AMIT JUNEJA & ORS. Vs. STATE OF GOA & ORS.
LAWS(BOM)-2017-8-77
HIGH COURT OF BOMBAY (AT: PANAJI)
Decided on August 08,2017

Amit Juneja And Ors. Appellant
VERSUS
State Of Goa And Ors. Respondents

JUDGEMENT

F.M.REIS,J. - (1.) Both the above Writ Petitions were taken up together as the issues involved in both the petitions are stated to be identical.
(2.) Briefly, it is the case of the petitioners that on 22.08.2009 the petitioner no.1 addressed a letter to the Sarpanch of the Village Panchayat of Taleigao asking her to produce the documents for verification for change of user of the recreational area. Thereafter, on 26.08.2009 the petitioner addressed a letter to the North Goa Planning and Development Authority asking them to survey the open space and withdraw the approval in favour of the builder to avoid encroachment in the open space. Subsequently, the petitioner filed an application under Right to Information Act to the Town and Country Planning Department to provide a certified copy of the ODP approved on 01.02.2006. The petitioner thereafter received a certified copy of the ODP plan from the Town and Country Planning Department and thereafter filed an application seeking certified copies of the various documents to the NGPDA. Subsequently, on 29.09.2009 the petitioner received from the Public Information Officer of the Town and Country Planning Department to provide the last approved sub-division of S.M.K. complex ( Phase I and Phase II ) stating that the last approved sub- division plan cannot be made available as the file is untraceable. Ultimately, the petitioner sought for a survey report from the Surveyor Mr. Prazeres Gonsalves of the encroachment of the open space along with the plan on 03.10.2009. Mr. S. N. Bhobe also submitted his findings showing the encroachment in the open space in another report dated 05.10.2009 and that the construction put up by the private respondent nos. 5 and 6 was contrary to the statutory regulations. The petitioners accordingly filed the above petitions inter alia seeking directions to the respondent nos. 2, 3 and 4 to take action against the respondent nos. 5 and 6 to forthwith stop the illegal construction. As an interim relief was not granted the petitioners incorporated the subsequent events in the petition and sought to quash and set aside the order dated 25.01.2011 or any permission or licence granted by the authority. The respondent no.2 filed his affidavit through the Member Secretary of the NGPDA. He has stated that in the year 1986, in view of the high tension line passing through the property under survey No.279/1 of Village Taleigao, the respondent no.5 had applied for a revision/reconstitution of plot to the then Panaji Planning and Development Authority. The said Authority by an order dated 17.11.1986 issued a No Objection Certificate for reconstitution of plot nos. 72, 78, 275, 276 and 277 by shifting from their original position. The approval for reconstitution was granted by the then Panaji Planning and Development Authority in terms of the law after complying with the necessary procedure. It is also pointed out that plot no.78 which was reconstituted does not fall either within the open space or the recreational area. It is also pointed out that the Development Authority had issued a No Objection Certificate under Section 49(6) of the Goa, Daman and Diu Town and Country Planning Act, 1974 for registration of a sale deed in respect of plot no.78 in the land bearing survey No.279/1 of Village Taleigao. It is also pointed out that pursuant to the application dated 13.07.2009 the site inspection was carried out by the concerned officer of the authority and thereafter the said proposal was placed at the meeting held on 16.07.2009 and accordingly by order dated 27.07.2009 a development permission for construction of a compound wall, swimming pool and a multi-family dwelling building in plot No.78 under survey no.279 of Village Taleigao came to be granted. It is also pointed out that in the meeting held on 02.12.2009 discussed with regard to the subject project was taken up and subsequently a show cause notice dated 18.11.2009 was issued to the respondent no.5 and it was decided to resurvey the entire sub-division layout through a competent authority and accordingly, addressed a letter dated 14.12.2009 to the Director of Land Survey and Settlement Records to carry out the survey of the sub-division layout and the property demarcating the open space of the portion of the sub- division. It is also pointed out that no development permission was granted to the respondent no.5 to carry out any development in the open space. A affidavit in rejoinder was filed by the petitioners inter alia disputing the contentions in the said affidavit. It is pointed out that no action was taken by the respondent no.2 on the complaint filed by the petitioners. It is also pointed out that the respondent no.2 ought to have taken immediate action with that regard. It is also pointed out that the expert Mr. Prazeres Gonsalves engaged by the petitioners has correctly shown the subject development in open space and the development is in an open space which cannot be permitted. The respondent no.2 also filed affidavit stating that respondent no.2 appionted Shri Umesh N. Phaldessai, registered Land Surveyor to demarcate the open space and the reconstituted plot no.78. The rejoinder to such affidavit is also filed by the petitioners. Affidavit of the power of attorney of the petitioners is also filed.
(3.) In Writ Petition No. 708 of 2009, the subject dispute is the same development which is the subject matter of the above Writ Petition. It is the basic contention that the construction is being put up in the open space.;


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