Saturday 31 May 2014

When High Court Judgment fails to deliver justice: what happened in Benaulim

Benaulim is known as the land of Lord Parashuram with the legendary arrow landing at a site close to the Arabian sea, and known as the Komla Tollem (The Lotus Lake). Parashuram, according to Puranas has been military leader of the Brahmin in quest of the conquest of Indian territories. He is known for fighting bloody wars against Marathas (Also known as Chardes after Shenoy Gembab's book Ain Vellar of 1945) weeping them off the face of the planet earth 21 times. He is also known for killing of his mother Ranuka because she was not a Brahmin but a mulnivasi of India. This narration has been publicly cited often by Hon. Waman Meshram, President of Bharat Mukti Morcha. It is unfortunate Bamani myth associated with Benaulim to serve their agenda of keeping real history wrapped up under their Parashuram myth. This is also the reason why Parashuram' statue is prominently displayed at Menezes Braganza Hall, Panjim just like Chanakya's statue at Kala Academy, Panjim. They are both icons of Bamon Raj.

This judgment of the Goa bench of Bombay High Court lacks element of justice and totally bias in favour of the real estate owners and totally against agitating people of Benaulim and entire Goa. It sets dangerous precedent of using High Court to bulldoze voices of protests against nastier developments. This judgment is another arrow of Parashuram working tirelessly in quest of establishing Bamon Raj.  Here is a critical review of the context and then text of the judgement.

One fine April morning, some unusual digging activity commenced in the near vicinity of this lake and a little over 500 metres away from the high tide line, at Survey  No. 378/1-B.  This caught the attention of the villagers from Soriant Ward of Benaulim.  

A complaint was filed in April 2008 with the local Panchayat stating that some illegal construction activity is going on at the site without displaying the mandatory Licensing details.  Inquiries revealed that a mega housing project was coming up at the site.  Scrutiny of the Construction License revealed that the construction plan besides other irregularities showed an access road of 6 metres.  Soon a show cause notice and Stop work order was issued by the Panchayat after a huge agitation by the Villagers against similar mega housing projects.

Stung by this action of the Panchayat, this builder from Mumbai filed a number of false police cases against the villagers.  He unsuccessfully sought an injunction through the civil courts and when he failed in his ulterior designs, he dragged the villagers to the High Court too.  The villagers though continuously harassed, remained undaunted.
After laying low for about three years, he approached the Panchayat to renew his License which by then had expired.  The Panchayat refused.  The builder appealed against the panchayat Decision with the quasi-judicial authority in the Directorate of Panchayats which upheld his appeal and directed the Panchayat to issue the licence.  

The Panchayat was dragged to the High Court of Bombay at Goa.  The case was halfheartedly defended by the Panchayat resulting in directions being issued to the Panchayat to reconsider the builder’s application for renewal.  When the Panchayat was about to issue the License, the villagers approached the Chief Minister of Goa who was also the Minster for Town and Country Planning Department (TCP) and urged him to direct the TCP to conduct a site inspection.  The site inspection revealed that the approach road was less than 3.5 metres and that the Technical clearance given in 2007-08 was illegal.  The TCP then informed the Panchayat not to renew the licence and to
 keep the same in abeyance till the approach road was put in place.  The Panchayat could have rejected the application for renewal and also cancelled its earlier Licence of 2007-08 since it was obtained under false claims.  However, TCP-Builder-Panchayat nexus was revealed when the Panchayat in December 2012, meekly kept the renewal in abeyance despite the resolution of the Gram Sabha to reject the construction Licence in totality.

The Builder moved the High Court of Bombay at Goa through Writ Petition No. 382/2013 naming The Village Panchayat of Cana-Benaulim as respondents and The TCP Department, Margao as second respondents. During the course of the hearing, the Courts in its Order dated 3rd April, 2014 directed the  Executive Engineer (Roads) PWD, Margao to depute a competent person to visit the site in question and submit a Report disclosing as to whether a six-metre wide road along with a carriageway is available at the site which would be accessible to the proposed project of the Petitioners herein; and also further directed that the Report should also include the width of the existing road and the width as per the Acquisition Plan.  Accordingly a site inspection was conducted on 5th April, 2014.  A report was submitted to the Court.  The report concluded that the site is approximately 315 metres away from the junction of the road leading to Benaulim Beach.  

The report also mentioned that land acquisition has been done upto property bearing survey No. 378/1 of Benaulim village in 1995.  The Builder’s property is in Survey No. 378/1-B.  Between this two points, there is a stretch of a narrow private road of 93 metres and which has not been acquired by the government.  The width of this road is 3.3 metres at its broadest point and 2.7 metres at its narrowest point states the report.  This road is abutted by compound walls of the owners of the respective houses alongside the road.

Subsequent to placing of this report/affidavit, the TCP through its Senior Town Planner filed an affidavit stating that their letter dated 25.05.2012 (directing that the NOC dated 28.12.2006 be kept in abeyance) could be withdrawn subject to the prior compliance of the following conditions, ie. the builder (the Petitioner in this case) shall develop the carriage width to 4 metres at their own (builder’s) cost upto the portion for which the land was acquired by the Government.  The affidavit further states that the stretch of road which is a private road shall also be developed by the Petitioner at their cost to 4 meters carriage width.

The Builders subsequently filed an Affidavit cum Undertaking stating that they will deposit the amount determined by the PWD to extend the width of the existing tar road to a minimum width of 4 metres . As usual, the case was poorly defended by the Counsel of the Panchayat.

The High Court of Bombay at Goa vide its oral judgment dated 07/05/2014 quashed the decision of the Panchayat not to renew the license (letter dated 22.12.2012) and directed the Panchayat to consider the renewal application dated 08.02.2011 afresh within four weeks after TCP passes the order as stated in their affidavit.

What makes the villagers wonder is how the High Court could appreciate the statement of the TCP to develop a stretch of road of 93 metres length which is in private property and which does not belong to the Builder in question.  The villagers say that the sudden U-turn of the TCP is understandable considering the fact that it is controlled by vested interests and politicians.  They say that the same High Court had quashed attempts to issue Construction Licences in the past where the access road was not in place.  They wonder what went wrong in this case.

The TCP which usually takes months to grant technical approval to simple applications for individual houses was prompt in issuing revised technical clearance within days of the high court order.  It is for the general public to summarize the case. The manipulation has taken place at the highest level.

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