JUDGMENT
G.F. Couto, J.
1. The petitioner is the owner in possession of a plot of land admeasuring about 9,606 sq. mts. situate at Caranzalem. The said plot of land is situate within the area of Panjim city. Desiring to develop the said land, the petitioner entrusted the matter to M/s. Kamat Real Estates and this firm prepared plans for utilizing the said area for constructing a Nursing Home, Balwadi, residences for doctors, professionals, etc. Shopping Arcade and a Bank, taking into account that the said area fell within “Residential and Institutional Zone”. Thereafter, by application dated 19th November, 1985, the permission of the respondent No. 2 was sought by the petitioner, but by letter dated 22nd January, 1986, the respondent No. 2 returned the application stating the he could not deal with the said application as per the Government instructions to the Chief Town Planner dated 14th November, 1985, not to convert any agricultural land. The petitioner reacted against this letter and drew the attention of the second respondent to the effect that the application was not to the Town Planning Department, but to the second respondent. Later on a, letter dated 13th February, 1986 was addresses to the petitioner informing that the second respondent has refused permission to construct buildings in Chalta Nos. 4 and 5 of P.T. sheet 152 of the City Survey, Panjim at Caranzalem on the ground that the said land is zoned as PR/G (Educational/ Government use) and it is proposed to be acquired by the Government/Authority. Being aggrieved by this decision of the second respondent, petitioner filed an appeal before the first respondent. The said appeal was heard on 25th June, 1986 and on the same date, a letter dated 25th June, 1986 signed by Member Secretary of the first respondent was addressed to the petitioner informing him that the appeal has been dismissed. The petitioner requested the second respondent to be issued a certified copy of the judgement passed in his appeal. By letter dated 8th June, 1986, the certified copy of the letter was issued wherein it is stated that the Board felt that the PDA had rightly refused the permission as the provisions contained in the draft ODP are required to be followed by then and further that it was found that the uses proposed by the applicant do not conform to the uses permitted.
2. It is against the said Order of dismissal that the present writ petition is filed.
3. Mr. Dias, the learned Senior Advocate appearing for the petitioner, began to invite my attention to section 45 of the Town and Country Planning Act, 1974, particularly to its proviso wherein it is laid down that the Board shall dispose of the other appeal within three months from the date of preferring the same and if not so disposed it shall be deemed that the prayer of the appellant is granted. The appeal filed by the petitioner was entered on 1st April, 1986 and it was not disposed within the period of three months and therefore, it was to be deemed as having been allowed. In fact according to the learned Counsel, the communication dated 25th June, 1986 to the effect that the appeal has been dismissed cannot be considered to be a disposal of the appeal since no reasons were given and the reasons given by letter dated 8th August, 1986 were apparently given at a later stage. The apart, the learned Counsel contended that in view of the provisions of sections 42 and 43 of the Act, recourse to sub-section (4) of the section 44 was not permissible, to refuse the permission sought by the petitioner.
4. It was however contended by Mr. Nadkarni , the learned Counsel for the respondent No. 1 that the second submission of the learned Counsel appearing for the petitioner cannot be accepted in view of the judgement of the Single Judge of this Court in Writ Petition No. 140/86 Balkrishna Yellapa Shanke v. Goa, Daman and Diu Town and Country Planning Board & another , delivered on 9th April, 1987. He submitted that in the said case this Court held that the provisions of sub-section (4) of section 44, namely of its Clauses 1, 2 and 3 were necessarily to be borne in mind by the authority while considering an application under section 44. According to the learned Counsel, there is no reason shown by the petitioner for re-consideration of the said judgement and therefore, in the light of the observations made in the said judgement the second submission of Mr. Dias has no force. The learned Counsel further contended that it is not correct to say that no reasons were given on 25th June, 1986 when the appeal was dismissed by the Board. However, the procedure followed by the Board has been always to hear the appeal and after considering the merits of the submissions made to dispose of the matter either allowing or rejecting the appeal and giving reasons. This decision however, was not recorded and minutes were prepared by the Board Secretary on the basis of the discussion and the decision and these minutes were circulated to the members and subsequently placed for the approval of the Board on the next meeting. This procedure was followed in the present case. This being so, strictly speaking, according to Mr. Nadkarni, it cannot be said that no reasons whatsoever had been given by the Board on 25th June, 1986.
5. The learned Counsel produced for my perusal the letter of the Board Secretary dated 18th July, 1986 forwarding the draft of the minutes of the meeting of the Board held on 25th June, 1986 to the members. It can be seen from the said draft namely from its paragraph 4, that the decision which was certified to the petitioner by letter dated 8th August, 1986 is reproducing what is recorded in the said paragraph 4 of the minutes. The being so, it does appear that in fact the Board decided the appeal after considering all the facts in their meeting dated 25th June , 1986 and while deciding the said appeal, gave some reasons. Though this is correct, the fact remains that the minutes were approved and signed only at a later stage and definitely after 18th July, 1986. Nothing was produced before this Court to show that the reasons for the dismissal of the appeal had been recorded in writing and signed on the day the appeal was signed. This being so, it is obvious that the appeal can be said to have been disposed of only on the date the minutes were signed. It is obvious in these circumstances that the period of three months had expired on 1st July, and therefore, the decision of the appeal was beyond the period of three months. Thus, the provision of the proviso to section 45 of the Act comes into operation and the permission is deemed to have been granted to the petitioners. However, it is clear that this permission is subject to the compliance by the petitioner with the provisions of the Development and Building Regulation. In view of the above, it is not necessary for me to deal with the second contention of Mr. Dias.
6. The result, therefore, is that the rule is made absolute in the above terms. There will be no order as to costs in the circumstances of the case.