its decision, however, in the present case, there are absolutely
no reasons given. In view of this position, the Member
Secretary was called upon to place on record his explanation
as to why in this matter a deviation was made. Reply dated 24
February, 2015 has been filed by the Chief Town Planner. The
reply seeks to justify the decision on merits and states that the
Board will henceforth pass speaking orders. No explanation is
placed on record as to why there was a deviation. The Town
Planner has not even bothered to say that it is a mistake nor
any apology is tendered. It is not even the stand that it was an
oversight or it was due to pressure of work. The affidavit only
states that point made by the Court is noted and henceforth
Board will give reason.
There is an important angle that must be
emphasized. The usual consequence of such orders is remand
for fresh hearing. While doing so, this Court has to protect the
structure, which in the opinion of the Board, should be
demolished. Therefore, if the Board is of the opinion that the
structure does not deserve to be protected, by passing
unreasoned order, it in fact extends protection to such
structure in view of the usual consequences that follow from
such order. By not giving reason in the cases of unauthorized
construction,the board in fact end up extending protection to
them.
The Board is presumed to be aware of this
consequence. It is for this very reason that an explanation was
sought, but has not been given. The action of the Board is not
only in violation of the principles of natural justice but is
against public interest. The Board not only exercises power
that affect right of the parties, but the Board decides matters
affecting town planning, in which all residents have a interest.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 766 OF 2013
Smt. Sebastiana Cardozo,
V e r s u s
State of Goa
CORAM: N. M. JAMDAR, J.
DATE: 24 FEBRUARY, 2015.
Citation:2016(3) MHLJ653
Rule. Rule made returnable forthwith.
Respondents waive service.
2. Leave to amend the prayer clause to correct the
date of the impugned order granted. Amendment to be carried
out forthwith.
3. The petitioners challenge the order passed by the
respondent no.3-Town and Country Planning Board dated 22
November, 2011 and order passed by the South Goa Planning
Authority dated 17 October 2011, in respect of the proceeding
taken for demolition of structure in occupation of the
petitioners. The Board has dismissed the Appeal of the
Petitioner.
4. It is the case of the petitioners that they are
mundcars of the house situated at Margao-Goa. A Notice came
to be issued to the petitioners by respondent no.2-South Goa
Planning and Development Authority calling upon the
petitioners to demolish the structure as according to the
Authority it was in violation of the planning laws. The
petitioners thereafter filed an appeal as provided under section
52 of the Goa Town and Country Planning Act, to the
respondent no.1-Board. The Board disposed of the appeal by
the impugned order dated 22 November, 2013.
5. The impugned order firstly narrates the
submissions of the appellants, then the contention of the
Planning Authority, and the appeal is dismissed with one line
reasoning.
"After deliberation the Board passed the following
order:
“The TCP Board dismissed the appeal since
construction in the plot does not confirm to prevailing
regulations"
That the construction of the plot does not conform to
prevailing regulation was the ground on which the action was
initiated against the petitioners and in the appeal the appellant
had stated the grounds why this was not so. There is
absolutely no discussion at all as regards the rival contention.
The order passed by the Board proceeds as if the Board is
under no obligation to disclose its mind as to why a particular
decision is arrived at. It is long settled that any quasi judicial
authority must give reasons. Apart from this general
proposition, the Division bench decision of this Court in Writ
Petitions Nos. 267 and 322 of 2005 'Shri Pramod S. Dabolkar
Vs. Senior Town Planner and others” and “Shri Louis
Antonio Fernandes and others Vs. The Senior Town Planner
and others” in specific terms, interpreting the powers of the
Board, has held that reasons must be given by the Board. In
spite of this position, the Board has proceeded to dispose of the
appeal without any reasons.
6. Section 52 of the Act provides the Board as a forum
to any person aggrieved by the proceedings under Section 52
(1). Section 52 (5) of the Act provides that the Board shall give
reasonable opportunity of being heard to the appellant and to
the Planning Authority. The Board can allow or dismiss the
appeal by quashing or varying the notice. Thus, the Board may
either accept the stand of the Planning Authority or the
applicant. It is part of principles of natural justice that a
person against whom an order is passed must know why the
order is passed against him. This basic proposition cannot be
disputed. However, the Board has tried to put the clock back
by passing a completely unreasoned order.
7. Section 4 of the Act constitutes the Board. It
consists of the Ministers-in-charge, Secretaries to Government,
Head of Public Works Department, Head of Forest Department,
Director of Agriculture, Director of Tourism, Director of
Transport, Director of Health Services, Director of Education,
Director of Fisheries, Four members nominated by the Central
Government dealing with various Ministries, two persons with
special knowledge of planing, representative of Chamber of
Commerce, two members of Legislative Assembly. The Chief
Town Planner is the Member Secretary of the Board. The
Board has various powers as enumerated under section 8. The
Chief Town Planner is appointed under Section 3. His
qualifications are prescribed under the Act, whose functions
are provided under the Act. Thus, it is clear from the
composition of the Board that it consists of high ranking
officers and eminent persons. It will have to be presumed that
the members of the Board are aware of the long settled
position of law that while exercising appellate powers, they
must give reasons in support of their decision.
8. Normally the Board does give reasons in support of
its decision, however, in the present case, there are absolutely
no reasons given. In view of this position, the Member
Secretary was called upon to place on record his explanation
as to why in this matter a deviation was made. Reply dated 24
February, 2015 has been filed by the Chief Town Planner. The
reply seeks to justify the decision on merits and states that the
Board will henceforth pass speaking orders. No explanation is
placed on record as to why there was a deviation. The Town
Planner has not even bothered to say that it is a mistake nor
any apology is tendered. It is not even the stand that it was an
oversight or it was due to pressure of work. The affidavit only
states that point made by the Court is noted and henceforth
Board will give reason.
9. There is an important angle that must be
emphasized. The usual consequence of such orders is remand
for fresh hearing. While doing so, this Court has to protect the
structure, which in the opinion of the Board, should be
demolished. Therefore, if the Board is of the opinion that the
structure does not deserve to be protected, by passing
unreasoned order, it in fact extends protection to such
structure in view of the usual consequences that follow from
such order. By not giving reason in the cases of unauthorized
construction,the board in fact end up extending protection to
them.
10. The Board is presumed to be aware of this
consequence. It is for this very reason that an explanation was
sought, but has not been given. The action of the Board is not
only in violation of the principles of natural justice but is
against public interest. The Board not only exercises power
that affect right of the parties, but the Board decides matters
affecting town planning, in which all residents have a interest.
11. Not following well settled positions of law laid
down by the Apex Court and this Court may amount to
disobedience and contempt, but it is not necessary to take the
matter that far. But for lack of any cogent explanation inspite
of opportunities, I am constrained to impose some deterrent to
inculcate a sense of responsibility and discipline in decision
making and to draw the attention to the underlying public
interest. Imposition of costs will serve the purpose.
12. In the result, the petition requires to be allowed and the
matter requires to be remanded back to the Board to pass a
reasoned order. Accordingly, the petition is disposed of by
quashing and setting side the order dated 22 November 2013.
The appeal filed by the petitioner stands restored to file. The
Board will dispose of the appeal within a period of one month
from today. Till the appeal is disposed off, the structure of the
petitioner shall stand protected.
13. The Board shall deposit the cost of Rs.10,000/-
(Rupees Ten thousand only) in the registry of this Court which
shall be furnished to the Goa State Legal Services Authority,
within six weeks from today.
N. M. JAMDAR, J.
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