1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO.190 OF 2002 1. Shri Francis Paul Pereira, 2. Smt. Freeda Menezes, 3. Shri Arist Fernandes, 4. Smt. Agnes Pereira, all major in age, Indian Nationals, r/o. Caroi, Velim, Salcete, Goa. .. Petitioners. versus 1. The Dy. Collector & Sub Divisional Officer, Government of Goa, Margao, Salcete, Goa. 2.(a) The Health Officer/ Medical Officer, Primary Health Center, Government of Goa, Bali, Salcete, Goa. 2(b) The Director, Directorate of Health Services, Government of Goa, having office at Campal, Panaji, Goa. 2 3. The Chief Inspector of Factories & Boilers, Inspectorate of Factories & Boilers, Government of Goa, Altinho, Panaji, Goa. 4. The Chief Town Planner, Town & Country Planning Dept., Government of Goa, Old GMC Building, Panaji, Goa. 5. The Pollution Control Board, Patto, Panaji, Goa. 6. The Village Panchayat of Velim, through its Sarpanch, having office at Velim, Salcete, Goa. 7. Shri Elvino Menezes, major in age, Indian National, r/o. Caroi, Velim, Salcete, Goa. 8. Martinho Barreto, Colmorod, Navelim, Salcete, Goa. .. Respondents Mr. M.S. Sonak, Advocate for the Petitioners. Mr. S. R. Rivonkar, Government Advocate for Respondent Nos. 1, 2(a), 2(b), 3 and 4. Mr. Shivan Dessai, Advocate for respondent no.7 and 8. 3 CORAM: SMT. V.K. TAHILRAMANI & N.A. BRITTO, JJ. DATE : 6TH NOVEMBER, 2009. JUDGMENT (Per N. A. Britto, J.). 1. Rule. By consent heard forthwith. 2. In this petition, filed in public interest, the petitioners challenge the setting up of an ice plant in survey no. 107/28 of Velim Village, Salcette Taluka, by respondent no.7, and, the permissions granted for the purpose of running the same by the authorities namely respondent nos. 1 to 6. 3. The petition was taken up for hearing on various dates. On 2.9.2002 after respondent nos. 7 and 8 made a statement before this Court that they will not carry out any further construction with regard to the said ice plant/factory they were directed not to carry out any construction. That was at the stage when the respondent no.8 had applied for permission under Section 29 of the Goa Public Health Act, 1985. It was made clear that after the said permission was obtained by respondent nos. 4 7 and 8 they were free to apply to this Court to run the said ice plant, and, on 17.2.2003 when the matter came up before this Court, respondent nos. 7 and 8 were relieved of the said undertaking and thereafter pursuant to the permission obtained by respondent no.8 from the Director of Health Services dated 12.12.2002, that respondent no.8 is running the said ice plant pursuant to a sub-lease executed by him on 7.3.2002 with respondent no.7. 4. We have heard Shri Sonak, learned counsel appearing on behalf of the petitioners and the other counsels appearing on behalf of the respondents. Shri Sonak, learned counsel appearing on behalf of the petitioners submits that no inquiry was conducted by respondent no.1 Deputy Collector as contemplated by Section 32 of the Land Revenue Code, 1968. Learned counsel submits that the ice plant which is a factory run by the respondent no.8 has no permission which was required to be obtained under Section 6 of the Factories Act, 1948 r/w Rule 3 of the Rules framed thereunder. Learned counsel further submits that the said respondent nos. 7 and 8 in terms of Section 23 of the Public Health Act, 1985, were required to obtain prior permission but had not obtained 5 such permission when the petition was filed. Learned counsel also submits that the sanad of conversion dated 21.2.2002 given by the respondent no.1 on the very face of it shows that it was given without any application of mind and is fabricated by the said respondents, as can be seen from certain over-typings seen therefrom. Shri Sonak submits that sub-divisions 20 and 30 of survey no. 107 were portions of a paddy field and the remaining portions of that property continues to be paddy fields and the said property is surrounded on the remaining three sides by the residential houses which were in existence for decades and as such permitting conversion of land for industrial purpose was nothing but arbitrary and unreasonable exercise of power under Section 32 of the said Goa Land Revenue Code, 1968. Counsel further submits that a due inquiry was required to be held, and the concept of such inquiry would involve atleast of giving some notice to the residents of the locality by way of compliance with the principles of natural justice and fair play, which was not at all given in this case. Learned counsel submits that respondent no.1 ought to have refused the conversion sanad as setting up of an ice factory would be against public health, safety and convenience of the residents of the locality. 6 5. The petitioners produced a sketch or survey plan at page 28 of the paper book which shows the then proposed factory of respondent nos. 7 and 8 in sub-division no.28 in relation to the houses located in sub- division nos. 30, 31, 32, 33 and 34 of survey no.107 which are closest to the said factory. 6. Contesting the petition, respondent no.7, in his affidavit-in- reply, stated that the petition smacks of malafides on the part of the petitioners who have been put forward to file the present petition by the Goa Ice Manufacturers Association who by their letter dated 13.3.2002 had applied for certified copies of various documents regarding the project of the ice plant from the respondent-panchayat and obtained certified copies of certain documents and thereafter filed a complaint dated 18.3.2002 alleging that he was illegally constructing the ice plant in the paddy field without obtaining conversion of land, and change of zone as they did not want any business competition. Respondent no.7 stated that plot no.107/28 was on a higher level than the surrounding paddy fields and the same was lying fallow for several years and was falling in settlement zone as per the then Regional Plan. Respondent no.7 stated 7 that Village Velim was situated on the banks of river Sal which is known for fish business activity and there is a jetty at a distance of about one kilometre from the said plot of the respondent no.7. Respondent no.7 stated that the plot in question was in a settlement zone as per Regional Plan prepared by the Chief Town Planner under the Goa Town and Country Planning Act, 1974, and, as a first step towards the setting up of the ice plant he applied for permission to respondent no.1/Deputy Collector to convert the said plot to industrial use from existing residential use under Section 32 of the said Land Revenue Code, 1968. Respondent no.7 also stated that he obtained permission from the State Government for change of settlement zone to industrial zone. Respondent no.7 further stated that the petitioners made wild and irresponsible allegations that he had fabricated/manipulated the sanad and that his application filed to the respondent no.1/Deputy Collector clearly showed that he had sought permission to change the use from residential to industrial and the changes made by re-typing do not invalidate the document and in fact he had even paid conversion charges meant for industrial use in the sum of Rs.19,900/- @ Rs.20/- per square metre. Respondent no.7 stated that after obtaining the sanad dated 21.2.2002 the 8 respondent no.7 applied to the Panchayat for permission for construction and the same was given to him on or about 6.1.2002. Respondent no.7 further stated that the proposed ice plant was a small scale industry and he has registered the same with the Directorate of Industries and Mines and that he also obtained consent under section 21 of The Air (Prevention and Control of Pollution) Act, 1981 and Sections 25/26 of The Water (Prevention and Control of Pollution) Act, 1974. Respondent no.7 further stated that the process to manufacture ice was very simple and has described the process in para 11 of his said affidavit which, in our opinion, is not required to be reproduced herein, and, further stated that the proposed plant was to be manned by staff of about five persons and as such the Factories Act, 1948 would not be applicable to him. Respondent no.7 further stated that there was no health hazard at all involved and therefore he applied to the Directorate of Health services for permission under Section 29 of the Goa Public Health Act, 1985 and the same was granted to him. He further stated that by lease deed dated 7.3.2002 he has leased the plot to respondent no.8 for a period of forty years and authorized him to use the permissions obtained by him for the proposed ice plant, to run the ice plant and pursuant thereto the respondent no.8 9 was running the said plant and as such none of the grounds were available to the petitioners to stop the said ice plant set up by the respondent no.7. Respondent no.7 also stated that in survey no.107/30 he has his ancestral house and the property surveyed under no.130/28 was barren piece of land earlier and was not cultivated as a paddy field at all and had lost all traces of paddy cultivation and was a place fit for construction and therefore was zoned in the regional plan as settlement zone alongwith the property surveyed under no.107/30 and other adjoining plots of the petitioners and others, where residential houses are situated. 7. The respondent no.7 produced the permission for change of zone dated 30.11.2001, the conversion sanad dated 21.2.2002, construction license issued by the Village Panchayat dated 6.1.2002, etc. We also find on record an affidavit accompanied by inspection report given by Engineer Ernesto Moniz who inspected the side of the said plant and who has opined that the construction of the ice plant was limited to survey no.107/28 within the zone permitted in the regional plan and it did not extend to survey no.107/30 and the well existing therein. He has also opined that the water requirements could be be fully met from the 10 Government supply and that noise levels in plants similar to the plant proposed to be set up by respondent no.7 were within permissible level and such plants are permitted even in residential area and further stated that the house of the petitioners and of others are situated at a distance of about 30 to 70 metres from the said plant. No counter opinion was produced on behalf of the petitioners. 8. At the time of hearing Shri Rivonkar, learned counsel appearing on behalf of some of the respondents has submitted that the ice plant was inspected by the Inspector of Factories on 13.2.2009 and they found that only five employees were working in the said plant and therefore the plant/factory of the respondent no.7/8 would not come within the ambit of the Factories Act, 1948. The inspection note is placed on record. 9. The respondent no.5 has also filed an affidavit and has stated that consent was given by the respondent no.5 i.e. The Goa State Pollution Control Board under The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981, after scrutinizing the application and after confirming that the 11 proposed industrial plant was not likely to produce any liquid effluent or any gaseous emission, beyond the standards prescribed and notified by Ministry of Environment (Protection) Act, 1986. 10. The respondent no.1/Deputy Collector also filed an affidavit stating that an inquiry was held into the application filed by respondent no.7. Respondent no.1/Deputy Collector set out in the affidavit that the application filed by the respondent no.7 was sent to the Superintending Engineer, CADA Circle, the Mamlatdar of Salcette, Margao and the Senior Town Planner, Town and Country Planning, Margao, seeking from them various information and the authorities to whom the said information was sought informed that the land in question did not fall under command area or that there was no paddy cultivation in the said property and the Senior Town Planner had even recommended the conversion of 995 sq. metres and the Town and Country Planning Department had also informed that approval of the Government was accorded for the change of use of the land. As regards the typing mistake, the Deputy Collector stated that there was typing error in the condition no.3 of the sanad and also while typing the word “industrial” in the blank column and the same was corrected immediately. He denied 12 that there was any fabrication or manipulation of records and further stated that the entire procedure as laid down under the Land Revenue Code, 1968 was duly followed. 11. The Town Planner also filed his affidavit and stated that the Government/Town and Country Planning Board, after following due procedure as prescribed under Chapter III of the Town and Country Planning Act, 1974, accorded its approval for change in the proposed land by letter dated 16.10.2001 and the same was communicated to respondent no.7 and thereafter he informed respondent no.6 that there was no objection for the construction of the ice plant. 12. We are unable to accept any of the submissions made by Shri Sonak, learned counsel on behalf of the petitioners. The apprehensions of the petitioners that the permissions granted to the respondent no. 7/8 are contrary to the provisions of any of the laws referred to herein above or granted without application of mind, particularly by respondent no. 1/Deputy Collector needs to be rejected. The orders passed by this Court on 2.9.2002 and 17.2.2003 clearly indicates that only after obtaining prior permission, as required under Section 29 of the Public Health Act, 1985, 13 the respondent no.8 started the plant in the premises in question. The respondent no.7 has taken all necessary permissions and it appears that even the conversion sanad was granted to the respondent no.7 after following the normal procedure i.e. by inviting the comments of various authorities before granting the same. A notice to the residents of the locality before conversion application is granted may be desirable but Section 32 of the Land Revenue Code, 1968, does not require that any such notice or public notice is to be given, and, all that it requires is that a 'due inquiry” be made into the application filed. “Due” is always a relative term, and must be applied to each case in the exercise of the discretion of the Court. An inquiry is required so that an application can be rejected if the same will come in the way of securing public health, safety and convenience or in case the granting would be contrary to any scheme for planned development of the village concerned. The application filed by respondent no.7 was for conversion from residential to industrial use and respondent no.1/Deputy Collector has granted the same after usual inquiry. The over-typing has been sufficiently explained by the Deputy Collector. Required fees for industrial use were also paid. Before applying for the said permission or conversion sanad the 14 respondent no.7 had already in his hands, the permission for change of zone from residential to industrial. The respondent no.7/8 had done whatever was required to be done under the law. The other apprehensions expressed by the petitioners appears to be wholly unjustified that they have no basis and have been explained in the affidavit of Shri Moniz and the Pollution Control Board. The authorities after considering all aspects have granted permission to respondent no. 7/8. Prima facie, it appears that respondent no.7 is justified in contending that this petition was filed at the behest of the Goa Ice Manufacturers Association, as it is they who obtained information, as regards the plant, but did not pursue the matter further. 13. We, therefore, find that there is no merit in this petition at all. We find that respondent no. 7/8 have set up the ice place after taking all necessary permissions in accordance with law. Considering the facts and circumstances of the case, we proceed to dismiss the petition with costs of Rs.5,000/- to be paid by the petitioners to respondent no.7/8. In case there are any problems created by the ice plant of respondent no. 7/8, the petitioners are always free to approach the authorities concerned who are 15 bound to take action against them in accordance with law. 14. Rule discharged. V.K. TAHILRAMANI, J. N.A. BRITTO, J. oc