Case Note & Summary
Two writ petitions were filed before the High Court of Bombay at Goa challenging development permission granted to private respondents for construction on plot no. 78 in survey no. 279/1 of Village Taleigao. The petitioners, including individuals and an NGO, alleged that the construction encroached upon an open space/recreational area in violation of the Goa, Daman and Diu Town and Country Planning Act, 1974. The private respondents had obtained a No Objection Certificate under Section 49(6) of the Act and development permission from the North Goa Planning and Development Authority after a site inspection. The petitioners relied on survey reports claiming encroachment and argued that no development can be carried out in open space, citing Down Mangor Valley v. Mormugao Municipal Council. The respondents contended that the construction was strictly within plot no. 78 as per the approved sub-division plan, and statutory reports confirmed no encroachment. The court examined the sub-division plan, measured distances from the admitted positions of adjacent plots, and drew parallel lines to determine boundaries. It found that the construction was within plot no. 78 and that there was no encroachment on the open space. Accordingly, the court dismissed the writ petitions, holding the development permission valid. The judgment underscores that while open spaces are protected, courts will verify factual allegations of encroachment by reference to approved plans and measurements.
Headnote
A) Town and Country Planning - Development Permission - Construction in Open Space Alleged - Goa, Daman and Diu Town and Country Planning Act, 1974, Section 49(6) - Petitioners challenged development permission granted to private respondents for construction in plot no. 78, alleging that boundaries were shifted to encroach on open space. The court examined the sub-division plan and measured distances from the admitted positions of adjacent plots nos. 82 and 83. Held that the construction was within plot no. 78 as shown in the sub-division plan and there was no encroachment on the open space; the development permission was valid. (Paras 6-8)
Issue of Consideration
Whether the construction by respondent nos. 5 and 6 encroached upon open space as per the sub-division plan and whether the development permission dated 27.07.2009 for construction in plot no.78 was valid.
Final Decision
After examining the sub-division plan and measuring distances from admitted positions, the court found that construction was in plot no.78 and there was no encroachment on open space. The writ petitions were dismissed and the development permission was upheld.
Law Points
- No construction permits allowed in open spaces as per development plans
- courts examine approved sub-division plans and measure distances from admitted positions to determine boundaries and encroachment
- development permission granted in accordance with statutory regulations and No Objection Certificate under Section 49(6) of Goa
- Daman and Diu Town and Country Planning Act
- 1974
Case Details
2017 LawText (BOM) (08) 110
WRIT PETITION NOS. 654 & 708 OF 2009
F. M. Reis, Prithviraj K. Chavan
Mr. R. Menezes, Ms. C. Rebeiro, Mr. S. G. Desai, Ms. P. Dessai, Mr. Dattaprasad Lawande, Mr. A. Prabhudessai, Ms. P. Sawant, Mr. H. D. Naik, Mr. N. Sardessai, Ms. N. Shirodkar
Mr. Amit Juneja and Mrs. Sudha Ladha (in WP 654 of 2009); Taleigao Bachao Abhiyan through President Mr. Annand Madgavkar (in WP 708 of 2009)
State of Goa, North Goa Planning and Development Authority, Town and Country Planning Department, Village Panchayat of Taleigao, Mr. Guirish Keni, Mr. Mahesh Adwalpalkar
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petitions under Article 226 of the Constitution of India challenging construction alleged to be in open space and seeking quashing of development permission.
Remedy Sought
Directions to respondent authorities to stop illegal construction by respondent nos. 5 and 6, and to quash and set aside order dated 25.01.2011 or any permission granted.
Filing Reason
Petitioners alleged that construction by private respondents encroached on open space in violation of statutory regulations.
Previous Decisions
Interim relief not granted initially; subsequently, by order dated 22.03.2010, construction by respondent nos. 5 and 6 was made subject to outcome of writ petition.
Issues
Whether the construction by respondent nos. 5 and 6 encroached on open space as per the sub-division plan.
Whether the development permission dated 27.07.2009 for construction in plot no.78 was valid.
Submissions/Arguments
Petitioners: Construction is in open space; boundaries of plot no.78 were shifted to encroach on open space; reliance on Down Mangor Valley case.
Respondents: Construction is in plot no.78 as per statutory permission; reports show no encroachment; high tension line as fixed point confirms identity of plot; petition is abuse of process.
Ratio Decidendi
Development permission for construction in a plot shown in sub-division plan is valid if no encroachment on open space is established. The court will examine distances from admitted positions on the approved plan to determine boundaries.
Judgment Excerpts
Plot no.78 is clearly shown in the sub-division plan placed on record and on the eastern side of such plot is an open space.
On examining the admitted positions of plot nos. 82 and 83 which are located on the southern side of the subject plot no.78 and drawing a parallel line from south western point with the eastern boundary of plot no.82 located on the southern side, we find that such imaginary line would prima facie include approximately two-third of plot no.82.
Procedural History
Writ petitions filed in 2009 seeking to stop alleged illegal construction. Interim relief not granted. By order dated 05.02.2010, interim order vacated. By order dated 22.03.2010, construction made subject to outcome of petitions. Court directed inspection and preparation of plan superimposing 1978 and 1986 plans. After hearing, judgment reserved on 16.06.2017, pronounced on 08.08.2017.
Acts & Sections
- Goa, Daman and Diu Town and Country Planning Act, 1974: Section 49(6)
