Wednesday, December 6, 2023

Bombay High Court directs Margao Planning and Development Authority to take serious action based on petitioners’ complaints about illegal activities

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The Bombay High Court at Goa directed the  direct the Mormugao Planning & Development Authority (MPDA), Goa State Pollution Control Board (GSPCB) and Margao Municipal Council (MMC) to take serious action based on the petitioners’ complaints about the illegal activities like landfilling, unauthorised constructions, reclamation of water bodies, etc., in property of Vasco city.

The allegation in the Public Interest Litigation  is that these properties are agricultural tenanted fields which can be used for no purposes other than agriculture. The allegation is that unauthorised landfilling and construction have come up in this area. 

Fawia Menezes Mesquita, Advocate for the Petitioners states that even respondents no.1 (The Southern Central Railway ,Goa) and 2 (Railways) are involved in illegal activities, including dumping construction debris and demolition waste.

The petitioners have pleaded that the above areas are low lying paddy fields. It is also pleaded that the fields are known as khazan/Casana land and are flanked on the southern side by the twin lakes of Maimollem and Dhaktollem collectively referred to as the Maimollem Lake. It is pleaded that these lakes/water bodies are indicated as such in the ODP for Vasco.  

The petitioner’s grievance is that despite their complaints, no effective action was taken by the authorities. Mesquita pointed out that some of the authorities did issue show-cause notices and invited action-taken reports. However, there was no follow-up. She submits that from the material on record, it is apparent that the authorities were only pushing the buck on each other without any serious action. Accordingly, she submitted that necessary directions be issued to the respondents to take emergent steps to ensure that this area is rid of encroachments, unauthorised filling and unauthorised constructions. She submitted that suitable directions must be issued to restore this area to its original position so that the low-lying fields and water bodies are used or retained for the purposes they were meant to be.   

The Division Bench of Justice M.S. Sonak and Justice Bharat P. Deshpande have perused the record, and find that the Deputy Collector, South Goa, in charge of the Flying Squad, based upon the petitioners’ complaints, issued a show cause notice-cum-stop work order dated 22.04.2022.  The show cause notice also records no signboard at the site displaying permission from the Town and Country Planning Department. No permissions or NOCs from the statutory authorities were also produced. The show cause notice, therefore, adds that all this prima facie attracts Section 17(A) of the Town and Country Planning Act, 1974. The show cause notice records that breach of this provision is a cognisable offence.

The show cause notice dated 22.04.2022 directed all concerned to remain present in the office of the Member Secretary, South Goa Planning and Development Authority (SGPDA), either personally or through any authorised pleader with all necessary permissions, approvals, licenses, if any, failing which an FIR was directed to be filed.  

A copy of this notice was marked to the Deputy Collector, Mormugao, Goa, for immediate action to stop the illegal construction/development and report compliance. A copy was also marked to the Member Secretary, SGPDA, Mormugao, for immediate action. The Police Inspector of Vasco Police Station was also directed by the High Court  to serve notices to the concerned parties to ensure no further hill cutting/filling. The Police Inspector was directed to keep a vigil on further illegal activities and report the same to the Deputy Collector for necessary action under Section 188 of the Indian Penal Code.  

Despite the apparently prompt action by , IAS, Deputy Collector South-I and in-charge of Flying Squad, Margao Goa, the authorities concerned did not take serious action on the petitioners’ complaints. A case of inaction is therefore made out , the Court observed. 

The petitioners have placed on record a communication dated 31.05.2022 addressed by the Planning Assistant from the Mormugao Planning & Development Authority (MPDA) to the PI, Vasco Police Station requesting the latter to take some action. However, the MPDA has not taken any serious action in the matter. The communication also requested the PI to register an FIR against unknown persons. The Court  is not sure whether such FIR has indeed been registered. If the FIR is not registered, the PI, Vasco Police Station, must take necessary action at the earliest and, in any case, within a month . 
The petitioners have also placed on record communication dated 22.09.2022 addressed by the Chief Officer, Margao Municipal Council (MMC) to the Town Planner simply forwarding petitioners’ and other complaints to the Town Planner. The Chief Officer of MMC has also forwarded such complaints to the Station Manager of the South Central Railways and perhaps even to the police authorities. “However, the MMC or its Chief Officer have not bothered to take any action on the complaints.”

The petitioners have also placed on record communication dated 23.11.2022 addressed by the Member Secretary, Goa State Pollution Control Board (GSPCB) to the Chief Officer MMC forwarding petitioners’ complaint about illegal dumping of construction and demolition waste in Maimollem Khazan land/ agricultural tenanted/low lying paddy fields. “However, the GSPCB has not bothered to inspect the site or take serious action on the complaint.”

Therefore, from the material placed on record , the Court noted  that the petitioners’ complaints are unattended even though the Flying Squad on inspection found prima facie merit in them. The MMC, the MPDA and the GSPCB have only apprised each other of the complaints but refrained from taking any serious action. A case of inaction and passing of the buck is therefore made out.  

The Railways have denied any illegal activity on their part. Agha submitted that some parties had established unauthorised roads in the area. He pointed out that several illegal constructions have also come up in this area for which the Railways are not responsible. He pointed out that some commercial activities are also undertaken in this area, which, according to him, in all probabilities, would be unauthorised. Iftikhar Agha with Ms V. Fernandes, Advocates for Respondent No.2 , made these submissions to point out that the petitioners must not target only the Railways and ignore such patent illegal and unauthorised activities by all other parties, in case the   petitioners were genuinely interested in protecting the low lying paddy fields, khazan, tenanted lands and water bodies.

Agha, on instructions, submits that the Railways have laid a pile foundation and built a retaining wall in the Railway property itself. Mr Agha, on instructions, categorically states that Railways have not dumped any construction material or debris in the area, which the petitioners complain of. Further, on instructions, he states that the Railways will not dump any construction waste, debris, or other waste in this area. These statements are accepted. The railways are bound to comply with such statements made on their behalf.  

“Having regard to the material on record, we direct the MPDA, GSPCB and MMC to take serious action based on the petitioners’ complaints and complete such action within four months from today. If the authorities have to hear the parties responsible for such activities, they may do so within this period. Besides, petitioners should also be heard by these authorities. The final decisions that the authorities take must be communicated to the parties, including the petitioners herein. All parties must be given a fair opportunity, but if illegalities are established, strict action must be promptly taken”, the Court directed.

The Deputy Collector in charge of the Flying Squad should also keep a constant vigil through the Flying Squad in this area to ensure that there is no unauthorised landfilling, illegal constructions or dumping of construction or other waste/debris , the Court further directed.

“The MMC, MPDA. GSPCB and the State must ensure the restoration of this area if it is found that the same is affected by illegal landfilling, illegal conversion, illegal constructions, etc. Such restoration must be ordered and executed expeditiously. “
 At this stage, the High High Court  does not wish to go into Railway’s allegations about the selective targeting by the petitioners. However, if the petitioners are genuinely interested in protecting such areas, then the petitioners cannot adopt a selective approach , held by the High Court while disposing of the PIL.

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