1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 843 of 2010 Mr. Ashley Fernandes & 9 Ors. ... Petitioners V e r s u s The State of Goa through Chief Secretary & 10 Ors. ... Respondents Mr. Nigel Da Costa Frias, Advocate for Petitioners. Mr. M. Salkar, Govt. Advocate for Respondent Nos. 1,3,4 to 7 and 11. Ms. P. Kamat, Advocate for Respondent No. 2. Mr. Sudin Usgaonkar, Advocate for Respondent Nos. 8 to 10. Coram: S.C. DHARMADHIKARI & F.M. REIS, JJ. Date: 15 th March, 2011. ORAL ORDER (per S.C. Dharmadhikari, J): By this petition under Article 226 of the Constitution of India, the petitioners have challenged the construction licence dated 02-01-2010 issued by respondent no. 2 and N.O.C. dated 05-11-2009 issued by respondent no. 4. 2 These are the licence and N.O.C. given by the local Panchayat and the Town Planning Department to respondent nos. 8 to 10. Further, the petitioners pray for revocation of these permissions for development and construction, granted to respondent nos. 8 to 10. This is in regard to Survey no. 17/3 of Village Cansualim, Mormugao, Goa. 2. The objection raised by private respondents is that, this petition is not in public interest as some of the petitioners are propounding private interest. Moreover, the petition should not to be entertained as Panchayat Petition has been filed by these petitioners before the Director of Panchayats, Panaji being Panchayat Petition No. 71/2010/A invoking the jurisdiction of the Director of Panchayats under Section 178 of the Goa Panchayat Raj Act. 3. Learned Counsel for petitioners highlighted three issues principally. He invited our attention to the N.O.C of the Town Planner and submitted that the traditional access 3 passing through the property is not shown in the site plan, sewerage treatment plant should be provided before issuance of completion certificate and adherence to terms and conditions of the Health Department. Similarly, 6 metres access shown in the site plan should be tarred. Further, he invited our attention to the allegation that the Town Planning Department has written to the Sarpanch of the Village Panchayat calling upon it to submit a revised plan showing the traditional access, which is not shown in the site plan, duly approved by the Town Planning Department. Therefore, respondent nos. 8 to 10 be directed to show the traditional access passing through the property. This condition imposed by the Town Planning Department is not added in the communication dated 05-11-2009 and therefore private respondents to this petition should obtain approval for the construction at site, after filing the compliance report. It is stated that no affidavit to this effect is filed by the Authority, but it is the private respondents who are supporting the Panchayat. 4 4. The private respondents pointed out on oath that compliance is made at site. So far as compliance report at site is concerned, it is stated that private respondents are already selling the constructed premises and they rely on the N.O.C. dated 8th November, 2009 wherein the Panchayat states that the approach road, from the public road to the construction site has been constructed by respondent nos. 8 to 10. However, no document has been produced. In the rejoinder it is pointed out by the petitioner that atleast two petitioners are directly affected by the interference with the traditional access and as far as the revised site plan is concerned, the Panchayat has not submitted the revised site plan showing the existing traditional access passing through the property. Reliance is placed on Annexure-P-1 and it is asserted that the approach road to the said project as shown in the approved plan is allegedly 10 metres but in reality the road is only 3 to 4.90 metres in width and is certainly not more than 5 metres and there is violation of circular dated 03-07-2009. 5 5. The learned Counsel appearing for the Panchayat, states that private respondent nos. 8 to 10 have done all compliances as per the terms and conditions mentioned in the licence issued by the Panchayat. 6. Our attention is invited to the direction of this Court issued in Writ Petition No. 372/2009; the Calangute United Social and Cultural Association through Anthony F. D'Souza (Petitioner) Versus State of Goa through Chief Secretary and 8 others (Respondents). Paras 5 and 6 of the order read thus: “5. Considering the facts and circumstances of the case, we direct the Chief Secretary, Government of Goa to issue appropriate instructions to the Chief Town Planner to the effect that before granting permission to the Housing Project/Developers/Constructors or Builders, a thorough site inspection shall be conducted. The Chief Town Planner/Town Planner shall, after getting personally satisfied with the site inspection report and other completion of formalities to proceed to grant permission accordingly. The site inspection memorandum should be drawn and 6 shall be part of the record of the Town Planning office. Henceforth, the office of the Chief Town Planner/Town Planners should not shift the burden on the concerned Village Panchayat in respect of the matter relating to the site and location over which the building is to be erected. The primary duty of the State and its Officer shall be discharged effectively and strictly in complete adherence to the provisions of law in the State We direct that the State should hold the Chief Town Planner responsible if any violation of this order is noticed 6. We hereby direct that till the said road is constructed 6 metres wide, no further construction will be permitted. Neither occupancy certificate shall be issued in respect of the constructed area. This order does not prohibit either of the parties to provide alternate road connecting to the site in accordance with law. Registry of this Court is directed to forward a copy of this order to the Chief Secretary. Compliance report on this order shall be placed on record by the State.” 7. We have also perused the conditions imposed in the construction licence issued by the local Panchayat. 7 Needless to state that the Authorities have to act in accordance with the order afore quoted. All certificates including completion certificate have to be issued only if respondent nos. 8 to 10 complete the project in accordance with the terms and conditions of the licence and Approvals of the appropriate Authority. 8. The direction of this Court is in public interest and for public safety. There should be no obstruction to free and smooth flow of traffic and access to the traditional village houses and the same cannot be blocked. The Panchayat has to ensure that the traditional access remains intact. The builders and developers must satisfy the terms and conditions of the Town Planning Department. The Town Planning Department must ensure that the N.O.C. is adhered not only by the Panchayat but also by builders and developers. Therefore, respondent nos. 8 to 10 will have to abide by all terms and conditions of the construction licence of the Village Panchayat and N.O.C. issued by the Town Planner. If the terms and 8 conditions are violated by respondent nos. 8 to 10, the Authority should not issue the occupancy certificate. 9. We find from the record that, there is no fault on the part of the Town Planning Department, but, it is the Panchayat which is supporting the builders and developers/owners. However, in the matter of this nature, this court should not be compelled to issue directions to the authorities to act in accordance with law. All licences and permissions should be issued in ecological and environmental interest and in the interest of general public. 10. In a project of this nature, since it is stated that there will be 46 dwelling units and the builders and developers state on affidavit that third party rights are created and about 27 prospective purchasers have agreed to purchase premises in the building project, so also there is construction of stilt and three upper floors, the authorities concerned to inspect the site and ensure compliance of all the terms and conditions and not 9 to wait until the entire construction is completed. 11. In these circumstances, we direct the Authority to strictly abide by the directions and conditions mentioned in the licence and N.O.C. so also Planning and Development Authority (Development Plan) Regulations 2000 particularly the requirements stipulated therein with regard to the access and related matter. 12. We dispose this petition accordingly. Needless to state that these directions being comprehensive in nature, the Director of Panchayats to dispose of the pending appeal in terms of this order. S.C. DHARMADHIKARI, J. F. M. REIS, J. Ev