Mr. Antonio F. do Rosario vs The State of Goa

The petitioner has filed this petition under Article 226 of the other writ, order or direction of that nature restraining respondent Nos.2, 4 and 7 from permitting construction of a compound wall in the Green zone in front of the bungalow of the petitioner. The other writ sought is a writ of mandamus directing respondent Nos.2, 4, 5 and 7 to remove all obstructions from the 3.20 meters wide access road to the plot X of the petitioner as per the approved plan at Annexure I. There is a direction sought to respondent Nos.1, 2 and 4 to order demolition of the compound wall, the alleged illegal bungalow and to respondent No.3 to take appropriate action in respect of the complaint against the police officials and respondent No.5 in view of their alleged illegal actions. The petitioner has stated in the petition that he is a senior citizen, 70 years old, working abroad for more than 40 years, and after that he has retired and has returned to Goa. He is the owner of a property at Dona Paula under survey No.250/4 plot X wherein he has a bungalow. This bungalow is under renovation. It is stated that the first respondent is the State of Goa and at the behest of respondent No.5, the first, second and the third respondents so also respondent No.4 have not taken any note of the grievances raised by the petitioner pertaining to harassment caused by respondent No.5 and by respondent Nos.6 and 7.

It is the case of the petitioner that respondent No.5 is a Cabinet Minister in the Government of Goa and he has a plot bearing survey No.250/4 entitled Y touching the plot X belonging to the petitioner. It is stated that respondent No.5 bought this plot from the erstwhile owner along with a bungalow. Thereafter, he demolished the whole bungalow and built a new two storey structure without any approval from the Planning Authorities. The bungalow is illegal having no occupancy certificate and therefore as a Minister he is misusing his authority. The sixth respondent is arrayed as a party because it is a Co-operative Housing Society and the case of the petitioner is that the access road to respondent No.5''s bungalow and the property of the petitioner is through the property of respondent No.6. The access road is 8 meters in width which further touches from the eastern side, the plot Y of respondent No.5 and ends at the plot X of the petitioner. This access has been blocked by respondent No.5, and, therefore the petitioner is deprived of a motor able access to his plot and bungalow. Respondent No.7 is a private limited company and it is joined as a party because the wife of respondent No.5 is a Director thereof. It is stated that respondent No.7 has executed a fraudulent Deed of Sale in respect of a portion of the land in front of the bungalow on the northern side by undervaluing the property only to block the available easementary access and thereby forcing the petitioner to sell his bungalow to respondent No.5. The petitioner is, therefore, making such allegations and is further stating that instead of taking any action against the alleged illegal acts of the private respondents, the petitioner was served with a show cause notice dated 30-11-2009 by respondent No.2 stating that his bungalow was unauthorized. A reply was given to this notice on 7-12-2009. Thereafter, another show cause notice was issued on 22-7-2010 about the unauthorized construction of a staircase by the petitioner. It is stated that the survey No.249/1-A in front of the petitioner''s bungalow is a Green zone as per the plan at Annexure II which is an approved plan. The outline plan of Taleigao village is relied upon and the petitioner therefore sought certain information about a bungalow on survey No.249/1 but such information was not forthcoming and yet the petitioner replied to the second show cause notice on 30-7-2010 by highlighting the illegal acts of respondent No.5. In paragraph Nos.35 to 37 of this petition, this is what is stated:-

The Petitioner also informed the Respondent No.2 that the Petitioner came to know for the first time after inspecting the file that the said Joe Mathias had executed a sale deed dated 05/07/2010 in respect of the same survey No.249/1-A in respect of the strip of land in front of the house of the Petitioner abutting the public road Dona Paula - Bambolim which is a green zone, (which land falls in front of the staircase of the Petitioner''s, marked L in photograph IV(c)).

The Petitioner states this is the same strip of land green zone in front of the house of the Petitioner which sale deed appears to have been executed to block the Petitioner on all the sides so that the Petitioner is not able to enter his bungalow, the said deed of sale dated 05/07/2010 has been executed by Joe Mathias with one M/s Meridian Estate Private Limited whose director is the wife of the Respondent No.5.

The Petitioner tried to inquire about the details of the person who executed the deed of sale, inquiries revealed no person by name Ms Clemex Torres who executed the deed of sale on behalf of Ms Meridian Estates Private Limited exist in the colony at the address indicated in the Deed of Sale dated 05/07/2010, it clearly establishes that the Respondent No.5 in collusion with the government authorities has been working overtime to deprive the Petitioner of his liberty and life and misusing his position as a minister in the cabinet to harass the Petitioner in a most inhuman way only because the Petitioner refused to sell his plot and bungalow to the Respondent No.5.

The Petitioner also brought to the notice of the Respondent No.2 that, the Petitioner had entered into an agreement dated 18/07/2009 with the erstwhile owners and had paid the full price for the said strip of land of the green zone, infact the Petitioner apprehended further harassment and as such the said agreement was entered to prevent the Respondent from stopping the Petitioner to go to his plot X and bungalow by the Respondent No.5.

It is such a petition with the aforesaid prayers which has been placed before us, and after perusing the said petition and the annexures thereto so also the affidavit that has been filed not just by the private respondents but the Secretary of respondent No.6/Society, we inquired from the petitioner as to how the dispute with regard to the petitioner''s right to his property and to have access thereto could be adjudicated and gone into in writ jurisdiction, the petitioner stated that it is the statutory authority which has failed to discharge its obligations under law and because he is pitted against a powerful person like respondent No.5, he was not in a position to obtain any relief from the said authorities. It is this compulsion which made him approach this Court.

Suffice it for the present to refer to the affidavit which has been filed by the second respondent who is the Member Secretary of the North Goa Planning Development Authority. In that affidavit after referring to all the prayers in the petition what the second respondent has stated is that the petition raises disputed questions of facts. If the petitioner has complained that respondent No.5 has blocked his access to the plot on the eastern side touching the Sagar road and his easementary right, that dispute cannot be resolved in the light of the fact that the seventh respondent made an application dated 26-7-2010 to respondent No.2 for development permission for the proposed construction of a compound wall. Along with the said application, respondent No.7 submitted a copy of the sale deed dated 5-7-2010 executed by respondent No.7 with M/s. Mathias Construction and two others whereunder respondent No.7 purchased a plot of land admeasuring 300 meters and owns 83160 sq. meters surveyed under No.249/1-A of village Taleigao. That is how a show cause notice was issued to the petitioner by the second respondent for carrying out unauthorized construction and it invoked u/s 44 of the Town & Country Planning Department. When a reply was received to the same and it was stated that the petitioner relies upon an agreement/MOU executed by him and Smt. Clothildes Fernandes that the second respondent has stated that in preference to this document what respondent No.7 had produced along with his application for development permission is a sale deed. Therefore, the sale deed was held to be a document of title whereas the petitioner had only produced a MOU. It is considering these documents that the permission u/s 44 of the Goa Town & Country Planning Act, 1974 for construction of a compound wall was granted and it was clarified that the property falls under the recreational zone and nothing else than the compound wall could be constructed.

The private respondents have filed affidavits disputing the petitioner''s title and raising several pleas to support their case that the approvals in their favour are based on documents and deeds which would prevail over the alleged right to the petitioner flowing from the MOU or some related document.

Having heard the learned Counsel appearing for the petitioner at some length, what we find is that the petition involves disputed questions of facts. It is well settled that writ adjudication is not available for adjudication of disputes in relation to title of immovable properties. This is a matter which is squarely raised in this petition. The petitioner questions the sale deed in favour of respondent No.5 by terming it as fraudulent and accuses him of pressurising him to sell his property to respondent No.5. These are purely private civil disputes with which even the authorities are not concerned. Their view is not an adjudication of title. It is only when the petitioner satisfies the competent Civil Court that he has a right in the property and that his right is also to access thereto from the property adjoining to his survey number, that any relief can be granted in his favour. That such a relief would require this Court to go into disputed questions of facts and it is not possible to resolve the issue of title only on affidavits. This is a clear case where oral and documentary evidence will have to be led by the parties. The apprehension of the petitioner''s Counsel that such an issue cannot be gone into by the competent Civil Court because approvals and permissions from the Planning Authorities are also under challenge is not well founded. The authorities will have to abide by the adjudication, with regard to title to immovable properties, by a competent Civil Court. Their approvals and permissions are always subject to the right of parties to approach a competent Civil Court and they cannot deny the parties the opportunity to have an adjudication on their title by a competent Civil Court. Merely because a suit will be now filed does not necessarily mean that the issue of Civil Court''s jurisdiction will arise as incidental pleas may be raised with regard to the approvals and permissions of statutory authorities. It is for the Civil Court to decide as to whether any act or order of the authority is challenged in the garb of raising a dispute on title or whether there is a clear dispute of title to immovable properties. Therefore, there cannot be any general rule that in all such cases the Civil Court will have no jurisdiction. We hope that having regard to the pleas raised by respondent No.2 and when the private respondents'' concede that the only remedy the petitioner has is to approach a competent Civil Court and file a suit and claim orders and directions therein, that the Civil Court will entertain and try the petitioner''s suit. The above being the nature of the pleas, we have no doubt in our mind that merely because a suit is filed by the petitioner in which he raises all pleas including those set out in this petition that the Civil Court will refuse to adjudicate them straightaway. In such circumstances and being satisfied that it is not possible to resolve the disputes as raised in the petition, in our limited jurisdiction, we dispose of this writ petition with liberty to the petitioner to approach a competent Civil Court and seek such mandatory orders and decrees as are permissible in law.

All contentions raised in this petition by all the parties are kept open. It is merely to point out that we cannot go into the disputed questions of facts that the above narration was necessary. It is not for any purpose except to note the rival contentions. In these circumstances and to enable the petitioner to approach a competent Civil Court we direct that the ad-interim Order passed by this Court on 1-12-2010 will continue for a period of six weeks from today but without prejudice to the rights and contentions of all the parties.

We record the statements of Shri A. N. S. Nadkarni, learned Senior Counsel appearing on behalf of respondent Nos.2 and 4 and Shri M. S. Sonak, learned Counsel appearing on behalf of respondent No.7 that they will not raise the issue of jurisdiction of the Civil Court. Needless to state that the Civil Court will decide the suit or any interim application therein without being influenced by the ad-interim Order nor grant any continuation of the ad-interim Order, merely because of the orders of this Court. All contentions raised on both sides even in respect of the interlocutory relief are kept open. Petition disposed off in the above terms. No costs.