Miss Fawia Menezes Mesquita And ... vs The State Of Goa, Through Its Chief ...
2007 Latest Caselaw 249 Bom

JUDGMENT

S.A. Bobde, J.

1. Heard.

2. At the outset, Mr. Nadkarni, the learned Counsel for the respondents states that the prayer Clauses (A) and (B) are infructuous since the Government has withdrawn the Notification dated 10.08.2006.

3. Mr. Thali, the learned Counsel for the petitioners however prays for the relief in terms of prayer Clause (G) and prayer Clause (I) which read as follows:

G. To issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ or order or direction, directing the respondents to prepare the Land Use Register and Land Use Map in accordance with the provisions of the Town and Country Planning Act, 1974, and the Goa Town and Goa Country Planning (Planning and Development Authorities) Rules, 1977, before preparing or revising any Regional Plan or any Development Plan or any other plan under the said Act and the Rules.

I. To issue a direction to the respondent No. 4, restraining the respondent No. 4 from granting any permissions based on the Draft Outline Development Plan for Vasco-da-Gama planning area (redesignated as Mormugao Planning Development area).

4. As regards prayer Clause (G), the learned Counsel for the petitioners has produced the Land Use Register and Land Use Map in Court. The Land Use Map has not been filed, but the official correspondence and the publications leading to the preparation of the Land Use Register and the Map have been filed. The compilation is taken on record and marked X for identification. It appears from the correspondence that the authorities have been meeting since October, 2006 for preparation of Land Use Map. They have also invited objections for the preparation of that Map and passed resolution for adopting the Map and Register under the Town & Country Planning Act. It is therefore not necessary to consider granting any relief in terms of prayer Clause (G). As regards prayer Clause (I), it is the contention of the learned Counsel for the petitioners that the respondent No. 4 should be prevented from granting any permission based on the Planning Development re-designated as the Mormugao Planning Development area since the draft Outline Development Plan has not achieved any finality. There is no doubt that permission cannot be granted based solely on the draft Outline Development Plan of Vasco-da-Gama planning area. However, there is no merit in the contention that no permission can be granted unless the Outline Development Plan is finalized. Section 44 of the Town and Country Planning Act reads as follows:

Grant of permission.-(1) 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 accompanies by such documents and plans as may be prescribed.

...

(4) The Planning and Development Authority in dealing with the applications for permission under this section shall have regard to

(i) the provisions of any Development Plan which has come into operation;

(ii) the proposals or provisions which it thinks are likely to be made in any Development Plan under preparation, or to be prepared;

(iii) to the relevant bye-laws or regulations of the local authority concerned; and

(iv) any other material consideration.

It is obvious from Sub-section (4) that the Planning and Development Authority must deal with the applications for permission under this section having regard to the proposal of the provisions which it thinks fit are likely to be made in any Development Plan under preparation, or to be prepared. So also Section 55 reads as follows:

55. Interim provision pending preparation of Development Plan. -Where a Planning and Development Authority, in the exercise of its functions and powers with respect to any area under it, is required to have regard to the provisions of a Development Plan before such Development Plan has become operative, the Planning and Development Authority shall have regard to the provisions which in its opinion will be required to be included in such plan for securing the proper planning of the concerned area.

5. Obviously the aforesaid provisions namely Sections 44 and 55 require the Planning Authority to have regard to development plans under preparation, that is draft development plans.

6. Mr. Thali, the learned Counsel for the petitioners however submitted that the respondents are likely to grant permission in a way that may ultimately be contrary to final development plan. This submission is not justified. Obviously, when the Planning Authority considers the grant of permission, with reference to a Draft Development Plan, it will have to grant or withhold permission having regard to the designated use of that land in the proposed draft. It cannot do so contrary to the draft plan. However, if the use of the land in the Draft Development Plan has to be altered, the proposed alteration would again have to be notified and objections would have to be invited. In any case, to obviate any apprehension, Mr. Nadkarni, the learned Counsel for the respondents stated that any permission which is given pending finalization of the Draft Development Plan and its finalization, will be provisional in nature and specifically made subject to the provisions of the Final Development Plan which is yet to be finalized.

7. Mr. Thali, the learned Counsel for the petitioners brought to our notice a letter dated 14.9.06 written by the Chief Town Planner to the Member Secretary, Mormugao PDA, which suggests that the Outline Development Plan of Vascoda-Gama Planning Area notified under Section 35 of the Town & Country Planning Act shall be adopted and put into operation by the Development Authority . This letter clearly suggests that the Government intends to put into operation the draft Notification. This view of the Government seems to have been reiterated by the affidavit of the Member Secretary of the Mormugao Planning Development Authority Shri R.K. Pandita in Contempt Petition No. 12/2006 where this officer has referred to the aforesaid communication dated 14.9.06 and has stated that in accordance with the directives of the Government, the Outline Development Plan of Vasco-da-Gama Planning Area has been adopted and put into operation by the Mormugao Planning and Development Authority.

8. On the other hand, the same officer has stated on oath before us in this petition in his affidavit dated 12th March, 2007 in paragraph (b) as follows:

b) I state that the Petitioners other challenge in the Petition to the Outline Development Plan for Mormugao Planning area is premature as Government is yet to approve the said Plan, on this ground alone Petition is liable to be dismissed as not maintainable in law:

9. We are surprised at the carelessness if not the deliberate mis-statement to the effect that the draft development plan has been put into operation. Such a position would have been completely illegal. Fortunately, the officer has, in the affidavit before us, clarified the matter and we accept the clarification, namely that the draft Outline Development Plan has not yet been finalized and shall be accordingly finalized only according to law after receiving and deciding the objections. But for the clarification, we would have been constrained to consider the oblique motives alleged on behalf of the petitioners. We do not expect to see such mis-statements in affidavits sworn by officers.

10. In the result, we find no reason to grant any of the prayer clauses of the petition. The petition is therefore dismissed.

11. It is made clear that the petitioner shall be entitled to challenge any such permission which is granted pending finalization of the development plan on a case by case basis, in accordance with law.