CANCELLED: The permission extended to the ‘Enchanted Woods’ project of villas and flats proposed to be put up by Gera Developer Pvt Ltd was scrapped by the Goa Bench of the Bombay HC despite the developer claiming clearance from the NGT. (abv) Illegal constructions that have to be demolished
BY RAJAN NARAYAN
Even if a builder claims that he has all permissions, a project can still be scrapped if the permissions were given mindlessly. All those who invested heavily or endorsed premium Gera projects stand the risk of losing their money. The Goa Bench of the Bombay HC comprising Prithvirak K Chawan and N M Jamdar has set aside the technical clearance given to ‘Enchanted Woods’ in the Betqui Candola village. This was in response to a public interest litigation filed by the Betqui-Candola Samvardhan Samitee, represented by advocate Nigel De Costa Frias, questioning the basis on which the TCP, Panchayat and GSPCB, cleared the project without considering the impact on the ecology and water, power and waste management infrastructure, in the small scenic village of 10,000 residents. By implication the cancellation of the permission also applies to the Adwalpalkar
project in same area
VIRAJ Bakre vividly remembers the first time he heard about the Gera threat to Candola village, that would go on to consume the next six years of his life. It was a warm evening in early February 2013, when he attended a meeting called by the Shantadurga Devlay Residents’ Association (SDRA) to discuss a proposed development in the village. Fr Bismarque Dias was present and this was the first of many meetings convened to make the villagers aware of the threat to their village.
Fr Bismarque showed them an advertisement for the ‘Enchanted Woods’ project on the Gera website. The colony residents were shocked, but clueless about further action. It was Fr Bismarque who taught them about RTIs and got them started on collecting information they would need to fight the builders.
Fr Bismarque’s meeting had set the ball rolling, but a lot had to be done. The colony residents convened a meeting to chalk out further action. Arun Madgavkar and many villagers were invited. The Betqui Candola Samvardhan Samitee (BCSS) was registered under the Societies Registration Act in 2013 with representatives from various wards of the Panchayat. Arun Madgavkar was appointed president and Viraj Bakre volunteered to assist with all the record-keeping and documents.
As the BCSS learned more, they realised to their shock and dismay, that it was their own ward panch, who was also sarpanch, who was instrumental in giving all the licenses and NOCs to Gera. The BCSS (represented by Arun Madgavkar as the authorized member) filed suit against Gera Developers, the village Panchayat of Candola through its secretary, the State of Goa through the Chief Secretary, the Town Planner, the Chief Town Planner and the GSPCB.
Fr Bismarque remained a staunch supporter and was always available to help. He introduced the group to many environmental activists in Goa. After his tragic death, Abhijeet Prabhudesai and Diana Tavares of Federation of Rainbow Warriors continued providing strategic support to the society. BCSS owes them, the Goa Foundation, and other senior environmental activists a debt of gratitude for extending unstinted support over the past few years. Arun Madgavkar and Viraj Bakre remain the prime movers in this 6-year-long struggle, handling all RTI and court matters. The rest contribute in local activities and the Panchayat, although many lost steam as the fight dragged on.
However, finally the years of battling big real estate seems to have borne fruit. In a landmark judgment, the Goa Bench of the Bombay High Court, comprising of Justices N M Jamdar and Pritviraj K Chauhan, has ruled that “the impugned technical clearance granted by the Town and Country Planning Department of Goa dated 20th March and the construction license granted by the Betqui Candola village Panchayat dated 27th November 2015 are quashed and set aside”. This is despite Gera Developers claiming that an appeal by the BCSS against the environment clearance granted to the project was dismissed by the National Green Tribunal (NGT) on the issue of limitation. The HC pointed out that the NGT only disposed of the petition filed by the villagers of Candola on the technical ground that the appeal was filed beyond the period of limitation.
In its order, the Goa Bench of the Bombay HC rejected the argument of Gera Developers that once all permissions are granted no further scrutiny is permissible or required.
The HC noted “the respondent authorities have a duty to ensure that the object of the statutes under which they are established are not defeated. The relevant planning legislation in the state of Goa imposed a duty on the planning authorities
and the village Panchayats to scrutinize the grant of permission with due care. These legislations do not expect the authorities to be mere rubber stamps oblivious to realities and the long term sustainable planning goals. Non-consideration of relevant criteria and acting mechanically defeats the purpose of the conferment of power and are well settled grounds of Judicial review. Grants of such permission cannot attach themselves to a label of finality and seek immunity from judicial review. […] Having considered the matter in detail we conclude the permissions granted by the planning authorities and the construction licenses by the village Panchayats are liable to be quashed and set aside.”
A detailed study of the 64-page judgment shockingly reveals that the Town & Country Planning (TCP) Authority, the Goa State Pollution Control Board (GSPCB) and the sarpanch of the Candola village conspired with the Gera Developers to grant illegal permission for their mega housing project.
The mega housing project, besides having 320 residential units, would also have had several commercial hubs and recreational facilities. By implication the judgment also applies to Adwalpalkar Constructions, who have an even larger project in the village.
IDYLLIC LIFE THREATENED
The Betqui Candola village which is part of Ponda Taluka is a small village with a population of around 10,000. The people of the village depend primarily on agriculture for livelihood. It is a village which has undulating hills and substantial tree cover. The villagers were understandably concerned over the effect that two mega projects by Gera’s and Adwalpalkar Constructions would have on the available infrastructure, water sanitation and waste management. Villagers raised concerns regarding the effect on the ecology of the project and infringement of their fundamental rights.
The court pointed out that the rigours of judicial scrutiny and the deference the court may give to the statutory permission may be different if some minor development work in proposed. But if the magnitude of the project is such that it may overwhelm the resources of the village, then the position would be different. The court went on to add “the authority have simple omitted various crucial aspect from consideration.”
Commenting on the impact of the Gera project on the basic amenities of the village the court noted that “Hydrological data of the area shows there are around 68 water wells and 45 ponds and tanks. The hydrological reports indicate the areas where the project was sought to put up recharges the fresh water to the surrounding areas. The GSPCB which granted the consent to establish under the Air & Water Act does not seem to have applied its mind to the impact of the Gera project on the water security of the village. The environmental clearance dated 31st October 2016 reveals that the water needs during construction will be 150 CMB and 494 CMB during the operational phase. The PWD has however made it clear that it is in no position to supply the water requirements of the projects. A new water supply project is supposed to come up to augment the water supply but no work on it has started. The Executive Engineer has made it clear that the PWD is not in a position to supply water to domestic new users in the mega housing projects proposed in the village.”
The court commented “the question which goes to the roots of decision making in the present case is the implications that the development may have on the water supply to the villagers, the future occupants of the village without effecting ecology. The state is on record admitting that it is unable to supply water in the present state of affairs”.
Referring to the role of the Panchayat in granting construction license dated November 27, 2015, the court noted that there is no reference to how the water table would be affected and how water provided to the project would impact the existing population. “In such circumstances it does not need special expertise to estimate the stress that this project will place on the availability of water resources to this village with a population of 10,000”. Significantly the construction license in 2012 was issued not by the secretary of the Panchayat, as is the norms, but by the sarpanch, as no conversion sanad had been submitted. This would suggest collusion between the sarpanch and Gera Development Ltd.
In 2015, when there was a Gramsabha resolution not to issue a construction licence to any mega project in the village, the secretary was forced to give a licence by the deputy director of Panchayat, despite the fact that no Environmental Clearance had been submitted to the Panchayat.
Coming to waste management no indication is given in the construction license granted, on how the biodegradable and non-degradable waste will be disposed of by various existing agencies. This aspect has not been made clear either by the state or the village Panchayat on whether they have the capacity to handle the waste generated. “In the argument it is the stand of the TCP department that the planning department grants a permission. The Candola Panchayat has overlooked that in the technical clearance it is stated that the village Panchayat should ensure availability of power water and other infrastructure. The village Panchayat has not bothered to file a reply to the petition of the villagers. It is clear that the village Panchayat will not able to cope with the issue of sanitation and garbage disposal that the project will generate.”
The main culprit is the Chief Town & Country Planner (CTP). The developer claimed and secured an FAR of 80% even though it had been decided under the RP 2021 that the FAR cannot exceed 60% in VP 2 villages particularly in mega projects. The builder sought to confuse the TCP authorities by submitting a series of contour plans which did not match each other or the ground reality. In fact the HC had asked the Chief Town Planner in its order dated 09/09/14 to satisfy the petitioner about the points raised, including the actual contours of the area of the project.
Despite the same, CTP approved the new plan after Gera submitted an old contour plan which did not show the massive changes due to illegal hill cutting which was reported to the court by the senior town planner after a survey of the area. The court pointed out that the Gera ‘Enchanted Woods’ project in Candola is not a public utility project. The total plot area permitted to be converted is 1,02,384 sq mtrs. The proposed construction which includes type 1 villa of 1,741 sq mtrs, type 2 of 2,166 sq mtrs, type 3 of 2,184 sq mtrs. Besides this there will be type 1,2,3,4,5 villas. The projects also includes town centres and 384 flats. The project is not only residential but also has commercial call centres which will need parking for 24 on the surface and 25 in the basement. The record demonstrates that authorities mechanically granting permission, defeats the very purpose of planned development.
Under the TCP Act it is forbidden to build on hilly terrain with dense tree canopy except with the required permissions. The draft regional plan 2021 sent for approval to the Panchayat had marked almost half the area of survey no 33/1 of Candola village as No Development Zone due to steep slopes and forest in this area (43,070 sq mts). The Forest Department has asked for only 14,450 sq mts to be deducted as under forest cover. Also the S.O.I. topography sheet shows the highest point as 61 mts and the boundary as 30 mts above m.s.l clearly pointing to steep slopes. Villagers have pointed out that the developers have submitted different contour plans on different occasions. The TCP Department has stated that the official contour plan is not available on record. And so also the contour plans submitted by the developer have gone missing from the files of the department.
The villagers claim that the CTP granted permission without verifying the contour plan and has ignored the file noting of its own department. The TCP Department has not clarified how much of the land is on a gradient where no construction is permissible. The villagers pointed out that the survey of the property was necessary to determine the sloping area under the No Development Zone.
There is also an issue regarding the access road. The villagers have pointed out that there is no 12 mt access road to the site as required. Also that the 6 mt road now existing is illegal and that traffic has to pass through the internal road of the residential colony of “Devlai”. Gera developers have contended that under the regulations the roads required are 8 mts only for commercial and that for group housing a 6 mt road has been considered.
There are also issues regarding the role of the communidade in colluding with Gera Developers Pvt Ltd who purchased the
property in September 2007. The developers applied to the collector of North Goa on 31st December 2008 for conversion sanad. It also sought change of land use from orchards to settlement for an area of 1,27,120 sq mtrs. The area to be converted was to be determined only after strict verification of the contours and subject to road access to the property as per the gazette notification 1996. The attorney of the communidade of Candola in 2007 seems to have granted the application of the developers, giving permission for widening the 3 mt road to a 12 mts wide road to whomsoever it may concern without giving any thought to the impact it would have on the life and infrastructure of the village. (As per the rules of the communidade only the Administrator can give permission, that too only after the general body approves the same.)
It would appear that all the authorities concerned with granting permission for the project failed to apply their mind. Everyone blindly granted permission without applying their mind to the two mega projects — that of Gera with 818 dwellings and that of Adwalpalkar’s with 500 additional house units.
The TCP Department granted permission for conversion based on the plan submitted by a surveyor of the developers and not an independent survey.
The CTP ignored the objections from his own department.
The Attorney of the communidade agreed to sell the land without considering the consequences.
The GSPCB granted permission under the Air and Water Act despite the PWD making it clear that it is in no position to provide water and power to the project.
The environmental authorities also did not consider the waste management aspect of such mega projects.
The water supply department was asked whether it would able to supply water to this mega projects. The categorical answer was “with the existing infrastructure and pipeline network it is not possible to supply water to new multi-development projects.”
Even with respect of the hill cutting the villagers pointed out that the permission granted on March 28, 2015, was issued without site inspection.
Even the conversion from orchard to settlement was not done with due application of mind.
MORE REVIEW REQUIRED
APART from Gera’s ‘Enchanted Woods’ project in Candola village, its projects on the Kadamba plateau and Patto area need to be reviewed in the light of the judgment in the Candola case. It seems to be clear from the judgment that TCP and other officials responsible for environmental clearances, and the village Panchayat members themselves, were colluding with developers to destroy the village. It is very sad that the sarpanch of Candola who is the guardian of the village should have given permission to mega projects which would have destroyed the small beautiful village with population of just 10,000.
This is not true of only Candola but almost every village at Goa. Not only villages but large hilly areas like the Kadamba plateau. The green Goa of our days is all set to vanish to satisfy the greed of officials enjoying the patronage of politicians.
WHAT THE TCP ACT SAYS…
Section 44 of the Goa Town and Country Planning Act deals with grant of permission, which reads thus: “44. 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 accompanied by such documents and plans as may be prescribed.
(2) (a) In the case of a Department of the Central or Union territory Government or local authority intending to carry out any development in respect of, or change of use of any land, the Department or authority concerned shall notify in writing to the Planning and Development Authority of its intention to do so, giving full particulars thereof accompanied by such documents and plans as may be prescribed, at least two months prior to the undertaking of such development or change, as the case may be, and shall obtain permission in respect thereof.
(b) Where the Planning and Development Authority has raised any objection in respect of the conformity of the proposed development or change of use either to any Development Plan under preparation or to any of the regulations in force at the time, or due to any other material consideration, the Department or authority concerned, as the case may be, shall, either make the necessary modifications in the proposals for such development or change of use to meet the objections raised by the Planning and Development Authority or submit the proposal for such development or change of use together with the objections raised by the Planning and Development Authority to the decision of the Government.
(c) The Government on receipt of such proposals together with the objections of the Planning and Development Authority shall, in consultation with the Chief Town Planner (Land Use), either approve the proposals with or without modifications or direct the Department or authority concerned, as the case may be, to make such modifications in the proposals as they consider necessary in the circumstances.
(3) On an application having been duly made under subsection (1), and on payment of the development charges, if any, as may be assessed under Chapter IX, the Planning and Development Authority may—
(a) pass an order —
(i) granting permission unconditionally; or
(ii) granting permission subject to such conditions as it may think fit to impose; or
(iii) refusing permission; or
(b) without prejudice to the generality of clause (a), impose conditions—
(i) to the effect that the permission granted is only for a limited period and that after the expiry of that period, the land shall be restored to its previous condition or the use of the land so permitted shall be discontinued; or
(ii) for regulating the development or use of any land under the control of the applicant or for the carrying out of Amrut 17 PILWP No.14-16dt.27-09-2018 works on any such land as may appear to the Planning and Development Authority expedient for the purpose of the permitted development.
(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.
(5) When permission is granted subject to conditions or is refused, the grounds for imposing such conditions or such refusal shall be recorded in writing in the order and such order shall be communicated to the applicant in the manner prescribed.” Thus, the Section 44(4) requires the Planning and Development Authority to have regard to the provisions of the development plan. The proposals and provisions are likely to be made, to the relevant bye laws or regulations of the local authority, and any other material consideration.
PANCHAYAT ACT GUIDELINES
The Goa Panchayat Raj Act, 1994 empowers the Panchayat to consider the applications for erection of building falling within their jurisdiction. Section 66 of the Goa Panchayat Raj Act reads thus: “66. Regulation of the erection of buildings.—
(1) Subject to such rules as may be prescribed, no person shall erect any building or alter or add to any existing building or reconstruct any building without the written permission of the Panchayat. The permission may be granted on payment of such fees as may be prescribed.
(2) If a Panchayat does not, within thirty days from the date of receipt of application, determine whether such permission should be given or not and communicate its decision to the applicant, the applicant may file an appeal within thirty days from the date of expiry of aforesaid period, to the Deputy Director who shall dispose of the same within thirty days from the date of filings of such appeal. If the Deputy Director fails to dispose of the appeal within thirty days, such permission shall be deemed to have been given and the applicant may proceed to execute the work, but not so as to contravene any of the provisions of this Act or any rules or bye-laws made under this Act.
(3) Whenever any building is erected, added to or reconstructed without such permission or in any manner contrary to the rules prescribed under sub-section (1) or any conditions imposed by the permission granted, the
(a) direct that the building, alteration or addition be stopped; or
(b) by written notice require within a reasonable period to be specified therein, such building alteration or addition to be altered or demolished.
(4) In the event of non-compliance with terms of any notice under clause (b) of sub-section (3) within the period specified in the notice, it shall be lawful for the Panchayat to take such action as may be necessary for the completion of the act thereby required to be done, and all the expenses therein incurred by the Panchayat shall be paid by the person or persons upon whom the notice was served and shall be recoverable as if it were a tax imposed under this Act.
(5) Where the Panchayat fails to demolish the building which is erected, added to or reconstructed without the permission of the Panchayat, or in any manner contrary to the rules made under the Act or any conditions imposed in the permission, within a month from the date of the knowledge, the Deputy Director shall assume the powers of the Panchayat under sub-sections (3), (4) and (5) and take such steps as may be necessary for the demolition of such building.
(6) Notwithstanding anything contained in the foregoing provisions, the Block Development Officer concerned may, by notice addressed to the person responsible, stop any construction which is being constructed in violation of the provisions of the Act or rules or bye-laws made thereunder and refer the case to the Deputy Director of Panchayat. On receipt of the notice, such person shall forthwith stop the same.
(7) An appeal shall lie to the Director, within a period of 30 days from any order of direction or notice issued under any of the provisions of this section and the decision of the Director on such appeal shall be final.
Explanation:— For the purpose of this section, failure to communicate the decision by the Panchayat under subsection (2) and failure to demolish the building under subsections (3) and (4) shall be deemed to be ‘remiss’ in the performance of duties by the Panchayat. Section 66(1) of the Goa Panchayat Raj Act deals with the permissions to be granted by the Village Panchayat. Regulations prescribe a questionnaire which has to be fulfilled by the applicant. The applicant also has to submit drawings to show the dimensions of the plot, direction proposed as well as existing structures, access, road widening, distance, location of drains, water bodies and trees, existing well etc. A location map and parking layout has to be produced.