Judgment:
Oral Judgment:
Heard Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioner, Ms. Linhares, learned Addl. Government Advocate appearing for the Respondent nos. 1 and 2 and Shri Bhobe, learned Counsel appearing for the Respondent no.3.
2. The above Petition seeks for a writ of Certiorari or any other writ order or direction quashing the impugned Judgment dated 15.04.2004 on the file of the Director of Panchayat Petition no. 174/A/2003.
3. The brief facts of the case are that the Petitioner has a Mundkarial dwelling house bearing house no. 63 in survey no. 13/5 and 13/6 at Vaddy Merces, Goa, bearing House no. 63 which dwelling house has been purchased by the Petitioner pursuant to the proceedings before the learned Mamlatdar under the Mundcar Act. A purchase Sanad was issued in favour of the Petitioner dated 02.08.2001, whereby an area of 300 square metres located in both the survey numbers were purchased by the Petitioner. It is not in dispute that the subject matter of the impugned construction in the present proceedings is in the property surveyed under no. 13/5 and that the area of the dwelling house purchased by the Petitioner pursuant to the said Order passed by the learned Mamlatdar admeasuring an area of 174 square metres from the said property surveyed under no. 13/5 of the said Village. The Respondent no. 4, who is the owner of the remaining portion of the said property, sought permission from the Village Panchayat, Respondent no. 3, for putting up a construction in the said remaining portion of the property. In accordance with the Regulations as in force then, such application was sent for necessary approval before the Town Planning Authority. Accordingly, permission came to be issued in favour of the Respondent no. 4 by the Village Panchayat, Respondent no. 3 to put up a construction in the remaining portion of the property. It is not in dispute that the FAR available at the site at the relevant time was 80 percent and further that the whole property surveyed under no. 13/5 admeasures an area 800 square metres out of which an area of 174 square metres has been purchased by the Petitioner herein. Hence, the available area for construction, if any, for the Respondent no. 4 would admeasure an area of 526 square metres.
4. The Petitioner being aggrieved by the said licence issued in favour of the Respondent no.4, preferred an Appeal before the Directorate of Panchayat, challenging the said permission granted to the Petitioner. Essentially the contention of the Petitioner was that whilst putting up the said construction and considering the FAR available to the remaining portion of the property, the Respondent no. 4 committed a fraud as the area purchased by the Petitioner was also included for the purpose of calculating the FAR. Petitioner's further grievance was that if such area is included for calculating the FAR, an irreparable damage would incur to the Petitioner as far as the Mundkarial area purchased by the Petitioner is concerned. The Respondents objected to the said Petition and pointed out that the permission which has been granted in favour of Respondent no. 4 was in accordance with law. The Directorate of Village Panchayat by an Order dated 15.04.2004, dismissed the Appeal preferred by the Petitioner. Whilst disposing of the said Appeal, the Director came to the conclusion that the construction licence issued in favour of the Respondent no. 4 did not in any way impide or encroach into the area purchased by the Petitioner in respect of the said area of 174 square metres. Being aggrieved by the said Judgment passed by the Directorate of Panchayat, the Petitioner preferred the present Writ Petition.
5. Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioner, has assailed the impugned Order essentially on the ground that by the disputed construction, the Respondent no. 4 is encroaching into the rights of Petitioner in portion of the Mundkarial area purchased by the Petitioner. Learned Counsel further pointed out that there was some overwriting in the records before the Town Planning Authority which itself suggests that some foul play is being played to defeat the rights of the Petitioner so far as the mundkarial area is concerned. Learned Counsel has taken me through the affidavit of the Town Planner filed in the above proceedings and pointed that the said facts have been admitted by the deponent and, as such, granting permission on such overwriting, cannot be sustained. Learned Counsel has further pointed out that by the proposed construction, the rights of the Petitioner with regard to the area purchased by the Petitioner would be affected and as such the construction licence issued is illegal and cannot be sustained and consequently the impugned Order deserves to be quashed and set aside.
6. On the other hand, Shri A. D. Bhobe, learned Counsel appearing for the Respondent no. 3, has supported the impugned Order. The learned Counsel pointed out that in the reply filed by the Sarpanch of the Respondent no.3, there is a categorical statement made therein that by the proposed construction being put up by Respondent no.4, the mundkarial rights of the Petitioner would not be affected and, as such, the right would be protected while putting up such construction. Learned Counsel has taken me through the impugned Order of the Directorate of Panchayat and pointed out that there is a specific finding to the effect that the Mundkarial area purchased by the Petitioner would not be affected in case the proposed construction is allowed to be put up. Learned Counsel further pointed out that these findings of fact cannot be interfered with under Article 227 of the Constitution of India and, consequently, the Petition deserves to be rejected.
7. Ms. Susan Linhares, learned Addl. Government Advocate appearing for the Respondent nos. 1 and 2, has supported the impugned Judgment. The learned Addl. Government Advocate, pointed out that in the affidavit of the said Town Planner at para 5 it is categorically stated that the construction being put up by the Respondent no. 4 was not in any way affecting the mundkarial area of the Petitioner.
8. I have carefully considered the contentions of the learned Counsel appearing for the respective parties. I have gone through the impugned Order passed by the learned Directorate of Panchayat. The Directorate of Panchayat whilst dismissing the Appeal filed by the Petitioner, has come to the conclusion that the Mundkarial area purchased by the Petitioner would not be affected in case the proposed construction is allowed to be put up in the remaining portion of the property. Considering the undisputed facts of the case that the total area admeasures 800 square metres of the property surveyed under no. 13/5 and the mundcarial area admeasures 174 square metres, the area available to the Respondent no. 4 for any construction would be restricted to an area of 526 square. Considering the said area of 526 square metres and as the FAR available at the relevant time was 80 percent, the total built up area otherwise available to the Petitioner would work out to more or less 496 square metres. On perusal of the plan of the proposed construction by the Respondent no.4 and on going through the area statement, the total floor area shown in the proposed construction works out to 478.24. As such, it cannot be said that Respondent no. 4 whilst putting up such construction has exceeded its FAR or included the said mundkarial area of the Petitioner. Be that as it may and taking into consideration the finding of the Directorate of Panchayat to the effect that the mundkarial area of the Petitioner will not be affected in case the proposed construction is put up, I find that such finding of fact cannot be re-examined by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. But, however, Shri Bhobe, learned Counsel appearing for the Respondent no. 3, has stated that Respondent no. 3 will abide with the statement made by the Sarpanch of the Respondent no. 3 in the affidavit at para 2, wherein he has categorically stated that the mundkarial area purchased by the Petitioner would not be affected nor his traditional access at the site.
9. Accepting the said statement of the Sarpanch, I find that the apprehension of the Petitioner that his rights to the mundkarial area would be affected, cannot be accepted.
10. In view of the above, I find that there is no reason to interfere in the impugned Order passed by the Directorate of Panchayat. Hence, the Petition stands dismissed and Rule stands discharged.