Fomento Resorts and Hotels Ltd. and Others vs Village Panchayat of Taleigao Shri Antonio Lucas Rodrigues and Others

Leave to amend the application in terms of para 35-F of the petition. Heard the learned Counsel on behalf of the parties. By our Order dated 23.04.07, we had indicated the need to appoint a Commissioner for the purpose of finding out whether the construction of the wall being carried out by the respondent-Panchayat in the nallah was at all required.

The learned amicus curiae has suggested the name of Shri K.D. Sadhale, Architect, who has consented to be the Commissioner and regarding whose appointment there is no objection from any of the parties to the petition.

We, therefore, consider it appropriate to appoint Shri K. D. Sadhale, Architect, Chirantan, Khadapabandh, Ponda, Goa to survey the nallah adjacent to Survey No. 803(old) and the path alongside the nallah which is allowed to be paved by our Order dated 3.4.07 and to report :

(a) Whether the construction of the wall being made by the respondent-Panchayat in the nallah is necessary to protect the nallah, the embankment and the people passing on the way from falling into the nallah; and Whether the said wall is appropriate and would not damage the nallah or interfere with the drainage of the said nallah ?

(b) To find out whether the petitioners have carried out the construction of any chambers or any development or construction in the said nallah which is unauthorised or illegal or which will damage the nallah or interfere with its drainage.

The inspection to be carried out in presence of the representatives of the petitioners, as well as the respondent-Panchayat. The report to be submitted within a period of three weeks. Bill to be submitted by the Commissioner shall be paid by the petitioners.

It was stated across the Bar that the nallah remains dry in the summer season and that there has been no reported incident of anyone falling into the nallah whilst using the way which is now being paved.

Be that as it may, it was contended before us by Shri Dada, the learned Senior Counsel on behalf of the petitioners that the nallah is part of the property of the petitioners and any construction in it will amount to invasion of their proprietory rights. This submission was made relying upon the Cadastral survey plan of survey No. 803, which corresponds to new survey number 246/1. Reliance was also placed on an order of learned Single Judge of this Court dated 17.4.2003 passed in Writ Petition No. 165/03, as confirmed by order dated 5.6.03.

We are not impressed with the said submission of the learned Senior Counsel made on behalf of the petitioners.

There is no dispute that the land allotted to the petitioners, on certain terms and conditions, was acquired by the Government. Shri Nadkarni, the learned Counsel on behalf of the respondent-Panchayat has brought to our notice the Notification by which the property was acquired by the Government and allotted to the petitioner (at page 218 of the paper book) and which shows that what was acquired was survey No. 246/1, corresponding to Cadastral Survey No. 803, with its eastern boundary as nallah and likewise survey No. 245/2, corresponding to old survey No. 804, having its western side as nallah and river Zuari. Shri Nadkarni has also brought to our notice the show cause notice dated 8.7.02 issued to the petitioners and one M/s. Britto Amusements Private Limited, as well as the Order dated 16.9.02 of North Goa Planning and Development Authority, Panaji and the Order dated 17.3.03 of the Town and Country Planning Board, Panaji. The show cause notice refers to the nallah as belonging to the local authority. In other words, it does not show that the nallah belongs to the petitioners. The order dated 17.3.03 of the Town Planning Board also shows that the ownership of the nallah vests with the Government local authority as per the survey documents.

It may be noted that the show cause notice dated 8.7.02 and the hereinabove, but we must hasten to add that the only order which has been made in the said writ petition is that the bridge across the said nallah should not be dismantled. In our view, the aforesaid three documents namely, Notification dated 26/10/1983, show cause notice dated 8.7.02 and Order dated 17.3.03 to which reference has been made, prima facie, do show that the nallah is not the property of the petitioners.

Next, it is alternatively contended on behalf of the petitioners that in case the nallah is not the property of the petitioners, then by virtue of Section 14 of the Goa Land Revenue Code, 1968 the nallah would be the property of the Government. Referring to Section 159 of the Goa Panchayat Raj Act, 1994, it is submitted on behalf of the petitioners that no direction as contemplated by Section 159 of the said Act has been made so as to vest the said nallah in the respondent-Panchayat and therefore the nallah/drain cannot vest in the Panchayat.

On the other hand, on behalf of the respondent-Panchayat reliance has been placed on Section 65 of the Goa Panchayat Raj Act, 1994, which reads thus:

Power of Panchayat as to roads, bridges, etc. - All village roads and bridges thereon, cart tracks, drain, well and other public places in the Panchayat area not being private property and not being under the control or management of Zilla Panchayat, or Municipal Council, or the Government shall vest in the Panchayat and the Panchayat may do all things necessary for the maintenance and repair thereof, and may, -

(a) layout and make new roads;

(b) construct new bridges;

(c) widen, open, enlarge or otherwise improve any such roads or bridges;

(d) with the previous sanction of the Zilla Panchayat divert, discontinue or close any road or bridge; and

(e) deepen or otherwise improve any water way:

Provided that no road or bridge shall be diverted, discontinued or closed before the Panchayat publishes its intention of doing so and calls for objections and obtains the approval of the Zilla Panchayat to which a copy of the resolution of the Panchayat and the objections thereto shall be forwarded.

A bare reading of Section 65 of the Goa Panchayat Raj Act, 1994 as reproduced hereinabove, prima facie, shows that after coming into force of the Goa Panchayat Raj Act, 1994 all village roads and bridges thereon, cart tracks, drain, well and other public places in the Panchayat area not being private property and not being under the control or management of Zilla Panchayat, or Municipal Council, or the Government shall vest in the Panchayat and that being the position, prima facie, in our view, the nallah/drain vests in the Panchayat in terms of Section 65 of the Goa Panchayat Raj Act, 1994 (emphasis supplied). It is nobody''s case that the nallah was at any time under the control of the Government.

On behalf of the petitioners, it was next contended that the construction of the wall being done by the respondent-Panchayat is a development as defined by Section 2(10) of the Goa Town and Country Planning Act, 1974 for which permission in terms of Section 44(2) thereof, would be required. On behalf of the respondent-Panchayat it was contended that by the construction of the said wall, all that the Panchayat was doing was the work of renewing the drain, as contemplated by Clause (b)(ii)(b) of Section 43, for which no permission was required in terms of the proviso to Section 43. The relevant proviso states that no permission u/s 44 of the Goa Town and Country Planning Act, 1974 would be necessary:

(i)....

(ii)....

(a)

(b) any work for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose;

It may be stated that on behalf of the respondent-Panchayat a letter Goa Planning and Development Authority who has opined that no development permission is required u/s 44 of the Goa Town and Country Planning Act, 1974 as works, in question, are covered u/s 43(b)(ii)(b) of the said Act. Shri Dada, the learned Senior Counsel on behalf of the petitioners has submitted that the opinion given by the Member Secretary is his personal opinion and the same cannot be considered to be a decision of the North Goa Planning and Development Authority which is constituted in terms of Section 20 of the Act and which has a number of members, including the Members of Legislative Assembly, representing the planning area and representatives of local authorities, including a representative nominated by local authority, etc., as mentioned in the said section. Shri Nadkarni, learned Counsel on behalf of the respondent Panchayat has been unable to make any statement whether any meeting was held of the said authority as constituted u/s 20 of the Act before the opinion was given by the Member Secretary. Shri Dada has also brought to our notice the powers and functions of the Member Secretary of the Planning and Development Authority as laid down in Rule 9 of the Town and Country Planning Rules, 1977 and contended that the said opinion cannot be considered as the opinion of the Planning and Development Authority.

We have perused Rule 9 of the aforesaid Rules which sets out the 20 of the Town and Country Planning Act and we are of the prima facie view that the opinion given by the letter is that of the Member Secretary and cannot be termed as the decision of the North Goa Planning and Development Authority.

Section 44 of the Goa Town and Country Planning Act, 1974 provides that any person intending to carry out any development in respect of, or change of use of, any land shall make an application in writing to the planning and development authority for permission in such form and containing such particulars and accompanied by such documents and plans as may be prescribed. Clause (a) of sub-Section (2) of Section 44 of the Act further provides that in case of a Department of the Central or Union Territory Government or local authority intending to carry out any development in respect or, or change of use of any land, the Department or authority concerned shall notify in writing to the Planning and Development Authority of its intention to do so, giving full particulars thereof accompanied by such documents and plans as may be prescribed at least two months prior to the undertaking of such development of change, as the case may be, and shall obtain permission in respect thereof.

It is certainly not the case of the respondent-Village Panchayat construction of the wall, prior to the commencement of the works.

From the affidavit filed on behalf of the respondent-Panchayat and the photographs produced on behalf of the parties which we have perused, prima facie, it cannot be said that the respondent-Panchayat is doing the work of maintenance of nallah or renewing the drain so as not to require any permission as otherwise contemplated by Section 44 of the Act. Prima facie, we are of the view that the work undertaken by the respondent-Panchayat in the drain by constructing the wall away from existing retaining wall and thereafter having plans to fill in the portion in between the way which is being paved and the said wall would amount to development as defined by Section 2(10) which would require permission as contemplated by Section 44 of the Town and Country Planning Act, 1974. The respondent-Village Panchayat, as a local Authority, cannot be above the law of Section 44 of the Town and Country Planning Act.

On behalf of the petitioners, Shri Dada seeks leave to amend the petition so as to challenge the said letter/opinion of the Member Secretary dated 25/4/07 or file a fresh petition as may be advised. The petitioners are at liberty to do so.

We are unable to understand as to how from the close of the hearing yesterday afternoon and today the respondent-Village Panchayat was able to secure the said opinion from the Member Secretary, and the conduct of the latter in issuing the same, without placing the letter dated 24.4.07 of the respondent-Village Panchayat before the North Goa Planning and Development Authority and the need to have acted in such a hurry.

Considering the facts of the case, we deem it appropriate to join Shri Rajesh Naik, Member Secretary of the North Goa Planning and Development Authority, Panaji as party-respondent to the Petition and the application. We direct the said Member Secretary to file an affidavit on oath, and produce relevant file on the basis of which the said opinion was given, for our perusal on 1st May, 2007 and also to disclose the circumstances in which the said opinion came to be given in such hurry without consulting the Authority.

The petitioners undertake to communicate this order to the said Member Secretary and the Commissioner.

Although it is submitted on behalf of the respondent-Panchayat that in the light of said letter dated 25.4.07, there is no case to continue the order dated 23.4.07 directing the respondent-Village Panchayat to maintain status quo in respect of the wall under construction in the said nallah, we are inclined not to grant such a request. In our opinion, the order dated 23.4.07 directing the respondent-Village Panchayat to maintain status quo in relation to the wall, in question, shall continue until further orders. The respondent-Village Panchayat will always be at liberty to apply for modification of this order after the Commissioner appointed by us gives his report or in case the respondent-Panchayat is able to secure the development permission from the North Goa Planning and Development Authority, as contemplated by Section 44 of the Goa Town and Country Planning Act, 1974. Needless to observe, if any request is made by the respondent-Panchayat to the North Goa Planning and Development Authority, Panaji for development permission, the same will be considered by the said Authority on its own merits, and without being influenced by the observations made herein. S.O. 1st May, 2007 for filing affidavit. Let the matter come on board after the Commissioner submits his report, after vacation. Copies of this order, duly authenticated by the Sheristedar, be issued to the parties and the learned amicus curiae, as desired by them.