Mr. Agnelo Fernandes vs Goa Coastal Zone Management Authority and Smt. Betty C. Alvares, Ribandar Retreat, Goa

A.P. Lavande, J.—By this petition, the petitioner challenges order dated 25/11/2008 passed by the respondent directing the petitioner to demolish certain constructions carried out by the petitioner in violation of Coastal Zone Regulations (CRZ) notification. The petition has been filed on 23/8/2010 and in view of the office objections which were cleared the petition was ordered to be admitted by the Registry on 24/8/2010. This petition has been filed pursuant to the liberty given by the Division Bench of this Court in terms of order dated 5/7/2010 passed in Writ Petition no. 313 of 2009 filed by the intervenor alleging inaction on the part of the authorities to take action against illegal constructions in violation of the notification issued under CRZ Regulations. The petitioner was the sixth respondent in the said petition in which Rule was issued on 5/7/2010. The Division Bench observed that the sixth respondent (the petitioner herein) had not challenged the order dated 25/11/2008 passed by the Goa Coastal Zone Management Authority (GCZMA), the respondent herein. By way of interim relief the Division Bench had directed the sixth respondent to comply with the order dated 25/11/2008 within a period of six weeks from the date of the order and stated that the said relief is without prejudice to the right of the sixth respondent to challenge the order dated 25/11/2008 in accordance with law. It was further directed that the respondent herein will verify whether compliance has been made with the order dated 25/11/2008 within a period of six weeks from the date of the order and will place the report on record.

Learned counsel appearing for the respondent and the intervenor at the outset submitted that having regard to the delay and laches and the conduct of the petitioner, the petition does not deserve to be entertained in as much as the impugned order was passed on 25/11/2008 and the Division Bench had directed the petitioner herein to comply with the impugned order within a period of six weeks without prejudice to his right to challenge the said order. According to the learned counsel in view of the said order it is evident that the petitioner was bound to demolish the illegal constructions within a period of six weeks of the order dated 5/7/2010, in the event the petitioner chose not to comply with the said direction and obtain interim order from this Court. According to the learned counsel the present petition was not filed within a period of six weeks which period expired on 16/8/2010. As such, the petitioner has committed breach of the order passed by the Division Bench directing the petitioner to comply with the impugned order within a period of six weeks. According to the learned counsel not only does the petition suffer from laches in challenging the order passed in November 2008 by filing the petition in August 2010, but the petitioner has also committed breach of the order dated 5/7/2010 by not demolishing the illegal construction ordered to be demolished by the respondent herein. Learned counsel therefore submitted that delay and laches on the part of the petitioner and also the conduct of the petitioner clearly dis-entitles him from seeking extraordinary remedy from this Court.

Mrs. Agni, learned counsel appearing for the intervenor has placed reliance upon the judgment of the Apex Court in the case of Chairman, U.P. Jal Nigam and Another Vs. Jaswant Singh and Another, .

Mr. Lotlikar, learned Senior Counsel appearing for the petitioner, while conceding that the petition has not been filed within a period of six weeks from the date of order passed by the Division Bench of this Court in Writ Petition no.313 of 2009, submitted that this fact by itself would not come in the way of the petitioner from challenging the impugned order in as much as there are no gross laches on the part of the petitioner in approaching this Court. According to Mr. Lotlikar, the question of delay at no point of time was raised by the respondent. According to learned counsel, the respondent has acted in breach of the principles of natural justice and therefore the petitioner ought not to be non-suited on the ground that he has not filed the petition within a period of six weeks in terms of the order dated 5/7/2010 passed by the Division Bench. Mr. Lotlikar further submitted that serious prejudice would be caused to the petitioner in the event the petition is dismissed on the ground that the petition has not been filed within a period of six weeks from the date of the order passed by the Division Bench.

I have carefully considered the rival submissions and perused the record.

Indisputably, by order dated 5/7/2010 passed in Writ Petition no. 313 of 2009, the Division Bench of this Court issued Rule in the petition filed by the intervenor and by way of interim relief directed the sixth respondent (the petitioner herein) to comply with the order dated 25/11/2008 within a period of six weeks. The said interim relief was without prejudice to the rights of the petitioner herein to challenge the order dated 25/11/2008 in accordance with law. The only inference which can be drawn from the said order is that the petitioner was to demolish the construction ordered to be demolished by the respondent herein within a period of six weeks, unless he chose to file the petition challenging the impugned order within six weeks and obtain an order of stay against the said order. There is no dispute that the petitioner has not filed the petition within a period of six weeks. Thus, the conduct on the part of the petitioner clearly discloses that he has failed to comply with the order dated 25/11/2008 granted by way of interim relief, within the period of six weeks and there is absolutely no reason as to why he has not filed the petition within a period of six weeks. Thus, the conduct of the petitioner clearly dis-entitled him from seeking extraordinary remedy from this Court. While exercising jurisdiction under Articles 226 and/or 227 of the Constitution of India, the conduct of the petitioner is very much relevant. The petition is not liable to be admitted only on the ground that the petitioner has a good case on merits, if the conduct of the petitioner disentitles him from seeking extraordinary remedy from this Court.

Thus, I find merit in the submission of learned counsel for the respondent and the intervenor that the conduct of the petitioner is such that this is not a fit case to entertain the writ petition filed by the petitioner. In so far as delay in filing the petition by the petitioner is concerned, the same has to be considered in light of the facts and circumstance of the case. In the present case the impugned order was passed on 25/11/2008. It was the case of the petitioner herein that he had complied with the impugned order as is disclosed from paragraph 12 of the Affidavit dated 7/11/2009 filed in writ petition no.313 of 2009. Therefore, the conduct of the petitioner and the delay in approaching this Court clearly dis-entitles him from invoking writ jurisdiction of this Court. I do not find any merit in the submission of Mr. Lotlikar that the conduct of the petitioner in approaching this Court after a week from the expiry of the period of six weeks, in terms of the order dated 5/7/2010 passed by this Court is not very much relevant in deciding whether the petition ought to be admitted or not.

In so far as the judgment in the case of U.P. Jal Nigam and another (supra), relied upon by Mrs. Agni is concerned, the same is not applicable in the present case. In the said case the Apex Court has held that when a person is not vigilant and acquiesces with the situation and the acquiescence prejudices or there is a change of position on the part of the party allegedly violating the rights, such person''s writ petition cannot be heard after the delay on the ground that same relief should be granted as was granted to persons similarly situated. In this case, the delay in approaching the writ Court was held fatal. For the reasons aforesaid, I find merit in the objection taken on behalf of the respondent and the intervenor. In view of the conduct of the petitioner and unexplained delay and laches in approaching this Court, I am not inclined to entertain the petition. Hence, the petition is dismissed.