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Judgment
S. C. Dharmadhikari, J.—By this writ petition under Article 226 of the Constitution of India, the petitioners seek a writ of mandamus directing respondents no.1 and 2 to forthwith recall and cancel the development permission granted by the South Goa Planning and Development Authority to respondent no.4 on 1st November, 2011. The petitioners are residing and have their properties bearing plot nos.1 to 5 admeasuring about 638 square metres situated at Aquem Alto, Margao, Salcete Goa which is more particularly described in Annexure A of the petition. It is not necessary to refer to the rights of the petitioners in respect of the properties at annexures A to C in details because the same are not in dispute.
Equally, the private respondent no.4, which claims to be a charitable trust, is also claiming property plot no.2 in the sub-divided portion. This Trust applied for development permission to respondent no.2 for construction of a temple in anticipation of purchase of the said plot. The permission was sought for construction of a temple and a community centre.
It is the case of the petitioners that this permission was initially rejected by the South Goa Planning and Development Authority firstly on the ground that the subdivided plot had an access of only 6 metres'' width while the minimum width required was 8 metres and secondly on the ground that parking facility was inadequate, as there was provision made for only 4 spaces of parking as against 32 spaces required. The petitioners then urged that there are some file notings, which have been maintained and notwithstanding the fact that the proposed plans did not meet the requirement of providing 8 metres wide access, the development permission was granted on 22nd May, 2007. Thereafter, the construction licence was granted by Margao Municipal Council based on this development permission. The construction activity commenced, the petitioners objected to the same urging that it would result in traffic congestion and several inconveniences. The petitioners pursued the matter with the authorities and ultimately, it is, therefore, the stop work notice was issued directing respondent no.4 that the construction activities at site be stopped.
However, there were proceedings involving respondent no.4 and respondent nos.1 and 2 and after the matter was carried by respondent no.4 to higher authorities, it is stated that the orders of respondent no.2 were set aside and the matter was directed to be reconsidered by them. It is stated that there was also show cause notice issued as to why the development permission should not be rejected and there was order of revocation of development permission, which was challenged by way of an appeal and the matter was remanded back to second respondent. A notice was issued for personal hearing and upon a representation by respondent no.4 and undertakings with regard to the provision of portion of land for proposed 10 metres O.D.P. Road that the construction activity has been permitted to be carried on and our attention is invited to the said undertakings and the order dated 1st November, 2011, which is now sought to be impugned.
With the assistance of learned Senior Counsel appearing for the petitioners and respondent no.4 and learned Counsel appearing for second respondent, we have perused the relevant documents and annexures to the writ petition, so also, some of the affidavits. We have perused the provisions of Goa Regulation of Land Development and Building Construction Act, 2008 and the Goa Land Development and Building Construction Regulation, 2010.
The objections that are raised before us pertain to the approved plans being violated inasmuch as the sanction and approval was granted on the basis of certain number of pillars and the construction activity based thereon. However, it is alleged that the construction is not being carried on in accordance with the sanctioned and approved plan, but in violation thereof. The plan was shown to us by Mr. Lotlikar today and he states that he has received instructions from the petitioners to inform the Court that the plans annexed as Annexure to the writ petition and particularly at page nos.91 and 129 of the paper book, do not reflect the construction activities being carried on and it is true position at site. Equally, Mr. Nadkarni, learned Senior Counsel appearing for fourth respondent, states that this is nothing but a desperate attempt to stall the construction activity, which is being carried on in accordance with the zonal requirements, the approved plan with due regard to the maintenance and provision for parking and avoiding of traffic congestion. There is no question of any violation of the plans or any breach thereof and the plans have been sanctioned on 22nd May, 2007. Several attempts have been made by the petitioners to stall and stop the construction activity at site. Equally, it is alleged by him that as far as O.D.P. Road is concerned, not only there is obstruction by the petitioners by their construction made and it would be required to be demolished. As far as respondent no.4 are concerned, they are fully cooperating with the authorities and would provide for required area by surrendering the same so as to facilitate making and constructing of 10 metre wide O.D.P. Road. However, it is stated that at no stage, the nature of the construction was objected to as it is permissible under the zoning regulation. Therefore, it should not be that this Court interferes with the construction activity on various disputed questions of facts, some of which are sought to be reagitated again and again.
The only relevant factor, in our view, was whether the planning authority while sanctioning or approving plans so also granting development permission adhered to and had regard to all the proposals, which were incorporated in the existing development plan so also, the proposed one. Equally, we are concerned with the fact that whenever the construction activities are permitted in narrow stretches of lands or lands, which have frontage of public road, then, lack of parking facilities and due to any commercial activities are carried on, there should be no hindrance or obstruction the smooth flow of traffic. There is a dispute raised as to whether the requirement under the zone demarcation is maintaining of 8 metres access road to the plot or whether it is 6 metres wide. Mr. Nadkarni would urge that the zonal regulation stipulates some provision for the road with specific width. However, unless the plots and construction is on the basis of the subdivision of a larger property, if permissible by law and when subdivided plots have to be accessed, the requirement is not of 8 metres width road, but 6 metres width road. We need not examine this aspect in further details because the dispute essentially is based on factual matters. It is not necessary for us to go into the question, particularly when the development permission has been granted in 2007, the construction activity is in progress substantially and when the planning authority is not prohibited in law even at this stage in taking appropriate steps and measures to ensure that the provisions of the Goa Regulation and Development of Building Construction Act, 2008, so also, the Regulations framed thereunder are duly complied with. It is not in serious dispute that ongoing construction activity has to meet the requirement of the approved and sanctioned plan and development permission. Any violation and breach thereof if noticed, when the construction activity is in progress, will not prevent the planning authority from taking steps or taking measures or actions as are permitted under the Law. It is not for us to consider as to whether the approved plan in this case allowed putting up of only 8 pillars and construction but, actually at site there are 10 pillars. If there is any violation or breach of approved plan, on the basis of the complaints that the petitioners would make to the authorities or even suo motu, the authorities can initiate such measures so that there is no congestion caused by the construction activity and that people are not deprived of the usage of the existing road by encroachment or construction activities, which are in progress or by reducing the width thereof. In such circumstances, we do not deem it fit to entertain the petition in the light of such factual objections.
The next anxiety of the petitioners'' Counsel was that respondent nos.1 and 2 have also obtained undertakings or statements of respondent no.4 that as and when the construction activity is completed and they apply for completion and occupation certificate, if at that stage, the authorities require respondent no.4 to surrender such portions of lands or areas even under construction, they would make them available by surrendering them so that 10 metre wide road proposed can be made.
Mr. Lotlikar would urge that such undertakings have no meaning when the construction activity is in progress as they would be completed soon. Once it is completed and the user is commenced, the temple becomes functional and operational, on the ground of various factors such as religious sentiments etc., it would not be possible for the planning authority to enforce the undertakings or insist on compliance of the requirement of development plan. We do not hold that ongoing activity is as per approved plan or violating it. Even if it accords therewith, all measures for ensuring that road which is proposed in the development plan is made can be taken. Even religious structures or properties can be acquired and that is the law of the land. There is no mandate that when the said activities are undertaken, because of religious sentiments, the planning authority or any functionary is prohibited from exercising their powers. All such powers are exercised for public good and in public interest. In these circumstances, if the undertakings have been given, then, the planning authority must ensure that such undertakings are duly complied with before any religious activity or usage of the said property by respondent no.4 as temple is commenced. All such certificates, proposals and approvals can be withheld unless and until respondent no.4 complies with its undertakings given to the planning authority. Additionally, we incorporate the undertakings given by respondent no.4 to the statutory authorities shall be construed as undertakings to this Court in terms of the instructions that are received by Mr. Nadkarni and statements that he reiterated before us. Therefore, respondent no.4 shall not commence the usage in terms of the approved plan or undertake religious activities in the temple unless and until it complies with the undertakings and surrenders the portion of land and if required, by demolishing construction already carried on so as to enable the planning authority to make 10 metre wide O.D.P. Road. Equally, the petitioners will have to do so if they are also required to surrender and hand over the portions of their property. We do not see how merely because a religious structure is coming at site, the planning authority cannot make the O.D.P. Road of the width that is proposed by it.
As far as the construction activity, which is being carried on at site is concerned, it would be open for the planning authority to examine the complaints made by the petitioners and reiterated orally today with regard to ongoing construction not meeting the requirements or rather violating the sanctioned and approved plans. If such a complaint is made, then, after considering the objection of the petitioners and hearing respondent no.4 and carrying out any site inspection, the planning authority can take necessary action and measures in accordance with law including issuing further notices to stop work or revoking the sanction/ approval granted earlier. All the contentions of both the sides in relation to such issue, are also kept open.
The last issue that was raised by Mr. Lotlikar is with regard to inadequate parking facility. Mr. Nadkarni countered this by stating that adequate parking facility is provided. Even if such an issue has to be examined by the planning authority when the construction is going on, it shall do so and nothing prevents it from ensuring that the facilities, if found inadequate, should be provided to the extent required by law and considering the width of the road and existing size thereof so also, the pressure on the existing amenities and facilities.
In view of above, we do not deem it fit to entertain and keep this petition pending. For doing so would mean that this Court substitutes itself as planning authority and undertakes all the tasks and duties as are undertaken by the said planning authority in accordance with law. All that this Court is ensuring is that the complaints with regard to ongoing construction activities being in violation or breach of the sanctioned plans or approvals or development permission are taken cognizance of. The complaints be considered and examined as expeditiously as possible and within two months from today. If law requires that such complaints have to be dealt with by prescribed procedure, our orders and directions shall not be construed as giving go bye to it. All that we want is to ensure that the matters are not kept pending so as to inconvenience either public or private purpose.
Since some debate was raised with regard to the undertakings and the nature thereof and it is contended by Mr. Lotlikar, learned Senior Counsel for the petitioners that the undertakings as incorporated earlier, are not adequate and are insufficient and rather misleading, it is directed that respondent no.4 shall file undertakings in terms of the statement made today by them and incorporated in this order. Such undertakings shall be accompanied by a resolution of the trustees and the same shall be placed on the file of this Court within 10 days from today. The undertakings as incorporated earlier will contain a statement that if at the land including the portion on which construction is presently being carried on or parcels or parts thereof is required to be surrendered, the same will be duly done as and when required and within a period of one month from the date of receipt of such communication or notice from the planning authority. Equally, if any portions, which are vacant and not occupied by any construction or Building, will also be surrendered and the undertakings to incorporate a statement in relation thereto. The Writ Petition is disposed off in terms off in terms of the above directions and clarifications. No costs.