The Petitioner cannot transfer the land or
use the same in any other manner except by keeping it
as an open space. The aforesaid position flows from the
decision of this Court in Pt. Chet Ram Vashist (supra)
wherein such a conclusion had been reached by this
Court in a largely similar set of facts.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 6383
of 2012
( Arising out of SLP (Civil)No. 29081 of 2011)
M/s. Real Estate Agencies
Versus
Govt. of Goa & Ors.
Dated;10th September, 2012.
RANJAN GOGOI, J.
Leave granted.
2.
This appeal has been filed to challenge the order
dated 18th August, 2011 passed by the High Court of
Bombay (Panaji Bench) in Writ Petition No.98/11 by
which the reliefs sought in the writ petition have been
refused and the writ petitioner has been left with the
option of approaching the civil court for the redressal of
his grievances.
3. The facts in brief may be noted at the very outset:
(i) The petitioner herein (writ petitioner before the
High Court) is a registered partnership firm which had
developed a residential colony in Miramar, Goa, known
as La Campala residential colony. It is the case of the
petitioner that after completion of the developmental
work the residual land of the colony, including all open
plots that were meant to be kept open as “vacant space”,
were transferred in favour of the petitioner under a
registered deed dated 16th November, 1977. Such open
spaces, according to the petitioner, included a piece of
land measuring about 19250 sq.mtrs. bearing Chalta
No.18 of PT Sheet No. 120, Miramar, Panaji, Goa
(hereinafter referred to as ‘the land in question’). The
petitioner claims that the right, title and interest in the
said open land undisputedly vested in the petitioner and
the petitioner has exclusive right to develop the said
open land which is to the knowledge of all concerned
including the respondents in the present appeal.
(ii)
In the writ petition filed, it was further claimed that
sometime in the year 1981 the petitioner wanted to raise
construction
in an
area
of
about
7,000
sq.mtrs.
(consisting of 14 plots of 500 sq.mtrs. each) out of the
aforesaid open space of 19250 sq.mtrs. According to the
petitioner, such construction over the 7,000 sq.mtrs. of
land would still have kept more than 12,000 sq.mtrs. as
open space which area would have been within the
prescriptions contained in the existing Municipal Rules
and Regulations. However some of the purchasers of the
plots who had constructed their buildings thereon and
had formed a co-operative society i.e. Model Cooperative
Housing Society, approached the Bombay High Court by
way of a civil suit bearing No.1/B of 1981 claiming an
easementary right in respect of the entire vacant/open
space of 19250 sq.mtrs. In the aforesaid suit, the Co-
operative Society, as the plaintiff, contended that in the
brochures published at the time of development of the
housing colony it was represented that 19250 sq.mtrs. of
open space will be available in order to ensure plenty of
light and ventilation besides serving as a recreational
ground for the children of the members of the Society. In
these circumstances a decree of injunction was sought
against the defendants in Suit No. 1/B of 1981
particularly the defendant No.9 i.e. the petitioner herein
from raising any construction on the land in question.
By judgment and order dated 29th April, 1983 the said
suit was decreed. L.P.A. No. 26/83 filed by the present
petitioner against the said judgment and order dated
29th April, 1983 was dismissed and the decree passed by
the Learned Single Judge was affirmed. According to the
petitioner, in the course of the aforesaid proceedings, no
issue with regard to the title of the petitioner to the land
in question was raised and it was accepted by all the
contesting parties that the petitioner was the owner of
the said land measuring 19250 sq.mtrs. In fact, the only
issue in the suit was with regard to the right of the
petitioner to raise constructions on the said land or on
any part thereof.
(iii)
It was the further case of the petitioner in the writ
petition that an area of about 625 sq. mtrs. out of the
open
space
in
question
was
acquired
under
the
provisions of the Land Acquisition Act, 1894 sometime in
the year 1990 and in the said acquisition proceeding, the
petitioner was treated as the absolute owner of the land.
In fact, according to the petitioner, the compensation
payable under the Award was paid to the petitioner who
had also filed a Reference Application under Section 18
of the Act and had further carried the matter in an
appeal to the High Court of Bombay.
4.
According to the petitioner the aforesaid facts show
and establish the undisputed title of the petitioner to the
land in question. Certain activities were, however,
undertaken on the said land on 2nd January, 2011 and
the inquiries made on behalf of the petitioner indicated
that alongwith a project of beautification of the adjoining
Miramar lake a project to develop the open land in
question was proposed to be undertaken. Specifically, a
jogging track, walk ways, recreational centres etc. were
proposed. According to the petitioner, further inquiries
revealed that such developmental work on the land was
proposed to be undertaken at the instance of the
respondent No. 3 who is the local Municipal Councilor
and, in fact, a Government Order dated 30th June, 2010
had been passed in the matter by the Principal Chief
Engineer, Public Works Department, Government of
Goa. The petitioner had also averred in the writ petition
filed, that the very first stipulation in the order dated
30th June, 2010 required that tenders in respect of the
developmental work on the land shall not be issued
unless the land itself is acquired. However, without
initiating any proceeding to acquire the land, a tender
was floated sometime in September, 2010 and the
respondent No. 4 was awarded the Work Order sometime
in
December,
2010
requiring
completion
of
the
developmental works on the land within 180 days. It is
pursuant thereto that the works on the land were
undertaken w.e.f. 2nd January, 2011. As the aforesaid
actions of the respondents were not only in violation of
the Government Order dated 30th June, 2010 but also
had
the effect of depriving
the
petitioner
of the
ownership in the property in question, the petitioner
filed the writ petition in question seeking interference of
the High Court in the proposed developmental work
which
according
to
the
petitioner
had
already
commenced.
5.
The respondents in the writ petition, including the
Government of Goa and the Corporation of the city of
Panaji apart from the Model Co-operative Housing
Society,
filed
separate
counter
affidavits/written
statements in the case. According to the State the open
space in question was required to be kept free from any
kind of construction under the planning laws in force
and that the plot owners in the residential colony have
an easementary right on and over the open space which
had been so declared by the High Court of Bombay in
Civil
Suit
No.1/B/1981
and
L.P.A.
No.26/1983.
Furthermore in terms of the judgments of the High Court
in the aforesaid cases the petitioner was obliged to keep
the open space so available and vacant at all times. In
the affidavit filed the State had also contended that at no
point of time the petitioner was interested in developing
the open space and the same had become a dumping
ground of garbage. In such a situation the Local
Corporator of the Panaji Municipal Corporation was
requested by the residents to intervene in the matter and
develop the land into a recreational area. Initially the
work was entrusted to the Goa State Infrastructure
Development Corporation. Thereafter, the Goa State
Urban Development Agency was entrusted with the
responsibility. However, as both the aforesaid entities
faced the problem of shortage of funds it was decided
that the work will be carried out by the PWD, Goa. In the
affidavit filed it was further stated that the open space
was to be developed into (a) Children Playing area, (b)
Joggers Track, (c) Water Harvesting Pond, (d) Multi-
purpose court for cricket/football and (e) a Tennis court
and an Amphitheatre. Such development which was to
be to the benefit of all the residents, particularly the
children and the elders, was estimated to cost around
Rs.2.92 crores. It was specifically stated in the affidavit
of the State, that the work had already commenced and
almost 14% thereof had been completed.
In para 14 of the affidavit it was stated that in
terms of the decision of this Court in Chet Ram Vashist
v. Municipal Corporation of Delhi1, the petitioner has
ceased to be the legal owner of the land and its position
was that of a trustee holding the land for the benefit of
the members of the Housing Society and the public at
1
(1995) 1 SCC 47
large. The petitioner had no right to use the land for any
developmental work or to transfer or sell the same; it
was merely a trustee of the land holding the same for a
specific purpose i.e. beneficial utilization as an open
space by the community at large. In a situation where
the petitioner had done nothing to develop the open
space for the public good, the Government had decided
to step in and carry out the project for the benefit of the
residents.
6.
In the affidavit filed by the respondent No.2 –
Commissioner of the Municipal Corporation, Panaji, a
claim that the open space had vested in the Corporation
had been raised whereas in the affidavit filed on behalf of
respondent No. 5 i.e. Model Cooperative Housing Society,
the details of the judgment in Civil Suit No. 1/B of 1981
had been mentioned under which the land in question is
required to be maintained as an open space so to enable
the residents to have free access to light and air apart
from recreational facilities. In the affidavit filed by the
respondent No. 5, the decision of this Court in Chet
Ram Vashist ‘s case (supra) had also been relied upon
to contend that the legal title of the petitioner in the said
open space stood extinguished and petitioner is holding
the land only as a trustee on behalf of the residents of
the locality.
As the petitioner had not discharged the
duties cast upon it as a trustee and had utterly failed to
develop the open space, the residents of the locality had
approached the local Ward Councilor (respondent No.3)
who had taken the initiative to develop the land in
question.
7.
The aforesaid detailed recital of the facts projected
by the parties had become necessary as the order of the
High Court assailed in the present SLP does not contain
any reference to the relevant circumstances in which the
High Court had passed the impugned order or the
reasons why the petitioner was relegated to the remedy
of initiating a civil action. Time and again this Court has
emphasized that such a course of action by a Court
cannot lead to a legally acceptable conclusion inasmuch
as the manner of reaching the decision and the reasons
therefor are sacrosanct to the judicial process. However,
we do not wish to dilate the aforesaid aspect of the
matter any further in view of the clear and consistent
insistence of this Court on the aforesaid fundamental
requirement.
8.
A reading of the order of the High Court would go to
show that its refusal to interdict the developmental
works undertaken or about to be undertaken is on the
ground that the Petitioner has an efficacious alternative
remedy, i.e. a suit for injunction. The Writ Court
exercising
jurisdiction
under
Article
26
of
the
Constitution is fully empowered to interdict the State or
its instrumentalities from embarking upon a course of
action to detriment of the rights of the citizens, though,
in the exercise of jurisdiction in the domain of public law
such a restraint order may not be issued against a
private individual.
This, of course, is not due to any
inherent lack of jurisdiction but on the basis that the
public law remedy should not be readily extended to
settlement of private disputes between individuals. Even
where such an order is sought against a public body the
Writ Court may refuse to interfere, if in the process of
determination disputed questions of fact or title would
require to be adjudicated.
9.
However, there is no universal rule or principle of
law which debars the Writ Court from entertaining
adjudications involving disputed questions of fact.
In
fact, in the realm of legal theory, no question or issue
would be beyond the adjudicatory jurisdiction under
Article 226, even if such adjudication would require
taking of oral evidence.
However, as a matter of
prudence, the High Court under Article 226 of the
Constitution, normally would not entertain a dispute
which would require it to adjudicate contested questions
and conflicting claims of the parties to determine the
correct facts for due application of the law.
International
Ltd.
&
Anr.
V.
Export
In ABL
Credit
Guarantee Corporation of India Ltd.2, the precise
position of the law in this regard has been explained in
paragraphs 16, 17 and 19 of the Judgment in the course
of which the earlier views of this Court in Smt.
2
[2004 (3) SCC 553]
Page 15
1
Gunwant Kaur & Ors. v. Municipal Committee,
Bhatinda & Ors.3 and Century Spg. & Mfg. Co. Ltd.
v. Ulhasnagar Municipal Council4 has been referred
to.
The aforesaid paragraphs of the judgment in ABL
International
Ltd.
&
Anr.
v.
Export
Credit
Guarantee Corporation of India Ltd. (supra) may,
therefore, be usefully extracted below:
“16.
A perusal of this judgment though shows
that a writ petition involving serious disputed
questions of facts which requires consideration of
evidence which is not on record, will not normally
be entertained by a court in the exercise of its
jurisdiction under Article 226 of the Constitution
of India. This decision again, in our opinion, does
not lay down an absolute rule that in all cases
involving disputed questions of fact the parties
should be relegated to a civil suit. In this view of
ours, we are supported by a judgment of this
Court in the case of Gunwant Kaur v. Municipal
Committee, Bhatinda - 1969 (3) SCC 769 where
dealing with such a situation of disputed
questions of fact in a writ petition this Court
held: (SCC p. 774, paras 14-16)
“14.
The High Court observed that they
will not determine disputed question of fact
in a writ petition. But what facts were in
3 [1969 (3) SCC 769]
4 [1970 (1) SCC 582]
Page 16
1
dispute and what were admitted could only
be determined after an affidavit-in-reply
was filed by the State. The High Court,
however, proceeded to dismiss the petition
in limine. The High Court is not deprived of
its jurisdiction to entertain a petition under
Article 226 merely because in considering
the petitioner's right to relief questions of
fact may fall to be determined. In a petition
under Article 226 the High Court has
jurisdiction to try issues both of fact and
law. Exercise of the jurisdiction is, it is
true, discretionary, but the discretion must
be exercised on sound judicial principles.
When the petition raises questions of fact
of a complex nature, which may for their
determination require oral evidence to be
taken, and on that account the High Court
is of the view that the dispute may not
appropriately be tried in a writ petition, the
High Court may decline to try a petition.
Rejection of a petition in limine will
normally be justified, where the High Court
is of the view that the petition is frivolous
or because of the nature of the claim made
dispute sought to be agitated, or that the
petition against the party against whom
relief is claimed is not maintainable or that
the dispute raised thereby is such that it
would be inappropriate to try it in the writ
jurisdiction, or for analogous reasons.
15. From the averments made in the petition
filed by the appellants it is clear that in proof
of a large number of allegations the
appellants
relied
upon
documentary
evidence and the only matter in respect of
which conflict of facts may possibly arise
related to the due publication of the
notification under Section 4 by the Collector.
16. In the present case, in our judgment, the
High Court was not justified in dismissing
the petition on the ground that it will not
determine disputed question of fact. The
High Court has jurisdiction to determine
questions of fact, even if they are in dispute
and the present, in our judgment, is a case
in which in the interests of both the parties
the High Court should have entertained the
petition and called for an affidavit-in-reply
from the respondents, and should have
proceeded to try the petition instead of
relegating the appellants to a separate suit.”
17. The above judgment of Gunwant Kaur (supra)
finds support from another judgment of this Court
in the case of Century Spg. and Mfg. Co. Ltd. v.
Ulhasnagar Municipal Council – 1970 (1) SCC 582
wherein this Court held: (SCC p. 587, para 13)
“Merely because a question of fact is
raised, the High Court will not be justified
in requiring the party to seek relief by the
somewhat lengthy, dilatory and expensive
process by a civil suit against a public
body. The questions of fact raised by the
petition in this case are elementary.”
19. Therefore, it is clear from the above
enunciation of law that merely because one of the
parties to the litigation raises a dispute in regard to
the facts of the case, the court entertaining such
petition under Article 226 of the Constitution is not
always bound to relegate the parties to a suit. In
the above case of Gunwant Kaur (supra) this Court
even went to the extent of holding that in a writ
petition, if the facts require, even oral evidence can
be taken. This clearly shows that in an appropriate
case, the writ court has the jurisdiction to
entertain a writ petition involving disputed
questions of fact and there is no absolute bar for
entertaining a writ petition even if the same arises
out of a contractual obligation and/or involves
some disputed questions of fact.
10.
The Petitioner in the present case claimed title to
the land in question on the basis of the deed of
Indenture dated 16.11.1977; the order of the Bombay
High Court in Suit No. 1/B/1981 and LPA No. 26 of
1983 as well as the proceedings of acquisition in respect
of an area of about 625 sq. m. out of the open space in
question. The State did not claim any title to the land
but had contended that by virtue of the judgment of this
Court in Pt. Chet Ram (supra) the Petitioner had ceased
to hold the normal attributes of ownership of immovable
property in respect of the land in question and its
position was more akin to that of a trustee holding the
land for the benefit of the public at large. The Housing
Society (defendant No.5), on the other hand, claim
easementary right of enjoyment of the open space. It is
only the Municipal Corporation, Panaji (defendant No.2),
who had claimed that the land has vested in it. How and
in what manner such vesting had occurred, however,
had not been stated in support of the claim of the
Corporation. There is complete silence in this regard. In
such circumstances, it was incumbent on the High
Court to undertake a deeper probe in the matter in order
to find out whether the claim of the Corporation had any
substance or had been so raised merely to relegate the
Petitioner to a more “lengthy, dilatory and expensive
process” that is inherent in a civil suit. The High Court,
in our considered view, ought not to have disposed of the
Writ Petition at the stage and in the manner it had so
done and, instead, ought to have satisfied itself that
there was actually a serious dispute between the parties
on the question of ownership or title. Only in that event,
the High Court would have been justified to relegate the
Petitioner to the Civil Court to seek his remedies by way
of a suit.
11.
On the view that we have taken, we have to
conclude that the impugned order dated 18.08.2011
passed by the High Court is not tenable in law.
However, having arrived at the aforesaid conclusion the
next question that has to engage our attention is what
would be the appropriate order in the facts and
circumstances of the case?
12.
In the counter affidavit filed before this Court, the
Respondent claims that about 40% of the work has been
completed and extension of time for completion of the
remaining work, as per the terms of the Contract, is
being processed. Though the Petitioner disputes the
aforesaid position, it may be reasonable to assume that
in absence of any interim order some progress in the
execution of the developmental work has taken place
during pendency of the present proceeding.
There is
also no manner of doubt that the land in question being
earmarked as open space and the said fact having been
affirmed by the High Court in Civil Suit No. 1/B/1981
and LPA No. 26 of 1983, the normal attributes of legal
ownership of the land have ceased insofar as the
Petitioner is concerned who is holding the land as a
Trustee on behalf of the residents and other members of
the Public.
The Petitioner cannot transfer the land or
use the same in any other manner except by keeping it
as an open space. The aforesaid position flows from the
decision of this Court in Pt. Chet Ram Vashist (supra)
wherein such a conclusion had been reached by this
Court in a largely similar set of facts.
13.
Keeping in mind the very limited rights of the
Petitioner that are disclosed at this stage by the
materials on record and taking into account the nature
of the developmental works that were proposed and the
fact that a part of the work may have been executed in
the meantime, we are of the view that the Respondents
should be permitted to complete the remaining work on
the land and the petitioner should be left with the option
of raising a claim before the appropriate forum for such
loss and compensation, if any, to which he may be
entitled to in law. Naturally, if any such claim of
compensation is required to be founded on proof of
title/ownership or any other such relevant fact(s), the
Petitioner will have to establish the same. No part of the
present order shall be construed to be an expression of
any opinion of this Court with regard to the ownership or
any other right or entitlement of the Petitioner which has
to be proved in accordance with law.
14.
Consequently, we dispose of the Civil Appeal in the
above terms.
...........................J.
[P SATHASIVAM]
...........................J.
[RANJAN GOGOI]
New Delhi,
10th September, 2012.
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