Bombay High Court
Goa University, Thr. Its Registrar vs Town And Country Planning Board And 3 Ors on 25 November, 2024
Author: M. S. Sonak
Bench: M. S. Sonak
2024:BHC-GOA:1998-DB
2024:BHC-GOA:1998-DB
WP-54-2023 w WP-414-2023
Maria S./Jose
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.54 of 2023
WITH
WRIT PETITION NO.414 of 2023
WRIT PETITION NO.54 of 2023
Dr Suresh B. Shetye, son
of Balchandra Shetye, 86
years of age, Indian
National, R/o H. No.771,
Opp. Water Tank, Near
Konkani Kendra, B. B.
Borkar Road, Porvorim, ..... Petitioner.
Bardez-Goa 403521.
Versus
1. State of Goa
Through the Chief
Secretary, Having oice
at Secretariat, Porvorim,
Bardez - Goa.
2. The Chief Town Planner
Town and Country
Planning Department-
Government of Goa,
Panaji-Goa.
3.North Goa Planning And
Development Authority,
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Through the Member
Secretary, Archdiocese
Bldg., Mala Link Road,
Panaji-Goa.
4. Goa University
A Body Corporate
represented through its .... Respondents.
Registrar Oice at Goa
University Campus,
Taleigao Plateau,
Tiswadi-Goa.
WITH
WRIT PETITION NO.414 of 2023
Goa University, a body
Corporate, Through its
Registrar having
registered Oice at the ..... Petitioner.
University Campus
Taleigao Plateau Goa.
Versus
1. Town and Country
Planning Board with
Oice at Patto Panaji-Goa
2.North Goa Planning And
Development Authority,
Archdiocese Building, 1st
Floor, Mala Link Road,
Panaji-Goa 403001.
3.Dr Suresh B. Shetye,
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MZ-1 Sukerkar Mansion
M.G. Road, Panaji-Goa.
.... Respondents.
4. State of Goa through
Chief Secretary
Secretariate at Porvorim
Goa.
Mr Shivan Desai with Mr A. Sardessai, Ms M.
Viegas and Ms T. Menezes, Advocates for the
Petitioner in WP No.54/2023 and for Respondent
No.3 in WP No.414/2023.
Ms A.A. Agni, Senior Advocate with Ms Afrin
Khanm Harihar and Mr Junaid Shaikh,
Advocates for the Petitioner in WP No.414/2023
and for Respondent No.4 in WP No.54/2023.
Mr Neehal Vernekar, Additional Government
Advocate for the Respondent-State in WP
No.54/2023.
Mr Prashil Arolkar, Additional Government
Advocate for the Respondent-State in WP
No.414/2023.
Mr Sahish Mahambrey, Advocate for
Respondent No.3 in WP No.54/2023 and for
Respondent No.2 in WP No.414/2023.
CORAM: M. S. SONAK &
VALMIKI MENEZES, JJ.
RESERVED ON: 1st APRIL 2024
PRONOUNCED 25th NOVEMBER
ON: 2024
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JUDGMENT:
(Per Valmiki Menezes, J.)
1. Heard Ms Agni for the Petitioner/Goa University in
WP No.414/2023 and for Goa University/Respondent
No. 4 in WP No.54/2023, Mr Neehal Vernekar,
Government Advocate for the Town Planning Board
(Respondent No. 1) in WP No.414/2023 and for State
of Goa and Chief Town Planner (Respondent Nos. 1
and 2) in WP No.54/2023, Mr Sahish Mahambrey, for
the North Goa Planning and Development Authority
(NGPDA)-Respondent No.2 in WP No.414/2023 and
Respondent No.3 (NGPDA) in WP No.54/2023.
2. Rule. Rule made returnable forthwith and with
the consent of the parties, these petitions are inally
disposed of. Since these petitions involve common
questions and a challenge by two sets of parties to
the action of the Town and Country Planning Board
afecting each of them, they were heard together and
inally disposed of by this common Judgment.
3. In Writ Petition No.414/2023, the Petitioner, Goa
University (“the University”) seeks a writ of certiorari
to quash and set aside an order dated 20.12.2021
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passed by the Respondent No.1, the Goa Town and
Country Planning Board (“the Board”), directing the
University to comply with certain directions contained
in an earlier order dated 27.10.2015 of the Board; the
University seeks a further direction to the Respondent
No.2, North Goa Planning and Development Authority
(“NGPDA”) to reconsider the regularization permission
dated 24.07.2018 granted by the Greater Panaji
Planning and Development Authority (“GPPDA”) to the
University. A further relief is sought by the University
to quash Direction (a) contained in the order dated
27.10.2015 passed by the Board or to clarify that
Direction (a) is limited to the access from the
Southern side of the property of the University to the
property under Survey No.212, and for a further
clariication that the Direction (a) is restricted to the
removal of the barbed wire fencing put up along the
periphery of the property of the University on its
Northern side near Model Complex and Faculty
Building B of the University.
4. In Writ Petition No.54/2023, the Petitioner, Dr.
Suresh B. Shetye (“Dr. Shetye”) seeks a writ of
mandamus to direct Respondent No.2, Chief Town
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Planner and Respondent No.3, NGPDA to take action
in accordance with law on the Petitioner’s complaint
dated 08.09.2022; by the complaint dated 08.09.2022
addressed by Dr. Shetye to the Chief Town Planner
and the NGPDA, Dr. Shetye contended that the
University had constructed a compound wall along the
periphery of its property without leaving any openings
therein to provide access to the neighbouring
properties, which include land under Survey No.193,
197 and 198 of Village Calapur, owned by him; the
complaint contends that the compound wall was
constructed without any permissions from the GPPDA
or NGPDA and that though the University claims that
the construction of the illegal wall was regularized by
order dated 24.07.2018 of the GPPDA, since there was
no clarity in the order of regularization as to whether
the construction of the wall along his properties was
in fact legalised by that order, in efect such
regularization, which was not in reference to any plan
could not have been accorded any permissions
without leaving access to these properties. Dr. Shetye
seeks a direction to the NGPDA to take action and to
demolish the compound wall constructed by the
University.
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5. The brief facts as pleaded in Writ Petition
No.414/2023 (Goa University) and by Dr. Suresh
Shetye in Writ Petition No.54/2023 are as under:
i. That the University was established in 1985
under the Goa University Act, 1984. The
Government of Goa acquired several lands
situated in the villages of Taleigao, Calapur
and Bambolim for setting up the construction
of the University, possession of which was
handed to the University in 1986, pursuant to
which construction of various buildings
including the Administrative Block and Faculty
Building was commenced and completed.
Apart from several other buildings having been
constructed by the Government of Goa for the
University, the University has also constructed
a compound wall along its periphery to a major
extent in the year 2009/2010.
ii. In 2013, the NGPDA informed the University
that it had decided to construct a 30 metre
wide Outline Development Plan (ODP) road
along the Northern boundary of the University
and it was further informed to the UniversityPage 7 of 73
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the University along its Southern periphery
had blocked the 30 metre wide ODP road of
Taleigao, the University was called upon to
remove the barbed wire fencing where it
blocked the road along the Southern periphery
abutting land under Survey No. 206/10. The
University contends that it objected to these
directions, contending it had not blocked any
access and requested the NGPDA to refrain
from taking any action to dismantle the barbed
wire fencing erected by the University.
iii. A show cause notice dated 20.02.2014 was
served by the NGPDA on the University
alleging that the University had unauthorizedly
constructed buildings admeasuring 2200 sq.
mts., which partly encroached upon the ODP
road, and further alleged that a barbed wire
fencing constructed by the University had
blocked the 30 metre proposed ODP road
along the Taleigao ODP. The University
contends that after replies were iled by the
University, taking a stand that the University
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under the provisions of Section 66 of the
Panchayat Raj Act. It further contended that a
stop work order dated 04.12.2014 was issued
by the NGPDA for carrying out the alleged
unauthorized construction of buildings and
barbed wire fencing without prior approval of
the authority; the University contends that the
stop work notice was restricted to the area
under Survey No.206/10 and not to the area
which Dr. Shetye is concerned with which falls
to the North-East of the University.
iv. The stop work notice/order dated 04.12.2014
came to be challenged in Appeal under Section
52 before the Board, which, in the course of
hearing of Appeal decided to constitute a Sub-
Committee comprising of some of its members
to inspect the site, which the University
contended was restricted to the area on the
Western boundary near Model Complex and
along property under Survey No.206 belonging
to one Shankhwalkar, and the Faculty Block
which was on the Northern side of the
University, as also restricted to the area under
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Survey No.211 and 212 on the Southern side.
Amongst the grounds taken into appeal, two
grounds raised therein would be of some
relevance to the decision of this matter.
Ground (E) of the Memo of Appeal avers that
the University had iled an application for
regularization of the building in Survey
No.216/1 (Faculty Block), hence, Stop Work
Order would not take efect in terms of Section
52 of the Goa Town and Country Planning Act
(TCP Act); the second ground taken was in
Ground (F) to Ground (J), to the efect that the
University being an authority under Article 12
as also a statutory authority, there was no
requirement for it to obtain any permission
under the TCP Act for construction of the
compound wall or any other structure.
v. The Sub-Committee inspected the sites in
question, under Survey No.206/10 and 216/1
of Village Taleigao and observed that the
construction of the Building Block of the
University, which was under way would cause
two bottlenecks along the proposed ODP road
of 30 metres near the overhead water tank
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and the right of way along the ODP road would
reduce to a maximum of 11.5 and 13.5 metres
along these stretches.
vi. The TCP Board considered the report of the
Sub-Committee and recorded in its meeting
dated 27.10.2015, the submission of the
University that it requests the Board to reduce
the right of way along the ODP road from 30
metres to 12 metres since 12 metres space
was available beyond the building block under
consideration; a further submission was
recorded from the University that they were
ready to remove the portion of the compound
as reported by the Sub-Committee.
Consequently, the Board passed the following
order:
i. The University shall remove all blockages
put up by them in the form of
compounds/barbed wire fencing along their
boundary, which are blocking access to
neighbouring properties.
ii. They shall submit compliance to North Goa
PDA within 30 days from date of this order.
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WP-54-2023 w WP-414-2023iii. The North Goa PDA shall keep stop work
notice dated 4/12/2014 in abeyance and see
possibility of re-aligning proposed 30.00
mts. ODP road and reduction of right of way
to 15.00 mts, at the time of review/revision
of the ODP, which is currently in progress.
iv. The University shall take development
permission/technical clearance, as the case
may be, for any development in the
University complex as per provisions of the
Goa land Development and Building
Construction Regulations, 2010, including
regularization of buildings already built.
Thus, a clear direction was issued by the
Board to the University to remove all
impediments put up by it, whether in the form
of a compound wall or a barbed wire fence
along its boundary which blocks access to
neighbouring properties. In addition, the Board
imposed a condition on the University that it
would be required to take development
permission/ technical clearance for all its
developments in its complex in terms of thePage 12 of 73
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Construction Regulations, 2010 (Building
Regulations), including regularization of
buildings already built.
vii. The order of the Board dated 27.10.2015 and
more particularly Direction (a) contained
therein was not challenged immediately
thereafter; instead, the University informed the
NGPDA by communication dated 09.11.2015
that its Executive Council (EC), in its meeting
dated 30.09.2015 had already taken a
decision, prior to the Board’s order, to abide by
the Board’s Direction and to remove the
barbed wire along Model Status Building
(towards the North) and would open access of
two plots on the Southern side of its land. The
resolution bearing No. XXX passed by the EC of
the University dated 30.09.2015 speciically
records that it would initiate action towards
regularization of existing buildings and those
under construction in the campus of the
University, and if required, the entire
University property should be surveyed again
to obtain regularization. There was no otherPage 13 of 73
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meetings after 30.09.2015 or after the order of
the Board dated 27.10.2015, to challenge
clause (a) of the order of the Board. Further,
and pertinent to note, is the fact that no
application or regularization plan was
submitted by the University pursuant to the EC
resolution for any of the
structures/buildings/compound walls
constructed by it in any of its land, to the
concerned Village Panchayat or Planning
Authority for several years after the order of
the Court dated 27.10.2015 was passed.
viii. On 20.11.2015, the University requested the
TCP Board to “reword” its order of 27.10.2015
which directed the University to remove all
blockages in the form of compounds/barbed
wire fencing along its boundary which blocked
access to neighbouring properties, and to
restrict this order to the areas inspected by the
Sub-Committee under Survey No.215 and 216
of Village Taleigao and Survey No.212 of
Village Calapur. The letter was written, as
stated therein, on the premise that thePage 14 of 73
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WP-54-2023 w WP-414-2023University was encircled on all sides by private
lands and was ighting legal cases in various
Courts iled by private parties demanding
access through University property.
There was no response to this
communication and a further reminder sent by
the University to the Board.
ix. On 06.01.2016, Dr. Suresh Shetye wrote a
letter to the University bringing to its notice
that he was the owner of lands under Survey
No.193, 197 and 198 of Village Calapur which
were adjacent to the Eastern boundary of the
University land; in that communication, he
stated that upon his visit to these properties in
September, 2015, he had found that the
University had erected a compound wall along
his properties blocking his access. He
requested the University to demolish the
compound wall to provide the access to his
properties.
x. In reply to Dr. Shetye’s letter dated
06.01.2016, by communication dated
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also denied that it had blocked any access to
the properties under Survey No.193, 197 and
198. In the same letter, the University claimed
that it had constructed the compound wall way
back in the year 2010 along the boundary of
its campus, consequently it denied the request
of Dr. Suresh for demolishing the wall for
providing access to his properties.
xi. Dr. Suresh Shetye then made three
representations to the Chief Town Planner
dated 29.07.2016, 14.06.2018 and
02.07.2018, requesting that the compound
wall constructed by the University along their
Eastern boundary had blocked access to his
landlocked properties.
xii. In the meanwhile, the University iled an
application dated 31.08.2017 before the
NGPDA for regularization of various structures
constructed by it on its lands. Whilst the
application for regularization was pending
before the NGPDA, by a notiication dated
15.02.2018 a new Planning Authority, the
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Greater Panaji Planning and Development
Authority (GPPDA) was created and the areas
within which the pending regularization
application fell, were included within the new
planning area now constituted as the GPPDA;
on 12.04.2018, the GPPDA issued to the
University Form F which contained the
assessment of development charges and
penalties to be imposed on the regularization
of buildings sought by the University. The
assessment order contained an annexure of all
the built up areas sought to be regularized,
survey-wise, running to a total coverage of
101,363.66 square metres covering an FAR of
89,842.40.
xiii. On 24.07.2018, after the University had paid
a total amount of Rs.74,30,203/- as
regularization fees, the GPPDA issued an order
under Section 52(2)(a) of the Town and
Country Planning Act regularizing the
building/block/bungalow as detailed in
Annexure “A” enclosed with the order. The
order however contains an additional word
“compound wall” in the order; however, a
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perusal of Annexure “A” to the order refers to
buildings or blocks or lats but nowhere refers
to a compound wall. The annexure to the
assessment order which refers to the “units to
be regularized” also does not refer to any
compound wall, though, it is the claim of the
University in its petition that the order of
regularization includes the compound wall
which was subject matter in dispute between
the University and Dr. Suresh Shetye.
xiv. At this juncture, we record that, though the
Regularization Application was not produced
by the University as part of the record of its
petitions, in order to ascertain the scope of the
application for regularization of the
constructions by the University at site and
whether the University had actually applied for
regularisation of the compound wall on Survey
Nos. 194, 195, 196, 226, 229 and 230 (owned
by University), we requested the University to
place on record the regularisation application
along with the endorsed copy of the plans
submitted by it for the purpose of
regularization of the structures.
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xv. The University placed on record the application
dated 31.08.2017 in its compilation dated
05.03.2024, however no site plan or any plans
which were inwarded to the NGPDA under the
application have been produced by the
University. The application covers the lands of
the University in Taleigao, Calapur and
Bambolim Village. During the course of the
hearing, we had requested the University to
produce the original coloured version of the
regularisation plan received by it under
regularisation order dated 24.07.2018,
however the University was unable to produce
the original plan received by it under the order
of regularization of the Greater Panaji Planning
and Development Authority (GPPDA) in whose
jurisdiction the land of the University fell when
the order of regularization dated 24.07.2018
was passed.
Considering the above situation, we then
called upon the learned Advocate appearing
for the NGPDA to produce the original ile of
the regularization application pending before
the Planning Authority, and a copy of the plans
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submitted for regularization along with the
application came to be iled before us, which
we have considered whilst disposing of these
petitions.
xvi. On 15.10.2018, the TCP Board considered the
representations of Dr. Suresh Shetye and was
appraised of the fact that the NGPDA had
passed a stop work order dated 14.12.2014
which was kept in abeyance by the Board with
regard to the very same representations.
Accordingly, the Board, by its directions dated
15.10.2018, making a reference to its 152 nd
Board meeting in which the University was
involved in a similar matter of blocking of
access, and directed the University to remove
all the blockages and to clear the access roads
to the neighbouring properties bearing Survey
Nos.193, 197 and 198 and to see that no
properties are landlocked by virtue of the
development undertaken by the University.
This order was communicated to the University
on 28.12.2018.
xvii. In reply, the University, by its letter of
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11.02.2019 informed the Chief Town Planner
that it will not be in a position to give any
access to Dr. Shetye. On 14.02.2019 the
University sent clariication to the Chief Town
Planner with regard to its earlier letter dated
11.02.2019. There is no reference made or
any claim by the University in these letters
that the compound wall in its lands under
Survey No.194, 195, 196, 226, 229 and 230
which are bounding the properties claimed by
Dr. Shetye under Survey Nos.193, 197 and 198
had been regularised under order dated
24.07.2018.
xviii. The University then iled on 11.03.2019, Writ
Petition No.317/2019 to challenge Direction (a)
of the order dated 27.10.2015 passed by TCP
Board in the appeal iled under Section 52 by
the University; this challenge was thrown to
Direction (a) of the order almost four years
after it was passed. In the very same writ
petition, the University also challenged the
communication dated 28.12.2018 which
relected the resolution of the TCP Board dated
15.10.2018 on the representations iled by Dr.
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Suresh Shetye.
This writ petition was disposed of on
30.07.2019 without entering into the merits of
the challenge, setting aside only order dated
15.10.2018 and order dated 12.11.2018, only
on the count that the orders were passed
without giving the University a hearing. The
TCP Board was directed to hear the University
afresh and also dispose of the representations
of Dr. Suresh Shetye whilst passing fresh
orders. The order dated 27.10.2015 of the
Board, passed in the University’s appeal under
Section 52, was however not set aside, though
the University was granted the liberty to revive
the challenge raised in Writ Petition
No.317/2019.
xix. From the record, we have observed that in
paragraph 36 of Writ Petition No.317/2019, the
University took a stand that it took a decision
to ile an application for regularization before
the Town and Country Planning
Department not only for regularization of the
compound wall but also with regard to other
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structures in its property and paid a fee of
Rs.74,30,230/-. Further statement is made in
this paragraph that in respect of the structures
regularization was granted by the Town and
Country Planning Department, though
documents with regard thereto had not been
received by the University; as regards the
compound wall, it was pleaded that the
application for regularization of the compound
wall was still pending before the Town and
Country Planning Department for the last four
years.
xx. In contrast, in the present petition, the
University departs from its earlier stand and in
paragraph 21 thereof, avers that it iled an
application for regularization before the
Department regarding the compound wall and
other structures, paid a fee of Rs. 74,30,230/-,
and the construction of the buildings and
compound wall was regularized vide
order dated 24.07.2018.
The stand now taken by the University
appears to be a diferent one, in that it now
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claims that regularization was also granted to
the compound wall constructed along Survey
Nos.193, 197 and 198 and the entire periphery
of its property along with other structures.
xxi. Thereafter, the Board appointed a sub-
committee to inquire into the representation of
Dr. Shetye, which in turn directed him to ile a
surveyor’s report to depict the exact location
of the blockage of the access to his properties
under Survey Nos.193, 197 and 198. A survey
report with a plan was submitted to the sub-
committee, whilst the University submitted on
17.06.2020 its regularization plan/permission
issued by the Planning Authority on
24.07.2018 claiming that part of the
compound wall had been regularized by this
order. On going through these documents, the
sub-committee opined that the alignment of
the access as shown in the survey report of Dr.
Shetye partly tally with the proposed 10 metre
road shown in the Regional Plan 2021 passing
through property under Survey No.198
belonging to him. The sub-committee then
opined that the compound wall was almost
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over the alignment of the proposed road
shown on the regional plan, and that the
GPPDA should be directed to review its
development permission. Accordingly, the
Board, by its order dated 28.08.2020 passed
on the representations of Dr. Suresh Shetye,
directed the GPPDA to review its development
permission for construction of the compound
wall after considering the representation of Dr.
Shetye as to the blockage of his access. This
order was granted approval of the
Government, and was communicated to the
University on 21.12.2020.
xxii. The University then iled Writ Petition
No.855/2021 (F) throwing a challenge to the
order dated 28.08.2020 passed by the Board;
a further challenge was also thrown to the
order dated 27.10.2015 passed by the Board
on the premise that this Court had earlier
granted liberty by its order dated 30.07.2019
to revive the challenges raised in Writ Petition
No.317/2019. In Writ Petition No.855/2021 (F),
the University now took a stand that the
compound wall along Survey Nos.193, 197 and
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198 belonging to Dr. Shetye was in fact
regularized by the NGPDA vide its order/
approval dated 24.07.2018, which was quite
contrary to its earlier stand taken in Writ
Petition No.317/2019 that its application for
regularization of the compound wall was still
pending. The pleadings at para 34 of this
petition suggest that a submission was made
on 27.01.2020 by the Advocate for the GPPDA
before the Board, that no application at all had
been iled by the University for regularization
of the compound wall.
xxiii. By this Court’s order dated 19.08.2021, the
order dated 28.08.2020 of the Board was set
aside and the Board was now directed to
consider the matter afresh and to dispose of
the representation made by Dr. Shetye and
also to dispose of the representation dated
20.11.2015 made by the University requesting
to reword order dated 27.10.2015.
xxiv. On 20.12.2021, the Board took a fresh decision
in the following terms:
i. That the order dated 27.10.2015 has not
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Court and having attained inality, was
required to be complied with.
ii. That the regularization order dated
24.07.2018 passed by the GPPDA of
regularization does not come in the way in
seeking compliance of the order dated
27.10.2015.
iii. The University shall remove blockages as
per order dated 27.10.2015 and report
compliance.
iv. The PDA shall take a relook into its
permission granted for the compound wall
vis-à-vis the provisions of the ODP.
xxv. By a complaint dated 08.09.2022 addressed to
the NGPDA and the Chief Town Planner, Dr.
Suresh Shetye alleged that the compound wall
constructed by the University on land under
Survey Nos. 194, 195, 196, 226, 229 belonging
to it was illegal and constructed without any
requisite permissions; in the complaint, Dr.
Suresh Shetye has alleged that though the
University has been contending that the
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construction of this wall has been regularised
by the then existing GPPDA by order dated
24.07.2018, the regularisation order was not
with reference to any plan cleared and
relatable to the subject construction of the
compound wall. In the same complaint he
alleged that apart from there being no
reference in the regularisation order to a plan
pertaining to a compound wall in that area, the
said area where the wall was constructed
pertain to a non-planning area falling under
the jurisdiction of the TCP Department, and
therefore the order of regularisation dated
24.07.2018 could not relate to the compound
wall in that area. Dr. Suresh Shetye then iled
Writ Petition No.54 of 2023 claiming a writ of
mandamus to the NGPDA and Chief Town
Planner to take action on his complaint to
demolish the compound wall of the University
to create an access to his lands under Survey
Nos.193, 197 and 198 of Village Calapur.
xxvi. During the course of the arguments the
University, along with its compilation of
documents dated 05.03.2024, produced a
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construction licence dated 16.11.2023 issued
by the Oice of the Village Panchayat of Santa
Cruz, which purports to regularise structures
covered by regularisation order dated
24.07.2018 of the GPPDA. The construction
licence is with reference to a construction plan
which has not been produced by the
University, nor has it produced its application
in terms of Section 66 of the Goa Panchayat
Raj Act seeking permission for such
construction. There are no pleadings of the
University in either of the petitions in support
of this construction licence or in plaint that the
same relates to the compound wall in
question.
It is in the context of the above-undisputed
facts that we are called upon to decide the
various contentions raised by the parties before
us.
6. In Writ Petition No.414 of 2023 (Goa University),
Dr. Suresh Shetye has iled an aidavit in reply dated
13.06.2022 in which he takes a categorical stand that
the compound wall in question constructed by the
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University abounding his three Survey Nos. 193, 197
and 198 was illegal. He has contended that the
regularisation permission granted by GPPDA could be
applicable, if at all only to the area within its
jurisdiction and was not applicable to the part of the
illegal compound wall constructed outside the
planning area i.e. in the area falling along the
proposed Regional Plan Road.
7. In Writ Petition No.54 of 2023 iled by Dr. Suresh
Shetye, the University has iled an aidavit in reply of
Prof. Vishnu Nadkarni, Registrar dated 05.01.2023
wherein, at paragraph 25 it takes a stand that the
compound wall constructed by it in the year 2010
around the boundary of its property under Survey
Nos.194, 195, 226 and 225 was regularised vide
permission dated 24.07.2018 and lie within the
territorial jurisdiction of Bambolim Planning and
Development Authority and are included in ODP
2014. It admits the fact that there was a proposal of
the Planning Authorities to construct a peripheral road
along the northern boundary of its property including
the area which is the subject matter of this petition, to
which it had initially given its consent, which it later
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on withdrew in view of the fact that the peripheral
road was never constructed. The aidavit further
denies that the compound over these survey numbers
is illegal and claims that the same is covered under
regularisation order dated 24.07.2018.
In the light of these rival contentions raised in
the two petitions the following submissions were
made by the learned Counsel for the respective
parties.
SUBMISSIONS:
8. Learned Senior Advocate Mrs Anarkali Agni for
the University advanced the following submissions:
A. That the order dated 20.12.2021 passed by the
TCP Board and impugned in Writ Petition
No.414/2022 is not in exercise of any power
vested in the Board under The Goa Town &
Country Planning Act nor is it traceable to any
statutory provision. It was submitted that this
order is not passed in terms of Section 52 of the
Act as those provisions vest powers to remove
an unauthorised development in the Planning
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impugned order could not be attributed to
exercise of powers of the Board under Section 8
of the Act, in view of the fact that the power to
remove an unauthorised structure (in this case,
the wall along Survey Nos.193, 197 and 198)
would only vest under Section 52 with the PDA.
There being a speciic provision conferring such
powers on the PDA, powers vested in the Board
under Section 8 are not called into play, hence
the impugned order is passed in excess of
jurisdiction/powers vested in the Board.
B. The manner in which the impugned order dated
20.12.2021 has been passed, would amount to
the Board controlling the exercise of jurisdiction
vested in the PDA, which is impermissible at law
and to some extent would amount to usurpation
of the powers of the PDA to take action, which in
any case could be undertaken under Section 52
only after giving the University a hearing in the
matter. Thus, the impugned order, to the extent
that it directs the PDA to review its earlier order
of grant of post facto permission under Section
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was further submitted that the impugned order
sufers from procedural impropriety calling for
the interference of this Court in its writ
jurisdiction.
C. The directions issued by the Board in both its
orders i.e. dated 27.10.2015 and 20.12.2021 are
devoid of any reasons and are therefore
unsustainable. It was submitted that even an
administrative order is required to be supported
by reasons to reassure that the discretion
exercised by the Authority are based upon
relevant grounds and by disregarding extraneous
considerations. It was submitted that the four
directions contained in the impugned order
dated 20.12.2021 do not make reference to any
material before the Board to arrive at the
conclusion that the compound wall was
constructed along the alignment of ODP road or
that the area in question fell within the ODP
area. It was further submitted that the direction
to the PDA, to reconsider and to review its order
of regularisation, in the light of the Planning
Regulations applicable to the area was uncalled
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for in the absence of challenge of any challenge
to the order of regularisation dated 24.07.2018
by Dr. Suresh Shetye.
D. That the Outline Development Plan (ODP)
prepared on 18.02.2019 does not show any road
through the property of University under Survey
Nos. 194, 195 and 226 nor has Dr. Shetye iled
any objections under Section 27 or Section 35 or
an appeal under Section 38 objecting to the ODP.
Consequently, all of this disentitles Dr. Shetye
from agitating any grievance regarding an
easement or access to his properties and the
correct forum to do so will be before the Civil
Court.
E. In Writ Petition No.54 of 2023, it is the
submission of learned Senior Advocate Mrs Agni
for University that the claim of Dr. Shetye is
essentially one for an easementary right of
access in his properties and the Civil Court would
be an appropriate forum to decide the same. It
is contended that though doubts have sought to
be raised by Dr. Shetye as to whether the
regularisation order covers the portion of the
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compound wall on lands under Survey Nos. 194,
195, 196, 225, 226, 229 and 230, the perusal of
the regularisation plan leaves no doubt that the
portion of the compound wall in question was in
fact covered by the regularisation order. It was
contended that this stand having been accepted
by all parties, including by the Planning
Authorities and Board, in the absence of any
challenge being thrown by Dr. Shetye to the
regularisation order dated 24.07.2018, it could
not be contended that the wall in question was
illegal.
F. Learned Senior Advocate for the University has
cited the following judgments in support of the
submissions made:
(i) Kranti Associates Private Limited &
Anr. v. Masood Ahmed Khan & Ors. 1
(ii) Smt. Sebastiana Cardozo & Ors. v.
State of Goa & Ors2.
(iii) Anil Kumar Singh v. Vijay Pal Singh3.
(iv) Shridhar C. Shetty (Deceased) through
Legal Representatives v. Additional1
(2010) 9 SCC 496
2
2015 SCC OnLine Bom 8373
3
(2028) 12 SCC 584Page 35 of 73
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Ors4.
(v) Harshit Agarwal & Ors. v. Union of
India & Ors.5
(vi) Municipal Council, Neemuch v.
Mahadeo Real Estate & Ors6.
(vii) Vinod Kumar v. State of Haryana &
Ors7.
(viii) Punjab State Power Corporation
Ltd. & Anr. v. Emta Coal Ltd. & Ors8.
(ix) Lok Prahari v. State of Uttar Pradesh
& Ors9.
(x) Dharani Sugars and Chemicals Ltd. v.
Union of India & Ors10.
(xi) V. K. Ashokan & Ors. v. Assistant
Excise Commissioner & Ors11.
(xii) Mr. Serrao Francis Socorro v. Town and
Country Planning Board & Anr.12
(xiii) Opto Circuit India Ltd.v. Axis Bank
& Ors13.
(xiv) Mohinder Singh Gill & Anr. V. The
Chief Election Commissioner, New
Delhi & Ors.144
(2020) 9 SCC 537
5
(2021) 2 SCC 710
6
(2019) 10 SCC 738
7
(2013) 16 SCC 293
8
(2022) 2 SCC 1
9
(2016) 8 SCC 389
10
(2019) 5 SCC 480
11
(2009) 14 SCC 85
12
2000 SCC OnLine Bom 436
13
(2021) 6 SCC 707
14
AIR 1978 SC 851Page 36 of 73
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9. Learned Advocate Shri Shivan Desai, appearing
for Dr. Suresh Shetye has advanced the following
submissions:
A.The regularisation order of the GPPDA dated
24.07.2018 does not cover the areas of the
compound wall in question in Survey Nos. 194,
195, 196, 225, 226, 229 and 230 as the plan
submitted for regularisation does not seek
regularisation of this stretch of the compound
wall but seeks regularisation of the compound
wall constructed along Survey Nos.201, 202,
219, 215, 216, 272 along the northern
boundary of the property of University and
along its entire southern and eastern boundary.
The regularisation plan did not claim that the
compound wall along Survey Nos. 229, 230,
194, 195, 196, 226, 225, 202, 201, 200 and 143
was proposed to be regularised. He submits
that the compound wall in question was
therefore illegally constructed without lawful
sanction of any authority and consequently, the
Writ Petition iled by the University ought to be
dismissed and the mandamus sought to the
NGPDA and to the Chief Town Planner to take
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action against the construction of the illegal
compound wall along these Survey numbers,
thereby blocking access to the properties of Dr.
Shetye under Survey Nos. 193, 197, 198 ought
to be granted.
B.It was submitted that the University was taking
contrary stands on the question as to whether
its compound wall constructed along Survey
Nos. 193, 197, 198 had been regularised; the
University, in answer to the show cause notice
dated 20.02.2014, had taken a categorical
stand in its reply dated 09.04.2014 that it was
an “Other Authority” under Article 12 of the
Constitution of India and did not require any
permissions under the Panchayat Raj Act or the
Town and Country Planning Act and was
therefore within its right to construct any
structure or even a compound wall along the
territory of its property. At the hearing of the
matter before the Board, the representative of
the University had requested the Board to
reduce the right of way of the 30 metres wide
ODP road to 12 metres along the Northern
periphery of its land and had agreed that the
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University removed a portion of the compound
wall as per the report of the sub-committee. On
the order of the Board being passed on
27.10.2015 directing the University to remove
all blockages in their compound along their
boundary, which were blocking access to
neighbouring property, the order was not
challenged and instead accepted the same by
recording in its letter dated 09.11.2015 that the
barbed wire fencing along Model Status Building
would be removed and that it had decided to
open access in its compound wall to two plots in
its Southern side.
Learned Advocate Shri Desai submitted that
in its letter of 09.11.2015 to the NGPDA, the
University took up a stand that it was fully
committed to comply with the order dated
27.10.2015 of the Board and to fulil that end
were waiting for conirmation of the Executive
Council meeting of the University. The
University, at the relevant time, clearly had
accepted the order of the Board directing
removal of all blockages in the form of
compounds or barbed wire fencing along their
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boundary, blocking access to neighbouring
properties and had challenged these directions
no further. Subsequently, the University took up
a stand in answer to the representation of Dr.
Shetye dated 06.01.2016 that there never
existed any access through their property along
their compound wall to land under Survey Nos.
193, 197 and 198. It was further submitted that
resiling from their earlier stand, the University
then sought, on 31.08.2017, regularization of
part of the compound wall on the North and
Southern side of their property and in Writ
Petition No. 317/2019 took a stand that though
the University sought regularization of the
compound wall, which according to it, included
the wall along Survey Nos.193, 197 and 198, it
had not received any formal order regularizing
the same, though regularization of the other
building structures under the application dated
31.08.2017 had been received from the GPPDA.
It was further submitted that the University has
been indulging in approbate and reprobate, by
changing its stand, wherein, in the present
petition, the University now contends that the
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order of regularization dated 24.07.2018 of the
GPPDA also regularizes the compound wall
along the survey Nos. 193, 197 and 198 of Dr.
Suresh Shetye. The learned Counsel therefore
submits that this Court, in its writ jurisdiction
under Article 226 ought not to permit the
University to take such contrary stand and
should refuse any relief to the University, on
this count.
C.Without prejudice to this contention, it was
submitted that on examining the records, it is
found that the order of regularisation dated
24.07.2018 did regularise the construction of
the wall along survey Nos. 193, 197 and 198,
the order of the Board dated 20.12.2021
directing the NGPDA to relook into its
regularisation order in the light of the
observations made by it therein must be
sustained, since in any event the contentions of
Dr. Shetye raised in his various objections were
required to be considered.
D. It was further submitted that the University
having completed construction of the
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compound wall in question without obtaining
any permissions whatsoever from the
Authorities, and further in the light of the fact
that the stop work notice issued by the NGPDA
was kept suspended subject to condition (a) to
(d), was estopped from challenging the order
dated 27.10.2015 of the Board. It is further
contended that the stop work order dated
04.12.2014 and Show Cause Notice dated
20.02.2014 continued in force and were never
set aside nor did the University challenge the
conditions speciied in order dated 27.10.2015
in any petition until the year 2019 in Writ
Petition No.317 of 2019; even then, the order
dated 27.10.2015 was not set aside and only
the orders dated 15.10.2018 and 12.11.2018 of
the Board were set aside remanding the matter
back to the Board for reconsideration of the
representations of Dr. Shetye. In the view of
these facts, no indulgence and discretion ought
to be exercised by a writ Court in favour of the
University.
E. In terms of Section 8, 10 and 12 of the Town
and Country Planning Act, the Board has
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suicient power to enforce all provisions of the
Act irrespective of whether the property of the
University was within a planning area or an area
under the Regional Plan. It is contended that
the directions of the Board contained in order
dated 27.10.2015 have to be construed to be in
exercise of its overarching powers over Planning
Authorities as contiguous areas may fall partly
under a planning area and partly under a
Regional Plan; the powers of the Board are not
limited in such cases and the Board is entitled,
in the interest of bringing planned development
in contiguous areas to pass such directions, as
in the case of those under its order of
27.10.2015, directing the clearing of any
blockage of access to landlocked plots which
were not covered in a planning area and which
derived access from contiguous plots which fell
within a planned area.
F. Learned Advocate Shri Desai then contends that
the Board, whilst deciding and passing the
impugned order dated 20.12.2021 has not
invoked its jurisdiction under Section 52 of the
Town Planning Act but was deciding the three
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representations of Dr. Suresh Shetye and the
representation of the University. The
representation was directed to be placed before
the Board by order dated 19.08.2021 of this
Court. It is submitted that it is recorded in
paragraph 16 of the order that the University
had submitted that the representation dated
20.11.2015 of the University ought to be
considered by the TCP Board along with that of
Dr. Shetye so that both could be granted a fresh
opportunity of representing their cases. In that
view of the matter, it was contended that the
Board was well within its jurisdiction to decide
the issues raised by both the parties and
therefore the order dated 20.12.2021 was legal
and with jurisdiction.
G. In support of his submissions Shri Desai
relies upon the following citations:
i) UOI v/s. N. Murugesan & Ors15.
ii) S. N. Mukherjee v/s. UOI16.
iii) Shangrila Food Products v/s. LIC17.
iv) Ramesh Chandra Sankla & Ors v/s.
15
(2022) 2 SCC 251
16
(1990) 4 SCC 594
17
1996 (5) SCC 54Page 44 of 73
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v) Bangalore Development Authority v/s.
Vijaya Leasing Ltd & Ors19.
vi) Central Council for Research in
Ayurvedic Sciences and Anr. v/s.
Bikartan Das and Ors20.
10. Learned Advocate Shri Neehal Vernekar,
appearing for the TCP Board has advanced the
following submissions:
A.Shri Vernekar has taken us through the
regularisation plan produced before us by the
NGPDA to contend that the order of
regularisation in fact does not cover the area of
the compound wall in question along the
periphery of the land of the University under
Survey Nos.194, 195, 196, 226, 229 and 230.
He submits that the plan submitted for
regularisation by the University numbering 33
in all covers 46 blocks spread over areas falling
in the Village of Taleigao, Calapur and
Bambolim. He has submitted a break-up of the
land of the compound wall proposed to be18
(2008) 14 SCC 58
19
(2013) 14 SCC 737
20
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WP-54-2023 w WP-414-2023regularised by the University in its
regularisation application which starts at the
corner of Survey No.201 moving westwards to
Survey No.272 and then along the periphery of
the property towards the South ending on the
East at Survey No.136 which is presently
occupied by the Shyama Prasad Mukherjee
Stadium occupied by the Government of Goa.
He further submits that under the caption
“Project” on the plan, the proposed
regularisation is for existing blocks in the
Village of Taleigao, Calapur and Bambolim and
not for any compound wall as contended by the
University.
B.Shri Vernekar takes us through the Goa Land
Development and Building Construction
Regulations, 2010 and more particularly
Regulation 3 which deals with the procedure
and requirements for securing development
permissions, technical clearance and
construction licence for any development; he
submits that any development permission
including one for regularisation of existing
structures requires the applicant to submit
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plans/drawings for approval in terms of
Regulation 3.2 C1. The drawings/plans are to be
marked in the standard colour notation
speciied in Regulation 3.4 which prescribes a
plot boundary to be in black colour while a
proposed work is required to be shown in red
outline. It is the contention of Mr Vernekar that
the plan sought to be approved do not
demarcate any compound wall proposed to be
regularised at the behest of the University on
the submission plan in red colour as required by
the regulation in area under Survey Nos. 194,
195, 196, 226, 229 and 230. The contents that
the compound wall in question was not subject
matter of the regularisation order dated
24.07.2018.
C.It was further contended by the learned Counsel
for the Board that the Board is within its powers
under the scheme of the Town and Country
Planning Act, and more particularly in terms of
Section 8 thereof to issue directions to the
Planning and Development Authorities in
matters relating to planning and use of land; in
the present case the Board has acted within the
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bounds of the powers vested under the Act to
issue necessary directions to the Planning
Authority to take a relook at its regularisation
order of 24.07.2018 in the light of the plaint of
the parties.
D. It was further contended that it falls within
the power and in fact the duty of the Board to
function for the public beneit, and as in the
present case, the Board, after considering the
rival contentions and the fact that the
properties in question are covered under
diferent planning areas and the Regional Plan
at diferent points of time, to bring about better
planning. In pursuance of this function, the
Board has in its wisdom directed the Planning
Authority to take a relook at its regularisation
order and directed the University to implement
condition (a) of the Board order dated
27.10.2015. These directions are within the
bounds of the Board’s powers and cannot be
held to be in transgression of the scheme of the
Act.
E. In support of his submissions, Shri Vernekar
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relies upon the following citations:
i) Kaalkaa Real Estates Private Limited &
Anr v/s. Municipal Corporation of
Greater Mumbai & Ors21.
ii) Mahendra Baburao Mahadik And Others
v/s. Subhash Krishna Kantikar And
Others22.
Shri Saish Mahambrey for the NGPDA
supported the contentions argued on behalf of
the Board.
11. Based upon the rival contentions raised by the
parties before us, the following broad points arise for
our consideration:
i. Based upon the records produced by the
University, the Board and the Planning
Authority before us, and on consideration of
the pleadings in these petitions, can the
University’s claim that the order of
regularization dated 24.07.2018 issued by the
GPPDA, has accorded post facto sanction and
regularization permission to the construction of
the compound wall of the University in its land
21
2022 SCC OnLine Bom 2536
22
(2005) 4 SCC 99.
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under Survey Nos. 194, 195, 196, 226, 229
and 230 along land bearing Survey Nos.193,
197 and 198 belonging to Dr. Suresh Shetye?
ii. Has the Board acted within the bounds of its
powers conferred under the Goa Town and
Country Planning Act whilst passing the
impugned order dated 20.12.2021?
iii. In the facts and circumstances pleaded in the
petition of the University (WP 414/2023), does
the Direction (a) in order of the Board dated
20.07.2015 call for any interference or need
any clariication as prayed for in the petition?
iv. Would the Petitioner (Dr. Suresh Shetye) in WP
54/2023 be entitled to a writ of mandamus
directing Respondents No. 2 and 3 to take
action in terms of the provisions of the Town
and Country Planning Act on the complaint
dated 08.09.2022 (Annexure P-1)?
CONSIDERATIONS:
12. Before proceeding to consider the rival
submissions of the parties, it would be apposite to
consider certain provisions of the Town and CountryPage 50 of 73
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WP-54-2023 w WP-414-2023Planning Act, 1974 (The Act) and of the Goa
Development and Building Construction Regulations,
2010 (The Regulations), since these would have a
direct bearing on the scope, powers and the
jurisdiction exercised by the Board and the Planning
Authority.
13. The Act was enacted by the Legislative Assembly
of Goa to provide for planning the development and
use of rural and urban land in the State of Goa and for
purposes connected therein. With this purpose in
mind, under Chapter II of the Act, the Government is
empowered to appoint a Chief Town Planner in terms
of Section 3 thereof and to constitute in term of
Section 4, a Board, known as the Goa Town and
Country Planning Board, which in the present case is
Respondent No.2 and Respondent No.1 in Writ Petition
No. 54 of 2023 and Writ Petition 414 of 2023
respectively.
14. The Board is constituted of several Ex-oicio
members which includes the Minister in-charge of
Town and Country Planning as its Chairman,
Secretaries of the Government in the DepartmentsPage 51 of 73
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WP-54-2023 w WP-414-2023dealing with Town and Country Planning, Local Self
Government (Village Panchayat and Municipalities),
Planning and Industry; in addition, the other members
appointed to the Board Ex-oicio are the Heads of
various Departments and Directorates, which includes
Public Works Department, Forest Department,
Agriculture Department, Tourism, Transport, Health
Services, Fisheries and Bureau of Economic, Statistics
and Evaluation. Further, an addition to the above, the
Central Government nominates four members to the
Board to represent the Ministries of the Central
Government dealing with Railways, Defence,
Transport and Tourism besides which two members
elected from amongst members of the Legislative
Assembly are also members. One person deputed by
the Chamber of Commerce and Industries, Goa is also
a member of this Board, while the Chief Town Planner
(Planning) is its Member Secretary.
15. The functions and powers of the Board are
speciied under Section 8 of the Act and read as
under:
8 Functions and powers of Board.
(1) Subject to the provisions of this Act and the
.
rules made there under, the functions of the
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Board shall be to guide, direct and assist the
Planning and Development Authorities, to
advise the Government in matters relating to
the planning, development and use of rural and
urban land in the [State of Goa], and to
perform such other functions as the
Government may, from time to time, assign to
the Board.
2) In particular, and without prejudice to the
generality of the foregoing provisions, the
Board may, and shall if required by the
Government so to do-
(a) direct the preparation of development plans
by the Planning and Development Authorities;
(b) undertake, assist and encourage the
collection, maintenance and publication of
statistics, bulletins and monographs on
planning and its methodology;
(c) co-ordinate and advise on the planning and
implementation of physical development
programmes within the [State of Goa];
(d) prepare and furnish reports relating to the
working of this Act; and
(e) perform such other functions as are
incidental, supplemental or consequential to
any of the functions aforesaid or which may be
prescribed.
(3) The Board may exercise all such powers as
may be necessary or expedient for purpose of
carrying out its functions under this Act.
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16. Under Chapter III, and more speciically in terms
of Section 12 thereof, the Regional Plan for the State
of Goa or for any part of the State prepared by the
Chief Town Planner (Planning) is required to be
considered by the Board who may suggest changes to
such plan as it may ind necessary, based on the
views expressed, and the Regional Plan may be
revised in the light of these suggestions submitted by
the Board to the Chief Town Planner (Planning) before
the Government accords its approval to the Regional
plan.
17. In areas which are declared as planning areas, for
which the Government constitutes under Section 20,
a Planning and Development Authority(PDA) in terms
of Chapter IV of the Act, the Government shall, after
consulting the Board frame a scheme to determine
the allocation of funds and the apportionment which
the Government deems these funds to be applied. In
addition to the consulted role played by the Board
under Chapter IV, in terms of the provisions of
Chapter V and VI of the Act, and more speciically in
terms of Section 28, Section 31 and 33 thereof, the
Planning Authority are required to seek the approval
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of the Board to the Land Use Plan and the
Development Plans within the planning area of the
(PDA).
18. In terms of the scheme of Chapter VII of the Act,
the Board, under the provision of Section 45 thereof
as an Appellate Authority to decide the legality of
orders passed under Section 44 of the Act by the PDA,
in matters of grant or refusal for permissions of
development; under Section 52 of the same Chapter,
where any development or change of use of land has
been carried out in a manner contrary to clauses (a)
to (f) of Section 51, the PDA may direct restoration of
the land to its original condition or demolition of any
building thereon or discontinuance of any use of that
land. In terms of Section 52, the Board acts as an
Appellate Authority against all orders passed under
Sub Section 1 of the Section 52 of the Act.
19. Looking at the scheme of the Act as observed
above, the Board plays a pivotal role in the
implementation of the provisions of the Act. In terms
of the provisions of Chapter III, the Board, which is
constituted by members drawn from various areas of
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expertise, including heads of key Government
departments dealing with planning, is required to
consider the Regional Plan prepared by the Chief Town
Planner and make changes to the same and give its
views on such plan. The Board therefore plays a key
role in all aspects of planning whilst the process of
preparation of the Regional Plan is ongoing, it acts as
the main Advisory Body to the Government in
evolving a Regional Plan for a speciied area or for the
entire State of Goa as the Government may direct.
As far as areas declared as “Planning Areas” for
which the Government constitutes a Planning
Authority, under the provisions of Chapters IV, V and
VI, the Board exercises functions similar to those
under Section 12 which are in relation to the Regional
Plan, in that it is required to consider development
schemes and Outline Development Plans (ODP) for
the planning areas. Thus, the Board guides the
planning process within a planning area and makes its
recommendations with regard to preparation of the
ODP.
20. The Board also acts as an Appellate Authority to
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consider orders that might be passed by the various
Planning Authorities under Section 52 of the Act. In
addition to the above referred speciic powers vested
in the Board, the general functions and powers of the
Board are speciied in Section 8 of the Act. Under this
provision, the Board has the power to guide and assist
Planning Authorities and to issue directions to them.
The Board also has advisory powers, where it is
empowered to advise the Government in matters
relating to planning and development and use of land.
Sub-Section 3 of Section 8 clariies that for the
purpose of carrying out any function that it is charged
with under the Act, it may exercise all such powers as
it feels are necessary or deems expedient for carrying
out that function. The powers vested in a Board under
Section 8 of the Act are therefore very wide, and in
our opinion would encompass acts such as issuing
directions to Planning Authorities to act in a particular
manner or to even issue directions modifying orders
or action taken by the Planning Authorities in a given
case. We are therefore of the view that the Board is
vested with suicient powers in terms of Section 8 of
the Act to issue directions of the nature contained in
its order dated 20.12.2021 impugned by the
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University in this petition. Having held that the Board
is vested with such powers, the question that remains
before us is whether such powers were exercised in a
manner that requires interference of this Court in its
writ jurisdiction, in the facts placed before us.
21. Under the scheme of the Act, the Government
may notify areas which were covered by the Regional
Plan as planning areas, and bring such areas within
the jurisdiction and purview of a Planning and
Development Authority; several planning areas may
from time to time be culled out from the areas
forming part of the Regional Plan and placed in the
jurisdiction of newly created Planning and
Development Authorities, which, as we have noted in
this case, has in fact been done by the Government.
From the record, we note that the Government has
notiied the Panjim Planning area on 27.09.2005
which includes the villages of Bambolim, Calapur and
Taleigao to the existing Panjim Planning area.
Subsequently, the villages of Bambolim and Calapur
were withdrawn from this planning area by
notiication dated 03.01.2006 and only Taleigao
village was retained within this planning area. The
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ODP for Taleigao Planning area was approved by the
Government on 01.02.2006 at which time a 30-metre-
wide road was planned along the Northern periphery
of the property of the University which traversed
further through Survey Nos. 216, 215, 219, 220, 202,
203, 200 and 201 which belong to the University.
22. The Panjim Planning area was by notiication
dated 06.02.2006 placed under the jurisdiction of the
NGPDA. Subsequently, the Regional Plan 2021 for the
whole State of Goa was brought into force w.e.f.
29.10.2011, efect of which was that development in
areas contiguous to the planning area under NGPDA
were governed by the provisions of the Regional Plan,
while planning within the area under jurisdiction of
the NGPDA was governed by the ODP. Obviously
therefore, on the principle that planning in contiguous
areas ought to be a process in continuum, there was
need to harmonize planning in such contiguous areas
which fell under jurisdiction of diferent authorities.
Keeping this in mind, we are of the view that the
Board would be well within its powers to ensure that
planning within PDAs and contiguous non PDA areas
falling under Regional Plan is properly done. A road
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passing through these diferent areas would obviously
be required to be planned by a body such as the
Board that acts in the interest of the public and
overall planning across these areas.
23. On 31.08.2017, the University applied for
regularization of various structures constructed by it
in its land situated in the village of Taleigao, village of
Calapur and village of Bambolim. This application was
iled before the NGPDA on the premise that the land
on which the unauthorized structures were
constructed fell in the three villages within the
jurisdiction of the NGPDA. These also included
structures in Survey Nos. 194, 195, 196, 226, 229, 230 which
fall specifically in Calapur village. After perusing the submission
plan produced by the NGPDA/Board, we have tabulated the various
structures/blocks sought to be regularized under the application
dated 31.08.2017 of the University.
Survey Block/Structure
No.
194 No block/structure was sought to be
regularized nor is any structure marked
in the survey
195 No block/structure was sought to be
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regularized nor is any structure marked
in the survey
196 No block/structure was sought to be
regularized nor is any structure marked
in the survey
226 Part of Men’s Hostel-I as depicted in
Sheet No. 28 of 33 submission plan.
229 Part of the department of Computer
Science and Technology shown in Sheet
10 of the 33 submission plan.
230 No block/structure was sought to be
regularized nor is any structure marked
in the survey
Of the above survey numbers, only Survey Nos.
194, 195, 196 and 226 are contiguous to and share a
boundary with the properties under Survey No. 193,
197 and 198 owned by the Petitioner Suresh Shetye.
From the application dated 31.08.2017 itself, which is
produced without the plan submitted by the
University in WP No. 414 of 2023, there is no
record/marking on the plan showing any proposed
along the periphery of Survey Nos. 229, 230, 194,
195, 196, 225, 226, 202, 201, 200, 142, or along
Survey Nos. 126, belonging to the University. In fact,
the plan seeks regularization of the proposed
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compound wall before the survey nos. 201 towards
the Northwest and a proposed compound wall around
the Shyama Prasad Mukharjee Stadium toward the
East in Survey No. 130 which admittedly belongs to
the Government of Goa.
24. Keeping the principle referred in para 19 and 20
above in mind, we further note that by notiication
dated 21.12.2017, the Panjim Planning area notiied
on 27.09.2005 was further demarcated and broken up
by the Government in three planning areas; the
Panjim Planning Area, the Taleigao Planning Area and
the Bambolim Planning Area (which included Calapur
Village). Even further, by notiication dated
15.02.2018, two further Planning Authorities were
constituted by the Government namely Greater Panaji
Planning and Development Authority (GPPDA) having
jurisdiction over Taleigao, Bambolim and the Kadamba
Planning Area, and the North Goa Planning and
Development Authority (NGPDA) which covered the
jurisdictions of Panaji, Mapusa, Calangute-Candolim
and Arpora-Nagoa Planning areas.
25. On 24.07.2018, ex post facto permission in the
form of an order of regularization was granted to the
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University by the NGPDA, which authority by then was
constituted for the areas within which the
regularization applicant fell in, and this application
was now taken up by the newly constituted authority
(NGPDA). The regularization was granted while the
representation dated 29.07.2016 of Dr. Suresh Shetye
was pending before the Chief Town Planner and his
representations dated 14.06.2018 and 02.07.2018
with regard to access before the same authority. On
15.10.2018, after obtaining regularization for its
structures, the Board passed its order directing the
University to remove all blockages and clear the
access road to all its neighbouring properties, which
order was ultimately challenged on 11.03.2019. What
is surprising is that after the order of the Board was
passed and communicated to the University on
28.12.2018, the University addressed two
communications to the Chief Town Planner dated
11.02.2019 and 14.02.2019, in relation to the letters
of Dr. Shetye in which it chose not to take his stand
that the compound wall unauthorisedly constructed in
the year 2010 along Shetye’s property has been
regularized by the order dated 24.07.2018. Even in
WP No.317/2019, iled on 11.03.2019, the University
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claimed that it had applied for regularization of this
compound wall in its application of 31.08.2017, but
had received post facto permission for all structures
except the compound wall; in para 36 of Writ Petition
No.317/2019, it was claimed, that with regard to the
compound wall, the application for regularization was
still pending before the Town and Country Planning
Department for the last four years. Based upon these
facts, it becomes clear that the compound wall along
Survey Nos. 194, 195, 196 and 226 belonging to the
University (contiguous to Survey No. 193, 197 and
198 belonging to Dr. Shetye) was never regularized
nor was its regularization actually sought for.
26. This issue could also be looked up from a
diferent angle. Regulation 3.2 of the Goa Land
Development and Building Construction Regulations,
2010 requires an applicant seeking technical approval
for construction or development, to submit, along
with its application a set of drawings which would
include a site plan containing boundaries and
dimensions of the plot, the all proposed as well as
existing buildings or structures in or beyond the plot
amongst various other requirements. The plans shall
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consist of loor plans, elevations, sections, roof plans,
plans indicating septic and soak pit and contour plan.
Regulation 3.4 speciies the standard colour
notations to be made in such plans submitted by an
applicant and speciies Plot Boundaries in the Site and
Building Plans to be shown in Black colour while the
outline of the Proposed Work is required to be shown
in Red colour. Perusal of the plans produced by the
NGPDA/Board before us would show that in none of
the plans produced before us is the area or line
showing the compound wall claimed to be regularized
along the periphery/boundary of Survey Nos. 194,
195, 196 and 226 demarcated in the required colour
code Red for the proposed works or works proposed
to be regularized i.e. the boundary wall. This would be
another pointer to the fact that the record does not
support the contention of the University that it had
either sought regularization of the compound wall or
the contention that the same was still pending before
the NGPDA (in Writ Petition No.317/2019) or that it
was granted.
27. As further noted by us, the submission plan of
the University uses the nomenclatures “existing
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compound wall” and “proposed compound wall” at
diferent locations. Neither of these nomenclatures
are used by the University in its submission plan for
regularization in any area along the periphery of
Survey Nos.200, 201, 202, 225, 226, 196, 195, 194,
230 and 229 which fall in Calapur village. The words
“proposed compound wall” are used in land under
Survey No. 130 which is in possession of the
Government of Goa and it is used in Survey Nos.216
and 238 which fall in village Taleigao. Thus, there was
no proposal, at least shown in the plan under
nomenclature “proposed compound wall” along the
periphery of Survey Nos. 194, 195, 196 and 226
belonging to the University and contiguous to lands
under Survey Nos.193, 197 and 198 belonging to Dr.
Suresh Shetye. This conclusively demonstrates that
the compound wall constructed on the Northern
periphery of Survey Nos. 194, 195, 196 and 226
belonging to the University was neither sought to be
regularized nor was it in fact granted a regularization
permission/approval under regularization order dated
24.07.2018 of the NGPDA.
28. By the impugned order dated 04.03.2022, the
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Board, in exercise of the jurisdiction and powers
conferred upon it under Section 8 of the Act, has
rightly proceeded on the assumption that the order
dated 27.10.2015 had not been challenged further by
the University and had attained inality and had
therefore to be complied with. The regularization
order dated 24.07.2018, having not actually granted
regularization/ex post facto permission to the
compound wall constructed along the periphery of
Survey Nos. 194, 195, 196 and 226 belonging to the
University and contiguous to lands under Survey
Nos.193, 197 and 198 belonging to Dr. Suresh Shetye,
said order does not therefore come in the way of the
order dated 27.10.2015 being enforced. The direction
of the Board contained in Clause (a) of order dated
27.10.2015 therefore does not call for interference by
this Court, more so since no inirmity can be found
with it on the basis of the indings arrived at by us
above, and further the directions contained in the
impugned order of the Board dated 04.03.2022 to the
University, requiring it to remove blockages as per
order dated 27.10.2015 is perfectly in order. The
consequent direction issued by the Board that the
PDA shall relook into its permission granted for
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compound wall, in our opinion, does not sufer from
being in excess of powers vested in the Board; in fact,
considering that the areas in question now fall in
three diferent villages and overlap with areas
contiguous thereto falling under jurisdiction of the
Town Planning Department under RP 2021, it would be
logical that the PDA relooks at its permission granted
for the compound wall proposed under the
regularization plan, however restricted to the
periphery of the property of the University in the
villages of Taleigao and Bambolim and in relation to
the regularization plan where the University proposed
regularization only of the areas depicted as “proposed
compound wall”.
29. In Tata Cellular vs. Union of India reported in
(1994) 6 SCC 651, which is referred to in Municipal
Council, Neemuch (supra) relied upon by the
University, whilst considering the scope of the powers
of the High Court of judicial review under Article 226
of the Constitution of India, the Supreme Court has
held that the High Court is required to conine itself to
the questions of legality, and is concerned with:
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WP-54-2023 w WP-414-2023i. Whether a decision-making authority exceeds
its power.
ii. Has committed an error of law.
iii. Has committed a breach of the rules of natural
justice.
iv. Has reached a decision which no reasonable
Tribunal would have reached or
v. Abused its powers.
On examining the impugned order dated
20.12.2021 which is quoted in communication dated
04.03.2022, the Board, whilst considering the
representation of Dr. Suresh Shetye and the
representation of the Goa University seeking
modiication of the Board’s order dated 27.10.2015,
has considered in detail the observations of the Sub-
Committee in its proceedings; whilst considering the
representation of the University seeking modiication
of its order dated 27.10.2015, the Board has taken
into consideration the objection raised by the learned
Advocate for the University that it had no powers to
decide the representation of Dr. Suresh Shetye, and
making reference to the observations in para 27 and
28 of this Court’s order dated 19.08.2021 and has
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rejected the same. The rejection of the contention of
the University that the Board lacked powers to decide
the representation of Dr. Suresh Shetye has to be
sustained on a reading of the observations made in
paragraphs 20, 23, 24 and 25 of our judgment dated
19.08.2021 where it has been speciically recorded
that the learned Advocate for the University had
conceded that the TCP Board was the appropriate
authority to consider the representation of the
University for modiication of order dated 27.10.2015
along with the representation of Dr. Suresh Shetye
(Respondent No.3 in that petition).
30. The Board has rightly considered all the above
observations in the impugned order and though it has
not recorded separate reasons to pass directions
contained therein, its considerations of the
observation of the Sub-Committee as well as the
content of its earlier order dated 27.10.2015 are
recorded in detail in the impugned order. This is not
an order where there are no reasons at all recorded
therein but this is a case where all the necessary facts
have been examined by the Board i.e. the earlier
order dated 27.10.2015, the Sub-Committee’s
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observations and report and the material placed by
Dr. Suresh Shetye with his representations, all of
which ind reference in the impugned order. The
judgment cited by the learned Senior Advocate for the
University in Kranti Associates Pvt. Ltd. (supra) and
Sebastiana Cardozo (supra) would not apply to the
facts of this case since those were judgments
rendered in a case where there were no reasons at all
found in the impugned order. In the present case, on
conining ourselves to the observations made by the
Supreme Court in Tata Cellular (supra) as referred by
us above, no case for interference has been made out
by the University in its petition.
31. Since we have concluded that the compound wall
constructed by the University along the periphery of
Survey Nos. 194, 195, 196 and 226 belonging to the
University and contiguous to lands under Survey
Nos.193, 197 and 198 belonging to Dr. Suresh Shetye
was not accorded any regularization by the NGPDA
under its order dated 24.07.2018, it is obvious that a
direction would be issued to the NGPDA to act upon
the complaint dated 08.09.2022 of Dr. Suresh Shetye
and to take appropriate action in terms of the
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provisions of the Town and Country Planning Act as it
deems it. Needless to state, that in the event of the
University now seeking regularization of the
aforementioned compound wall, it would be open to
the NGPDA to consider the same in terms of the
provisions of the Act and impose such conditions of
regularization as it deems it considering the
contentions raised by Dr. Suresh Shetye or for that
matter considering the site conditions and the
proposed ODP.
32. Consequently, we pass the following order:
i. Writ Petition No. 414/2023 is dismissed.
ii. In Writ Petition No.54/2023, Rule is made
absolute in terms of prayer clause (a).
iii. In the event of the University now seeking
regularization of the compound wall referred to
in paragraph 31 above, it would be open to the
NGPDA to consider the same in terms of the
provisions of the Act and impose such
conditions of regularization as it deems it
considering the contentions raised by Dr.
Suresh Shetye or for that matter consideringPage 72 of 73
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WP-54-2023 w WP-414-2023the site conditions and the proposed ODP; the
regularisation application if made shall be
disposed of within a period of six weeks from
the date of this order.
iv. No costs.
v. Pending Misc. Civil Applications, if any, stand
disposed of.
VALMIKI MENEZES, J. M. S. SONAK, J.
Page 73 of 73
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