner was further called upon to explain as to why an action under Section 52 should not be taken. The Petitioner replied to the show cause notice. At that stage, the Petitioner claims to have realised that it ought to have secured prior permission as is required by Section 44 of the Act and hence moved the Respondent no.2 by an application seeking permission to regularise the unauthorised structure under sub-section (2) of Section 52 of the Act. Under the scheme of sub-section (2) of Section 52, an application to be moved for regularisation of the unauthorised structure is permissible to be made. The Respondent no.2 rejected the application by an Order dated 16.09.02. The reason for rejection of the application for regularisation as spelt out in the impugned Order is that the Nallah over which the steel fabricated bridge is erected, is not part of the property of the Petitioner, though the same has been claimed by the Petitioner to be belonging to it on the basis of an old cadastral Survey Plan. After rejecting the -3- application for regularisation, the Respondent no.2 proceeded to direct the Petitioner to demolish the structure. Aggrieved by Order dated 16.09.02, the Petitioner preferred an appeal before Respondent no.1. The Respondent no.1 concurring with the view taken by the Respondent no.2, has confirmed the Order and dismissed the appeal. The Appellate Authority has held that the ownership of the Nallah vests with the Government or the local Authority as per the Survey documents and hence an individual does not have any right to encroach on public land. 2. Various contentions are raised by the learned Counsel for the writ Petitioners touching the ownership of Nallah. Reliance is also placed on a Division Bench Judgment of the Bombay High Court reported in Nawab Sardar Narharsingji v. Secretary of state (AIR 1941 Bombay 161) with a view to buttress the submission that the Petitioner is owner of half a portion of Nallah whereas the other half would belong to the plot owner on the other side of the bridge who has given No Objection to the Petitioner to erect the bridge. The above contentions touching the ownership of the Petitioners to the Nallah is vehemently opposed by the learned Counsel for the Respondent by contending that the Petitioner has failed to establish its ownership over the Nallah which, according to the Respondent, is a public property. What is to be seen is that the Petitioner has not carried out any construction in the Nallah as such. The step bridge is laid with a view to cross over a Nallah from one side to another. On the one side of the bridge, there is a property of the Petitioner whereas on the other side of the bridge, there is property of a person who has no objection for laying of the bridge. In this situation, I am of the -4- considered view that the question of ownership of Nallah is wholly insignificant. The construction, if I may say so, is in the land of the Petitioner and the other owner who has consented to the laying of the bridge. The only thing is that the bridge is laid over the Nallah for crossing over. Both the authorities below instead of considering the application for regularisation in its proper prospective, have wrecked up the issue of ownership of Nallah. Assuming that the ownership vests with the Government or the local Authority, as no construction has been erected in the Nallah, there cannot be any reason to object to the construction just because the construction passes over the property of the Government or the local Authority. As the very inquiry under Section 52(2) is misdirected into the aspect of ownership of the Nallah, I deem it appropriate to quash and set aside the Order passed by the Respondent no.2 so also the order passed by the Appellate Authority, the Respondent no.1 and remand the matter back to the Respondent no.2 for a de novo inquiry and decision on the application filed by the Petitioner under Section 52(2) of the Town and Country Planning Act. The Respondent no.2 shall, after affording opportunity of hearing to the Petitioner, decide the application within a period of two months from today without going into the question of ownership of the Nallah. 3. Rule made absolute in the above terms. A. P. DESHPANDE, J. arp/*