JUDGMENT
A.S. Aguiar, J.
1. The above writ petition has been registered on cognizance being taken by this Court on the complaint dated 22-3-99 filed by one Diago Antao, complaining of infringement of building regulations and unauthorised constructions carried out by M/s. Koshy Builders. More specifically, the complaint refers to the following projects/constructions namely:— (1) Aristocrat Apartments at Mangor alleging that Koshy Builders had exceeded FAR to the extent of 500 sq. metres; (2) Violation of FAR and construction of additional building next to Koshy Chambers, Vaddem; (3) Illegal extensions to Mamta Apartments near Natraj Restaurant, Vaddem; (4) Illegal structures put up in Oscar’s plot, opposite to Vasco clinic next to Railway Lines.
2. It is the case of the complainant that the illegal construction activity of the said Koshy Builders if unchecked would set a bad precedent; that if the said Builders are not taken to task they will continue constructing further illegal structures and it is apprehended that there will be proliferation of unauthorised constructions. It is also prayed that the authorities who have given the permission for constructing and issued occupancy certificates, etc. to the said Builders be taken to task.
3. Pursuant to the said complaint, notice was issued to the Chief Officer, Vasco Municipal Council, calling for his report. The Chief Officer of the Mormugao Municipal Council, Vasco-da-Gama, submitted his report dated 14-5-99 from which it appeared there was substance in the complaint of the said Diogo Antao and that the Municipal authorities had shown laxity in taking action against the illegal constructions. Hence the complaint came to be registered as Public Interest Litigation Writ Petition No. 196/99 and notices issued to the Chief Officer, Mormugao Municipal Council and M/s. Koshy Builders.
4. The Managing Director of Koshy Builders (respondent No. 2) has filed an affidavit-in-reply wherein he has stated as follows:—(i) He had nothing to do with Mamata Apartments near Natraj Restaurant at Vaddem; (ii) He admits that Aristocrat Apartments at Mangor, have been built by him; (iii) He also admits that the building referred to in para 2 of the said letter, namely illegal additional building next to Koshy Chambers, Vaddem is a building constructed by him on the plot of land belonging to Ashok Sankwalkar and others and pointed out that he has filed a writ petition in this Court, namely Writ Petition No. 231/99 praying for several reliefs; (iv) He also admits that the building opposite Vasco Clinic i.e. Oscar Apartments has been developed by him.
5. So far as the building, more commonly referred to as Belmira Apartments on a plot of land belonging to Ashok Sankwalkar (Item No. 3 of the complaint) is concerned, the petitioner had filed Writ Petition No. 231/99 seeking reliefs inter alia for a writ of mandamus to Vasco Planning and Development Authority for issue of NOC in respect of the revised plans and for a writ of mandamus directing respondent No. 1 to approve the revised plans as approved by Vasco Planning and Development Authority. The above writ petition along with Writ Petition No. 231/99 were heard at length and at the fag end of the arguments, wiser Counsel seem to have prevailed and Koshy Builders/petitioners in Writ Petition No. 231/99 applied for withdrawal of the said petition which was allowed and dismissed for non-prosecution and disposed of.
6. The present writ petition, namely 196/99, is confined to the complaint of unauthorised constructions in ‘Oscar Apartments’ and ‘Aristocrat Apartments’ only.
7. In connection with ‘Oscar Apartments’, Koshy Builders in their affidavit have stated the same is constructed on the property bearing Chalta Nos. 40, 43, 77, 78 and 81 of P.T. Sheet No. 102 belonging to Mrs. Ermelinda D’Souza and Pricilla D’Souza of Vasco-da-Gama which was purchased by Koshy Builders pursuant to the agreement, the total area of the plot being 486 sq. metre. M/s. Koshy Builders submitted plans for approval for construction of multi-family dwelling complex to the Vasco Planning and Development Authority (Vasco PDA) in the year 1994. Sometime in 1994, Vasco PDA approved the plans for construction of two buildings, namely Blocks A and B. The Mormugao Municipal Council also approved the said plans and issued licence on payment of requisite fee on 3rd January, 1995. According to respondent No. 2/Koshy Builders, on approval of the plans, he commenced construction of the building and while in the process of carrying out the construction, decided to carry out certain deviations and modifications during the construction and also utilised some more FAR and coverage of the plot as he had balance FAR and coverage available (para 8 of the Affidavit-in-Reply of Koshy Builders). Respondent No. 2 has further stated that he constructed Block ‘A’ sometime in the year 1998 with the desired deviation. However, he did not take the Occupancy Certificate nor allowed anyone to occupy the same. Koshy Builders further admit that in the deviation of the original approved plan, he has constructed a floor over Block A to accommodate 2 more flats and therefore he submitted revised plans for approval of the Vasco PDA on 1-1-1999. He further states that Vasco PDA approved the revised plans on 28-5-1999 and he effected payment of the requisite development charges for the said approval. It is the contention of Koshy Builders that the construction of Block A conforms with the revised approved plans. He further states that he has thereafter submitted stamped approved plans to the Mormugao Municipal Council for its approval. It is the contention of Koshy Builders that the said building, in fact, fits within the Rules and Regulations under the Town and Country Planning Act.
8. Regarding ‘Aristocrat Apartments’, Koshy Builders states that they have constructed four flats on the floor below the road level since they had extra FAR available for the said construction. Koshy Builders in their affidavit state that approval of the Council and the Vasco PDA for the four flats is not yet granted. It is pointed out that the area of the plot is 3728 sq. metres. The permissible FAR is 1. The coverage is 40%; that Vasco PDA granted permission to Koshy Builders to construct the said building on 11-4-1991 and thereafter the Mormugao Municipal Council granted permission on 13-8-1991. It is admitted that originally the approved plans was for 40 flats and that Koshy Builders have constructed the said 4 flats above the 40 flats for which permission has not been granted. According to Koshy Builders, the approved plans were for five Blocks A, B, C, D and E, consisting of ground plus three upper floors. In view of the difference in the road level in one of the buildings, they could get clearance from the ground to the road level of 3 metres as the rear of the said building was abutting on a slope. Coverage of Blocks A, B, C and D is as per the approved plans consisting of 40 flats for which Occupancy Certificate has been given. It is contended that the consumed coverage therefore with the construction of the said 40 flats is 27.50% as against 40% available and that the total built up area of all the floors as per the approved plans works out to 2742.40 sq. metres consuming a FAR of 91.48%. It is contended by Koshy Builders that even taking into account the four additional flats which have been constructed without approved plans, still he has a balance of FAR available of 8.52% and coverage of 12.50%. It is further pointed out that the building was constructed in the year 1995 and is occupied since 1995 and that the said four additional flats have also been sold to purchasers who are in occupation; Koshy Builders state they have applied for regularization of the said four flats by application dated 24-11-98 as the same is within permissible limits. It is further pointed out that Koshy Builders have requested Vasco PDA by application dated 11-6-99, to reconsider the approval of the said revised plans. However, the same has still not been granted.
9. The intervening applicants, viz. ‘Aristocrat Apartments Co-operative Housing Society Ltd.’ consisting of the occupants of the said Apartments have filed an application being Misc. Civil Application No. 153/2000 for being heard and producing necessary documents in support of the petition. The said Intervenors claim to be interested in having the illegal constructions carried out by Koshy Builders demolished. They state that they have been pursuing the matter of illegal activities carried out by Koshy Builders before various authorities right from the year 1997 and that a complaint has been filed by one of its members Shri Macario Rodrigues dated 8th December, 1997 against the illegal activities of respondent No. 2/Koshy Builders. The applicants point out that the Vasco PDA had issued demolition order dated 25-6-1998 against the illegal conversion of parking area into four flats by Koshy Builders. However thereafter no action has been taken by the Vasco PDA and hence they have addressed a communication dated 16-2-99 calling upon Vasco PDA to take action in terms of notice dated 25-6-1998; that since no action was taken, they have addressed a communication dated 20-1-2000 to respondent No. 1/Chief Officer, Mormugao Municipal Council, calling upon the Municipal Council to take action in terms of the provisions of the Goa Municipalities Act.
10. It is the grievance of the applicants that in view of the illegal construction of four flats in the basement by Koshy Builders, the Vasco PDA is not granting NOC for transferring the said Apartments with the land beneath it as required under the provisions of the Town and Country Planning Act and therefore the said applicants are interested in getting the illegal constructions demolished so as to enable them to obtain the transfer of the said Apartments in favour of the applicant society. It is further pointed out by the applicants that Koshy Builders have illegally cut the land in and around the building for the purpose of giving proper ventilation to the four illegal flats in the basement; due to the cutting of the said land, a big ditch is created which is hazardous and likely to result in some mishap or accident. It is further pointed out that due to the illegal flats, there is a problem of water scarcity and also overflowing of the septic tank due to increase of residents in the building.
11. The Chief Officer, Mormugao Municipal Council and the Member Secretary of Vasco PDA have filed affidavits-in-reply setting out the action taken by them in connection with the unauthorised/illegal constructions put up by Koshy Builders. According to the Chief Officer, Mormugao Municipal Council, show cause notice was issued to Koshy Builders for carrying out illegal constructions viz. four flats in the basement of the building in contravention of the construction licence. The said show cause notice was replied to by Koshy Builders stating that there is a second phase of construction which was to come up and as there was some area for constructing, additional four flats were constructed on the stilt floor and that necessary plans would be submitted to Vasco PDA for approval. The Chief Officer has further stated that vide notice dated 1-6-1999, he has ordered demolition of the illegal construction within 15 days of receipt of the notice; that no Occupancy Certificate has been issued by the Municipal Council in respect of these four flats and that on inspection, it is found that these four flats are being illegally occupied.
12. The Vasco PDA have, in their affidavit, stated that development permission was granted to Koshy Builders on 11-4-1991; that the approved plans were for construction of 40 flats consisting of 5 Blocks, namely Blocks A, B, C, D and E and each Block consisting of ground plus three upper floors; and that a complaint was received against Kolshy Builders for constructing 4 basement flats despite no plans having been approved for construction of the four flats in the basement. Pursuant to the complaint, the site was inspected on 16-1-98 by the officials of the Planning Authority and on noticing the additional four flats on the stilt floor having been constructed in violation of the plans approved, a show cause notice dated 19-2-98 was issued to Koshy Builders to show cause why action under section 52 of the Town & Country Planning Act, 1974 for demolition of structures referred to should not be initiated. The said show cause notice was replied to by Koshy Builders vide letter dated 3-3-1998 contending that they had not exceeded the FAR; that out of total available area of 3728 sq.metre for development, they had consumed only 2742.40 sq.metre and as the site condition was slopy, the Builders were forced to construct 4 residential flats on the stilt floor. It was further submitted that they are in the process of preparing the necessary plans and that the plans would be submitted for approval. The affidavit of the Vasco PDA further states that the Planning Authority held a meeting on 6-4-1998 and it was decided to inform the Builders to submit revised plans within 15 days, failing which action would be initiated under section 52 of the Town & Country Planning Act, 1974. This was communicated to the Builders on 12-4-1998. Since no revised plans were submitted by Koshy Builders nor any reply sent, the Builders were called upon vide notice dated 25-6-1998 to demolish and remove the illegal developments within 31 days from the receipt of the said notice. Thereafter the matter was referred to the State Demolition Squad at Panaji by the Planning and Development Authority vide letter dated 6-10-1998. By application dated 25-11-1998 M/s. Koshy Builders submitted plans for modification, i.e. addition to the construction of the building earlier approved and requested for approval.
13. The affidavit further states that after site inspection was held on 15-4-1999, it was found that on account of the revised plan, the total built-up area would increase by 340.01 sq.metre. It was also found that the FAR was also increased by 78.29 sq.metre than what was permissible. It was also found on inspection that the additional flats were not properly accessible. The matter was thereafter discussed by the Planning and Development Authority at its meeting on 17-4-1999 and it was decided to reject the revision proposal inter alia on grounds viz. that the FAR consumed was more than permissible; that the height of the building where there is a basement, is more than 14.20 metres and hence the same would require lift and fire fighting staircase and that the basement being used for habitable purposes, had inadequate access, light and ventilation. Accordingly Koshy Builders were informed by letter dated 30-4-1999.
14. Coming next to ‘Oscar Apartments’, the affidavit filed by the Chief Officer, Mormugao Municipal Council, discloses that an application had been made by the owners for construction licence for a multi-family dwelling residential/commercial building along with the required development permission issued by the Vasco PDA. The plans were thereupon approved by the Mormugao Municipal Council and in terms of the approved plans, the total plot coverage is 49.89% and the FAR utilised is 1.85. The total floor area consumed is 899.12 sq.metre. As per the approved plans two blocks were to be constructed, Blocks A and B. However, according to the Chief Officer of the Municipal Council, the Builders have deviated from the approved plans and carried out illegal construction of an additional floor on Block A. Show Cause notice dated 31-5-1999 was issued as to why action for demolition of the construction should not be taken. On 15-6-1999 revised plans were submitted on behalf of the Builders. Revised plans were accompanied by development permission dated 28-5-1999 by the Vasco PDA. However, the said revised plans have not yet been approved by the Municipal Council and no occupation certificate has been issued in respect of the said building nor has nobody occupied the same. It appears that as per the approved plans by the Vasco PDA the two flats which are in deviation of the originally approved plans and construction of additional floor has been approved by the said Planning Authority. The Vasco PDA have in their affidavit, stated that development permission for Oscar Apartments as per the application of the owners, was issued on 19-5-1994. The authority further states that the Builders constructed Block A and did not construct Block B and constructed another additional floor on Block A. The Builders have approached the Planning Authority for development permission and submitted fresh plans and in terms of the fresh plans submitted, total built-up area is 971.90 sq.metre and the total FAR consumed is 1.99 and the total coverage is 49.82%; that since all fresh plans were within the permissible limits, the Development Authority approved the said plans and issued development permission on 28-5-1999.
15. Admittedly, therefore, so far as Oscar Apartments is concerned, Koshy Builders have deviated from the originally approved plans and have constructed an additional floor over Block ‘A’ to accommodate two more flats and have not constructed Block ‘B’ as per the original plans. However they have submitted application for revised plans which have been approved by the Vasco PDA. It appears that the revised plans have so far not been approved by the Mormugao Municipal Council and no permission has been granted for construction as per the revised plans by the Mormugao Municipal Council. The case of Koshy Builders is that they have consumed only 1.99 FAR and the coverage of the plot under the revised plans is only 49.82% and that no infringement has been committed, since the two flats which were built in deviation to the original plan as an additional floor in Block ‘A’ and has been approved by the Vasco PDA. As per the affidavit of Vasco PDA, Koshy Builders have not committed any illegality or done any unauthorised construction and the deviation from the original plan has been approved after submission of revised plans; that there is no consumption of FAR beyond the permissible limits and the entire construction therefore is within the permissible limits. Since Vasco PDA have approved the revised plans, it is expected that the Mormugao Municipal Council will approve the same. Moreover, there is no consumption of FAR beyond the available limits. Therefore the complaint so far as Oscar Apartments is concerned, is without merit and does not call for any remedial measures.
16. Coming to the case of Aristocrat Apartments, admittedly, as per the affidavit of Koshy Builders, they have constructed four flats on the floor below the road level for which approval has neither been granted by the Vasco PDA nor by the Municipal Council. Originally the approved plans were for construction of 40 flats. However, without submitting revised plans and without the approval of the Municipal Council or the Vasco PDA, Koshy Builders constructed the said four flats in the stilt portion of the building in complete violation of all Building Rules and Regulations. It is seen that the plans originally submitted were for construction of ground plus three upper floors. But Koshy Builders have constructed the stilt portion below the ground level and four additional flats on top. Construction in the stilt portion was done on the pretext that there is a slope on the southern side and the stilt portion has been surreptitiously utilised for construction of four flats. Apart from the original complaint field by Diogo Antao, the Intervenors i.e. Aristocrat Apartments Co-operative Housing Society Ltd. have come forward, seriously complaining of the unauthorised construction of the four flats in the basement and contending that this construction has caused serious prejudice to the applicant/Society. It is contended that in view of the illegal construction, Vasco PDA is not granting NOC to the society for the purpose of transferring the apartments along with the land as required under the provisions of the Town and Country Planning Act and this has caused serious prejudice to the applicant/Members of the Society. It is further pointed out by the said Member of Aristocrat Apartments Society that Koshy Builders in order to provide air and ventilation to the four illegal flats in the basement, have cut the land in and around the building, causing a big ditch which is endangering the lives and safety of the residents of the society and nearby residents; the illegal construction of the said four flats has also caused water scarcity and overflowing of septic tank on account of extra burden on the infrastructure of the building.
17. From the affidavits of the concerned authorities i.e. the Municipal Council of Mormugao and Vasco PDA, it appears that action has been taken by the Mormugao Municipal Council; show cause notices were issued to Koshy Builders and demolition notices were also sent in respect of the illegal construction. Vasco PDA have in their affidavit, also submitted that Koshy Builders were called upon to submit revised plans in respect of the additional four flats constructed in the basement, failing which action would be initiated under section 52 of the Town and Country Planning Act and since revised plans were not submitted, notice dated 25th June, 1998 was issued to Koshy Builders to demolish and remove the illegal construction within thirty days from receipt of the notice. The matter was also referred to the State Demolition Squad at Panaji by the Planning Development Authority by their letter dated 6-10-1998. Only thereafter Koshy Builders submitted an application for modification of their plans on 25-11-1998. However, after inspecting the building and much discussion, the proposal for modification/revision was rejected on the following grounds, namely that the FAR consumed was more than permissible; that the height of the building was more than 14.20 metres and hence the same would require lift and fire-fighting staircase; that the basement being used for habitable purpose, had inadequate access, light and ventilation. It thus appears that though the authorities concerned were fully aware of the illegal nature of the construction put up by Koshy Builders and had therefore initiated action by issuing show cause and demolition notices, yet the matter was not taken to its logical conclusion, necessitating some public spirited person taking the matter to Court.
18. We are satisfied that the construction of the four flats in the basement of Aristocrat Apartments is not only illegal and unauthorised, but also cause of apprehension and serious danger to the lives, safety and convenience of the residents of Aristocrat Apartments and persons living nearby and finding no justification whatever for the builders having embarked upon such construction in total violation of the building Rules and Regulations and development plan, direct the public authorities concerned to take action as per law against Koshy Builders and the unauthorised constructions put up by them in the basement of Aristocrat Apartments and also direct Koshy Builders to take necessary steps to make the place safe and convenient for the residents of Aristocrat Building and person living in and around the said building and for abatement of nuisance caused on account of the said unauthorised construction.
19. With the above directions, writ petition stands disposed of. Misc. Civil Application No. 153/2000 also stands disposed of.
20. On the application of the Advocate for the respondent No. 2 Koshy Builders, we stay our order for a period of 30 days.