Case Note & Summary
The petitioner, Shri Shailesh Vernekar, is the owner of property bearing survey no.52/1-A at Chaudi, Canacona, Goa, where he proposed to put up construction. He applied to both respondents for permissions under the respective enactments governing their functioning. The respondent no.2 (Town and Country Planning Department) examined the application and plans and issued a Technical Clearance Order on 3.1.2012 in respect of the proposed construction. The matter was then referred to the respondent no.1 (Canacona Municipal Council) for issuance of a construction license under the Goa Municipalities Act, 1968. Since there was no decision from the respondent no.1 for a long time, the petitioner filed Writ Petition No.453/2012 seeking a writ of mandamus. During the pendency of that petition, the respondent no.1 passed a resolution dated 3.10.2012 directing its Chief Officer to write to the respondent no.2 objecting to the grant of technical clearance. Based on this resolution, the respondent no.2 issued an order dated 1.1.2013 keeping in abeyance its earlier technical clearance order dated 3.1.2012. The petitioner then filed the present petition challenging both the resolution and the order. The court held that the respondent no.2 could not unilaterally keep the technical clearance in abeyance without affording the petitioner an opportunity of hearing, as such action violates principles of natural justice. The court also held that the resolution of the respondent no.1 was without jurisdiction as it had no authority to interfere with the technical clearance granted by the respondent no.2. Accordingly, the court quashed and set aside the impugned resolution and order, and directed the respondent no.2 to restore the technical clearance order dated 3.1.2012. The respondent no.1 was directed to consider the petitioner's application for construction license in accordance with law, without being influenced by the quashed resolution.
Headnote
A) Administrative Law - Natural Justice - Right to be Heard - Withdrawal of Technical Clearance - The respondent no.2 kept in abeyance its earlier technical clearance order dated 3.1.2012 based on a resolution of the respondent no.1, without giving any notice or opportunity of hearing to the petitioner. Held that such unilateral withdrawal without hearing violates principles of natural justice and the impugned order is liable to be quashed. (Paras 4-6) B) Municipal Law - Resolution - Objection to Technical Clearance - The respondent no.1 passed a resolution dated 3.10.2012 directing its Chief Officer to write to the respondent no.2 objecting to the grant of technical clearance to the petitioner's construction. Held that the resolution was without jurisdiction as the respondent no.1 had no authority to interfere with the technical clearance granted by the respondent no.2 under the Town and Country Planning Act. (Paras 2-3) C) Constitutional Law - Writ Jurisdiction - Quashing of Orders - The petitioner challenged the resolution dated 3.10.2012 and the order dated 1.1.2013 keeping technical clearance in abeyance. Held that the impugned orders are quashed and set aside, and the respondent no.2 is directed to restore the technical clearance order dated 3.1.2012. (Paras 7-8)
Issue of Consideration
Whether the respondent no.2 could unilaterally keep in abeyance its earlier technical clearance order without affording the petitioner an opportunity of hearing, and whether the resolution of the respondent no.1 objecting to the grant of technical clearance was valid.
Final Decision
The court quashed and set aside the resolution dated 3.10.2012 of the respondent no.1 and the order dated 1.1.2013 of the respondent no.2. The respondent no.2 was directed to restore the technical clearance order dated 3.1.2012. The respondent no.1 was directed to consider the petitioner's application for construction license in accordance with law, without being influenced by the quashed resolution.
Law Points
- Natural justice
- right to be heard
- unilateral withdrawal of permission
- technical clearance
- construction license
- municipal resolution
- writ jurisdiction
