HC sets aside order favouring ParulekarPANAJI: The high court of Bombay at Goa set aside an order granting tourism minister Dilip Parulekar a prime plot measuring 599 s m at Porvorim as he did not pay the price as per law for regularizing the encroachment he made on the land.
Stating that reasonable valuation is to be made, a division bench comprising Justice R S Dalvi and justice F M Reis observed, "As the amount which has been received from Parulekar by comunidade of Serula is not in accordance with the provisions of the Code of Comunidade, the order of administrative tribunal for regularization of the encroachment cannot stand judicial scrutiny."
The court stated that Parulekar and government authorities did not comply with provisions of the comunidade code nor obtained consent from the government for the purpose.
On the point of valuation, the comunidade had argued that it had decided in its interest, by way of a general body resolution, that it would settle the disputes between itself and Parulekar without litigation at a lesser value.
"We may accept the case of the comunidade that some form of settlement may be in order. However, given the fact that the comunidade is a public authority and in the position of trust, such a settlement may only be for a little lesser than the market value of the land. Hence a reasonable valuation is to be made," the bench remarked.
The comunidade had accepted Rs 3,41,320 at the rate of Rs 570 per s m for the land unauthorizedly occupied by Parulekar and Rs 17,071.50 towards arrears of foro for the last 20 years.
Social activist Aires Rodrigues had approached the court and pointed out that there was gross undervaluation of the land. He had stated that as per clause 1 of Article 380 of the Code of Comunidades, regularization was possible only in cases of land valued at less than Rs 320.
The court noted that paying the valuation for grant of comunidade's land upon regularization would effectively confer the land title upon Parulekar. "Unless at least such amends are made, Parulekar being an admitted encroacher, cannot be allowed to remain upon the land of the comunidade once the fact of unauthorized encroachment is pointed out to this court," the high court held.
"Even if he was granted a valid lease initially, it was only for a small portion of the disputed property. He has encroached upon further land. He desired to regularize the encroachment. He must pay the price for it, that is the value of the land. That value would have to be fixed based upon its value at the time of the encroachment. Such a fixation should be made as per the letter/order of the government," the court said.
The court noted that that the letter/order is in consonance with reality, as also reasonableness, calling for 10% increase each year. "Hence, the value of the land at the time of encroachment plus 10% augmentation each year, until the date of payment would be required to be paid. Such payment would legitimately regularize the otherwise unauthorized occupation of Parulekar," the court held.
The Goa government, revenue department, secretariat, had set out the revision of rates of the comunidade plots in a letter dated October 4, 2006 and sent it to the administrators of comunidades. The letter shows that the rates were fixed in 2003, which would be considered as base rates with an annual increase of 10% for fixing the present rates.
The court also directed the authorities to proceed with the process of regularization of the encroached land in the light of the observations made by it in accordance with law.
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Stating that reasonable valuation is to be made, a division bench comprising Justice R S Dalvi and justice F M Reis observed, "As the amount which has been received from Parulekar by comunidade of Serula is not in accordance with the provisions of the Code of Comunidade, the order of administrative tribunal for regularization of the encroachment cannot stand judicial scrutiny."
The court stated that Parulekar and government authorities did not comply with provisions of the comunidade code nor obtained consent from the government for the purpose.
On the point of valuation, the comunidade had argued that it had decided in its interest, by way of a general body resolution, that it would settle the disputes between itself and Parulekar without litigation at a lesser value.
"We may accept the case of the comunidade that some form of settlement may be in order. However, given the fact that the comunidade is a public authority and in the position of trust, such a settlement may only be for a little lesser than the market value of the land. Hence a reasonable valuation is to be made," the bench remarked.
The comunidade had accepted Rs 3,41,320 at the rate of Rs 570 per s m for the land unauthorizedly occupied by Parulekar and Rs 17,071.50 towards arrears of foro for the last 20 years.
Social activist Aires Rodrigues had approached the court and pointed out that there was gross undervaluation of the land. He had stated that as per clause 1 of Article 380 of the Code of Comunidades, regularization was possible only in cases of land valued at less than Rs 320.
The court noted that paying the valuation for grant of comunidade's land upon regularization would effectively confer the land title upon Parulekar. "Unless at least such amends are made, Parulekar being an admitted encroacher, cannot be allowed to remain upon the land of the comunidade once the fact of unauthorized encroachment is pointed out to this court," the high court held.
"Even if he was granted a valid lease initially, it was only for a small portion of the disputed property. He has encroached upon further land. He desired to regularize the encroachment. He must pay the price for it, that is the value of the land. That value would have to be fixed based upon its value at the time of the encroachment. Such a fixation should be made as per the letter/order of the government," the court said.
The court noted that that the letter/order is in consonance with reality, as also reasonableness, calling for 10% increase each year. "Hence, the value of the land at the time of encroachment plus 10% augmentation each year, until the date of payment would be required to be paid. Such payment would legitimately regularize the otherwise unauthorized occupation of Parulekar," the court held.
The Goa government, revenue department, secretariat, had set out the revision of rates of the comunidade plots in a letter dated October 4, 2006 and sent it to the administrators of comunidades. The letter shows that the rates were fixed in 2003, which would be considered as base rates with an annual increase of 10% for fixing the present rates.
The court also directed the authorities to proceed with the process of regularization of the encroached land in the light of the observations made by it in accordance with law.
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