The learned Trial Judge has rightly noted that the
licences have been obtained from the statutory authorities as well
as from the Town and Country Planning Authority. The conversion
sanad has also been produced by the petitioners. The learned Trial
Judge has also noted that the joint inspection report clearly
discloses that the coverage of the construction is in accordance
with the sanctioned plans. The original licence was obtained for the
ground floor way back in the year 1998. In case of any
misrepresentation in the approved plans by the petitioners, the
statutory authorities can definitely examine this aspect while
examining the revision of the plans and granting of the occupancy
certificate. At this stage, taking note of the area as shown in the
survey records, I find that the learned Lower Appellate Court was
not justified to come to the conclusion that the respondent no.1
has established that there is discrepancy in the area as shown by
the petitioners while obtaining the permission for the construction
in dispute. The learned Trial Judge as such was justified to rely
upon the joint site inspection report prepared by the statutory
authorities to come to the conclusion that prima facie the:23:
respondent no.1 has failed to prove his contention that the
construction put up by the petitioners is illegal. It is also to be
noted that even the Dy. Director of Panchayat by judgment dated
14.06.2013 directed the local panchayat to grant technical
clearance in respect of construction licence to the petitioners
herein in terms of the technical report dated 11.10.2011. Apart
from that, admittedly, the construction has already reached the
second floor level and the development by the petitioners is prima
facie in accordance with the statutory licences. When the Court
grants a relief in such circumstances, equity demand that such
reliefs are granted by putting the parties on terms to avoid
multiplicity of proceedings and do complete justice at the time of
the final disposal of the suit on merits. As such in case the Court
is inclined to grant a relief to stop an ongoing development whichF
reached the second floor level, the party seeking such relief has to
be put on terms to ensure that in case he does not succeed in the
suit the aggrieved party would be adequately compensated. The
learned Lower Appellate Court has not even examined this aspect
whilst passing the impugned order.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 144 OF 2013
Mrs. Jennifer Mascarenhas,
V e r s u s
Mr. Jose Antonio Domnic Dias,
Coram :- F. M. REIS, J
Judgment pronounced on : 13th
March, 2015
Citation; 2015(6) MHLJ 680
Heard Shri S. D. Padiyar, learned Counsel appearing for:2:
the petitioners, Shri V. Shirodkar, learned Counsel appearing for
the respondent no. 1 and Shri P. Karpe, learned Counsel appearing
for the respondent no. 2.
2. The above Writ Petition, inter alia, seeks to quash the
Order dated 30.01.2013 passed by the Adhoc District Judge, North
Goa, at Panaji, in Misc. Civil Appeal No. 116 of 2012.
3. The records reveal that the respondent no. 1 filed
Regular Civil Suit No. 161 of 2011 in the Court of the Civil Judge,
Junior Division, at Panaji, against the Petitioner and the
respondent no. 2, inter alia, seeks for a permanent and mandatory
injunction and other consequential reliefs. An application for
temporary injunction was filed therein, inter alia, to restrain the
petitioners from doing any construction activity in the suit property
and/or from changing the nature thereof in any manner. A reply
and written statement was filed in the suit by the petitioners and
the respondent no.2. The Petitioner also filed a counter claim in
the said suit. The learned Civil Judge by an Order dated
31.10.2012, dismissed the application for temporary injunction.
4. Being aggrieved by the said Order, the respondent no.1
filed an appeal before the Lower Appellate Court, which came to be:3:
disposed of on 19.11.2012 thereby allowing the Appeal and
quashing and setting aside the Order of the learned Trial Judge
dated 31.10.2012.
5. Being aggrieved by the said order, the petitioners have
filed the present writ petition.
6. Shri S. D. Padiyar, learned Counsel appearing for the
petitioners, has assailed the impugned Order on the ground that it
is well settled that an Order of temporary injunction is within the
discretion of the learned Trial Court and, as such, interference in
such discretionary Orders by the Appellate Court is in very
exceptional circumstances when there is perversity or erroneous
exercise of discretion by Trial Court. Learned Counsel further
pointed out that the learned Trial Judge upon appreciating the
evidence on record rightly exercised the discretion in refusing the
temporary injunction application and, as such, the Lower Appellate
Court was not justified to interfere in the said Order in an Appeal
under Section 104 of the Civil Procedure Code. The learned
Counsel futher pointed out that the findings and conclusion of the
Appellate Court on the aspect of prima facie case balance of
convenience and irreparable loss are misconceived in law and fact
and, as such, cannot be sustained. Learned Counsel further:4:
pointed out that the Lower Appellate Court has failed to examine
the provisions of the Goa (Regulation of Land Development and
Building Construction) Act, 2008 and Goa Land Development and
Building Regulations, 2010 in their correct perspective whilst
passing the impugned Order. The learned Counsel further pointed
out that the Lower Appellate Court has failed to examine that the
petitioners had obtained all the requisite permissions from the
statutory authorities and, as such, the petitioners were entitled to
put up the construction in their own property. Learned Counsel
further pointed out that the respondent no. 1 himself has carried
out an illegal development in his own plot adjoining to the disputed
property and, as such, the respondent no. 1 was not entitled for
any equitable relief. The learned Counsel further pointed out that
the learned Appellate Court has also failed to note that the major
part of the construction of the frame work and slab of the second
floor was completed and, as such, grave injury would occasion to
the Appellants by the impugned Order. The learned Counsel
further pointed out that the learned Appellate Court had erred in
refusing to rely on the Deed of Rectification dated 06.05.1999.
The learned Counsel further pointed out that a conversion Sanad
was also obtained by the petitioners herein. The learned Counsel
has thereafter taken me through the technical clearance Order
dated 11.10.2011 from the Planning Authorities and pointed out:5:
that the development activity is in accordance with law. The
learned Counsel further submits that the inspection report of Shri
Bhobe cannot be relied upon as it is self contradictory. The
learned Counsel also pointed out that the report dated 29.11.2011
by the Planning Authorities clearly shows the extent of the
construction put up by the petitioners which extends up to second
floor. Learned Counsel has thereafter taken me through the
Judgment of the Lower Appellate Court to point out that it cannot
be sustained and deserves to be quashed and set aside. Learned
Counsel also pointed out that the respondent no.1 has not shown
any injury or inconvenience or irreparable injury in order to be
entitled for a temporary injunction. Learned Counsel further
pointed out that the construction put up by the petitioners has a
value of more than Rs.50,00,000/- and, as such, the question of
granting any interim reliefs without putting the respondent no.1 on
terms is not at all justified. Learned Counsel further points out
that no injury has been established by the respondent no.1 and
only because the Respondent no.1 is an adjoining owner of the
property in dispute surveyed under no. 416/7 the respondent no.1
is not entitled for a relief of injunction. Learned Counsel as such
submits that the impugned Order be quashed and set aside.
7. On the other hand, Shri Shirodkar, learned Counsel:6:
appearing for the respondent no. 1 has supported the impugned
Order. Learned Counsel has pointed out that the Appellate Court
has appreciated the evidence on record to come to the conclusion
that the respondent no. 1 has made out a prima facie case and
these findings of fact recorded by the Appellate Court cannot be
re-appreciated in a Petition under Article 227 of the Constitution of
India. Learned Counsel further points out that it is the case of the
respondent no. 1 that his parents are owners of the property
bearing survey no. 416/7 of Vilalge Calapur, Tiswadi Taluka by
virtue of a compromise Decree dated 06.04.1988. Learned
Counsel further submits that the the father of respondent no. 1
expired on 07.03.2009 and, as such, the respondent no. 1 and his
other brothers and sisters acquired undivided rights to the
property along with the mother. The learned Counsel further
pointed out that property was thereafter divided into three equal
parts and that the total area of the property surveyed under no.
416/7 is mentioned as 618 square metres but the measurements
at the site did not actually tally with the graphical distance therein
and, as such, according to him, the area at loco was 570 square
metres. Learned Counsel further pointed out that the plot bearing
letter no. 'C' was allotted to the parents of the respondent no. 1
and plots identified under no. 'A' and 'B' were allotted to Milagres
Jose Santana Barretto and Santaninha Leonildes de Silva and:7:
further a strip of land having a width of 2.5 metres was reserved
on the northern boundary of the property under survey no. 416/6
for the purpose of access in continuation of the two metre wide
way existing on the northern boundary so that a road of 4.5
metres is provided to the respondent no. 1 in the property as
owners thereof. Learned Counsel further pointed out that the
petitioners have put up an illegal construction without maintaining
the proper set backs and in breach of the statutory regulations
which forced the respondent no. 1 to file the suit, inter alia, to stop
such construction. Learned Counsel further pointed out that by
the proposed construction, the Petitioner encroached into the
access reserved between the two survey numbers and, as such,
the necessary set backs have not been maintained by the
petitioners. Learned Counsel further pointed out that the statutory
permissions have been granted on an assumption that the
petitioners have an area of 400 square metres under survey no.
416/3 at loco when, however, the area is only 344 square metres.
The learned Counsel further points out that the Lower Appellate
Court has come to the conclusion that the required set backs have
not been maintained and rightly granted the injunction. Learned
Counsel further pointed out that the Lower Appellate Court has
relied upon the Judgment of this Court in the case of Fatima Joao
vs. Village Panchayat of Merces, reported in 2000(10) LJ:8:
SOFT 18, to come to the conclusion that the relief of injunction is
to be granted. Learned Counsel as such pointed out that the above
Petition be dismissed.
8. Shri Karpe, learned Counsel appearing for the
respondent no. 2, has pointed out that the statutory authorities
have already granted permissions after examining the relevant
facts and circumstances of the case.
9. I have duly considered the submissions of the learned
counsel and I have also gone through the records. It is the case of
the respondent no.1 in the plaint that his parents are the owners
of the property bearing survey No. 416/7 of Village Calapur. The
father of the respondent no.1 expired on 07.03.2009 and
consequently, the respondent no.1 along his other brother and
sister acquired undivided right to the property along with their
mother. The father of the respondent no.1 had acquired right to
the property pursuant to the compromise decree dated 06.04.1988
passed by the learned Civil Judge Senior Division at Panaji in
Special Civil Suit No. 180/80/A whereby the property bearing
survey Nos. 416/6 and 7 were divided into three equal parts. As
per the survey records, the total area of the said two survey
holdings admeasure 618 square metres but according to the:9:
respondent no.1 the measurement at the site do not tally with the
graphical distances shown in the plan and as such the actual area
found at loco is 570 square metres. The plot identified by letter 'C'
was allotted to the parents of the respondent no.1 and plots
identified by letters 'A' and 'B” were allotted to Milagres Jose
Santana Barretto and Santaninha Leonildes de Silva. It is further
his case that the strip of land having a width of 2.5 metres was
reserved on the northern boundary of the property under survey
No. 416/6 for the purpose of access in continuation of the two
metres wide way existing on the northern boundary, so that a road
of 4.50 metres is provided to the respondent no.1. This access
according to the respondent no.1 should be enjoyed by the
respondent no.1 and the petitioners. According to the respondent
no.1, the plots 'A' and 'B' are surveyed under survey No. 416/6 of
Village Calapur having an area shown as 406 square metres
though in fact the area should have been 380 square metres and
that the area reserved for access i.e. 36 square metres being 2.5
metres X 14.40 metres is not shown on the survey plan.
Accordingly, it is the contention of the respondent no.1 that only
an area of 344 square metres are available at the site. It is also
his case that the area of plot no. C surveyed under survey No.
416/7 is shown as 212 square metres instead of 190 square
metres as stipulated in the compromise decree but according to:10:
the respondent no.1, stones have been installed under the said
compromise decree indicating the position of the respective plots.
It is further the case of the respondent no.1 that by sale deed
dated 07.01.1998 the said Milagres Jose Santana Barretto and
Santaninha Leonildes de Silva sold an area of 330 square metres
from the property surveyed under No. 416/6 to the petitioner no.1
and by deed of rectification dated 06.05.1999 the area of the plot
under said sale deed was increased to 406 square metres from
330 square metres on the basis of an area shown in the survey
record. It is further his case that such increase of area is without
any right and that the petitioner no.1 filed a suit against the
parents of the respondent no.1 for injunction and the said suit was
contested by the said parents and finally it came to be dismissed
for default. It is further his case that the petitioners started doing
illegal construction in the property surveyed under No. 416/6
without keeping proper set back which the respondent no.1 noticed
when he returned to Goa and immediately approached the
respondent no.2 to find out whether any permission for
construction was issued to the petitioners. It is further his case
that on going through the licence granted by the respondent no.2
he learnt that the petitioner no.1 had projected herself as an
owner of an area of 406 square metres and has thus
misrepresented the fact before the competent authority and got:11:
the plans approved as also the construction licence which is in
violation of the approved plans. It is also the contention of the
respondent no.1 that as per the approval granted by the Town and
Country Planning Department, vide letter dated 26.04.2011, the
petitioner no.1 has to obtain conversion sanad prior to
commencement of the construction but the petitioners have not
obtained any such conversion sanad. As such, according to the
respondent no.1 the entire construction undertaken by the
petitioners is illegal and that upon the complaint the respondent
no.2 directed the petitioners to stop the construction activity
immediately and after stopping for some time the petitioners again
started carrying out such construction and as no action was taken
by the respondent no.2, the respondent no.1 approached the
concerned police who observed that it was a civil dispute and as
such the suit was filed for the aforesaid reliefs.
10. The pleadings of the petitioners disclose that the
petitioners contend that the respondent no.1 has misrepresented
the material facts and the suit is bad for non joinder of necessary
parties. It is further their case that pursuant to the deed of sale
dated 07.01.1998 along with deed of rectification dated
06.05.1999, the petitioners have become the owners of the
property surveyed under no. 416/6 of Village Calapur. The said:12:
sale deed was never challenged by the father of the respondent
no.1 at any point of time despite of his knowledge in the year 2001
in Regular Civil Suit No. 82/2001. It is further their case that the
property of the respondent no.1 and the suit property are
separated by an access road of 1.50 metres which road is available
in the property surveyed under no. 416/2 of village Calapur and
that the petitioners have already filed an application for restoration
of the said suit. It is also their case that the construction
undertaken by the petitioners is carried on the already existing
structure surveyed under no. 416/6 and as such there is no
question of conversion. It is further their case that stop order
issued by respondent no.2 is without any authority of law and is
totally contrary to the provisions of Panchayat Raj Act, which the
petitioners have independently challenged by preferring Panchayat
Appeal No. 134/2011 and the same is pending adjudication. It is
further their case that as far as the deviation are concerned such
aspect would have to be examined under the provisions of the Goa
Land Development and Building Construction Regulation Act, 2010
and in particular sub clause (b) to clause 3.8 whereby such
revision can be obtained even at the time of applying for
occupancy certificate.
11. The respondent no.2 has also filed the written:13:
statement inter-alia contending that the said respondent has
already issued a construction licence dated 10.08.2011 to the
petitioners and there is no new construction licence issued. It is
also stated that no prejudice or irreparable injury would be caused
to the respondent no.1 in case an injunction is not granted.
12. The learned Trial Judge by order dated 31.10.2012 has
prima facie held that the respondent no.1 was not an owner in
respect of the property surveyed under No. 416/7 situated on the
northern side of the property surveyed under No. 416/6. The
learned Judge also noted that the property surveyed under No.
416/6 is purchased by the petitioners but the area of the said
property as described by the respondent no.1 who stated that such
area is 380 square metres whereas it is the case of the petitioners
that the area is 406 square metres relying upon the sale deed and
deed of rectification. The learned Judge as such after examining
the record has held that the compromise decree has more
weightage than the deed executed by the parties and therefore,
the learned Judge took a prima facie view that the predecessor in
title of the petitioners has a right to an area of 380 square metres
only and not 406 square metres and they could not have sold an
area more than 380 square metres. The learned Judge also noted
that it is not the case of the respondent no.1 that there was any:14:
encroachment carried out by the petitioners in the property
belonging to the respondent no.1. The learned Judge also noted
that the main contention of the respondent no.1 is that there is no
proper set back of 3.5 metres from the southern boundary of
property surveyed under No. 416/6 as according to the report of
Mr. Bhobe, the set back is only 1.5 metres. The learned Judge also
took note of the contention of the petitioners that the present
construction is merely an extension to the existing ground floor in
the suit plot bearing survey No. 416/6. The learned Judge took a
view that the construction licence dated 10.08.2011 reveals that
the petitioner no.1 was granted licence for the proposed extension
to the existing ground floor and the proposed first and second floor
in the property bearing survey No. 416/6 which refers to the plans
approved by the Town and Country Planning Authority on
12.04.2011. The learned Judge as such noted that the said licence
and the technical clearance order indicate that the structure was in
existence in the suit property which the petitioners are intending to
extend. The learned Judge also noted that the panchayat had
granted a construction licence for service workshop in survey
no.416/6 and occupancy certificate is dated 03.10.1998 which
fortifies the case of the petitioners that a structure was already
existing in the suit property. The learned Judge also noted that as
far as the deviation is concerned, in terms of the Regulations of:15:
2010 such deviations can be approved at the time of obtaining
occupancy certificate. The learned Judge also noted that the suit
construction has reached at the level of second floor and the plans
were approved in October, 2011 which shows that the set back of
four metres has to be maintained on the southern side of the suit
construction. The learned Judge also noted that the joint
inspection report discloses that the construction has been carried
out up to the second floor and that the area covered by the
construction is in accordance with the approved plans. It is also
noted that the actual set back on the southern and western sides
could not be measured as the exact boundary could not be
ascertained at the site. The learned Judge as such noted that
though the measurement of the set back could not be taken
nevertheless, the report dated 29.01.2011 shows that the area
covered by the suit construction is in accordance with the
approved plans. The learned Judge also noted that the judgment
in the case of Fatima ( supra ) is not applicable to the facts of the
present case. The learned Judge also noted that the respondent
no.1 have not established as to what injuries would be caused to
them by the suit construction and accordingly, dismissed the
application for temporary injunction.
13. In the appeal preferred by the respondent no.1, the:16:
learned Appellate Court while disposing of M.C.A. No. 116/12 by
judgment dated 30.01.2013 has noted that there is no specific
dispute of the fact that plots A and B came to be surveyed under
No. 416/6 and plot C came to be surveyed under No. 416/7 of
Village Calapur. The learned Judge also noted that the access of
2.5 metres width reserved on the northern side has not been
excluded from survey no.416/6 and as such, the area available for
construction is restricted to 344 square metres as claimed by the
respondent no.1. The learned Judge further noted that the survey
records are not documents of title and the vendors to the sale
deed are entitled to transfer only an area which they owned and
possessed. The learned Judge also noted that the technical
permission was obtained based on the sale deed as well as the
deed of rectification and that as per the technical clearance orders
dated 12.04.2011 and 11.10.2011 obtained by the petitioners,
they were required to obtain a conversion sanad under the Goa
Land Revenue Code, 1968 which they have not obtained. But
however, the learned Judge has noted that such conversion sanad
dated 31.07.2012 has been produced in the Trial Court along with
the additional written arguments. The learned Judge also noted
that the application for temporary injunction is not hit by delay.
The learned judge further found that the revised proposal for
construction by the petitioners is pending with the respondent:17:
no.2. The learned Judge noted that the inspection report of Mr.
Bhobe dated 8.11.2011 supports the contention of the respondent
no.1 that the construction undertaken by the petitioners is not in
conformity with the approved plan. The learned Judge however
noted that the joint site inspection report submitted by the Town
and Country Planning Authority is not sufficient to rebut the report
of Mr. Bhobe. The learned Judge also noted that the construction
licence has been obtained without verifying the actual boundaries
at the site. The learned Judge also found that the licence
produced by the petitioners dated 03.04.1998 in respect of the
service workshop was issued on the assumption that the area was
406 square metres. The learned Judge as such found that prima
facie set backs have not been maintained. The learned Judge
further noted that the Regulations of 2010 does not at all come to
the aid of the petitioners since the petitioners had knowingly
obtained the permissions from the concerned authorities on the
basis of a deed of rectification which was executed by them on the
basis of an area shown in the survey records without verifying the
actual area available at loco and consequently found that the
respondent no.1 has made out a prima facie case. The learned
Judge further found that allowing such construction would cause
injury to the respondent no.1. The learned Judge as such noted
that the learned Trial Court had failed to appreciate the case of the:18:
respondent no.1 in right prescriptive and without noting that the
set back could not be verified by the Town Planner and that the
learned Judge has erred in holding that the respondent no.1 has
not pleaded and established the nature of injuries caused to him
due to the said construction. The Appellate Court also found that
the Trial Court has erroneously found that new construction was
already in existence in survey No. 416/6 on the basis of the
construction licence dated 03.04.1998 and consequently, allowed
the appeal and granted an injunction.
14. On perusal of the judgment of the learned Lower
Appellate Court, it is evident that the learned Judge has reappreciated
the evidence on record to come to the conclusion that
the respondent no.1 had made out a prima faice case with regard
to the subject construction. On going through the plan attached to
the consent decree, I find that plots A, B and C are shown to have
an area of 190 square metres each. It is not disputed that plot C
belongs to the respondent no.1 whereas the plots A and B were
sold to the petitioners herein. The survey records in respect of the
property surveyed under No. 416/7 show the area therein as 212
square metres. Prima facie, the said area is not in accordance
with the consent decree which otherwise discloses to be an area of
190 square metres only. The respondent no.1 has failed to explain:19:
as to how the area exceeded as shown in the consent decree. The
survey records in respect of the property surveyed under no.
416/6 show the area therein to be 406 square metres. The survey
records have been duly promulgated. Apart from that, the Trial
Court has found that the area of the petitioners prima facie should
be considered to be 380 square metres as shown in the consent
decree. On perusal of the licence granted by the respondent no.2
dated 10.08.2011, it clearly states that the licence is for a
proposed extension to the existing ground floor of the first and
second floor as per the plans approved by the Dy. Town Planner
vide N.O.C. dated 21.07.2011. This clearly prima facie shows that
the construction being put up by the petitioners is only an
extension to the existing ground floor plinth area.
15. Mr. Padiyar, learned counsel appearing for the
petitioners has in fact stated out that the petitioners have not
extended the existing plinth area of the original service workshop
which was approved way back in the year 1998. In such
circumstances, the learned Trial Judge has noted that in the joint
site inspection report the area covered by the construction is in
accordance with the approved plans. This shows that from the year
1998 the set back from the southern boundary of the property
surveyed under no. 416/6 is the same. In such circumstances, the:20:
learned Lower Appellate Court was not justified to embark into the
re-appreciation of evidence to come to any contrary findings on
this count. Even on perusal of the inspection report of Mr. Bhobe,
he has clearly stated that an area of 26 square metres has been
excluded from the property surveyed under no. 416/7 and an area
of 22 square metres has been excluded from the property
surveyed under no.416/6 at the time of the actual Commissioner's
report prepared at the time of the compromise decree. It is further
pointed out that such strips are with the holders of the land
surveyed under nos. 416/11 and 416/2. These findings of the
report of Mr. Bhobe, prima facie are not in accordance with the
area as shown in the survey records as pointed out herein above.
On going through the area statement in the approved plan the net
effective area of the plot is shown as 310.40 square metres. It
further discloses that the existing covered area is 85.57 square
metres and the proposed covered area is 31.59 square metres. It
further shows that the total covered area is 117.16 square metres
and as such the coverage consumed is 37.48 square metres. It
also shows that the permissible coverage is 124.16 square metres
and the permissible F.A.R. ( 80%) works out to 248.32 square
metres. It also discloses that the total floor area ( existing plus
proposed) worked out to 199.36 square metres and the F.A.R.
consumed is 64.23 percent. Taking the said noting into:21:
consideration the findings of the learned Lower Appellate Court
that the construction which being put up by the petitioners was
not an extension of the existing structure is not in accordance with
the material on record. At this prima facie stage, the notings in
the said findings would have to be accepted. As such, the
construction being put up by the petitioners does not totally
consume the FAR nor the coverable area as permitted by the
statutory authorities. In such circumstances, the findings of the
learned Lower Appellate Court that proper set backs have not been
maintained on the southern side, prima facie, does not appear to
be correct. No doubt, in case the deviations carried out by the
petitioners do not meet the statutory requirements, the authorities
will not sanction the revised plans nor grant any occupancy
certificate to the petitioners. The authorities will also ensures that
the disputed construction is as per the statutory Regulations and
the set backs are clearly available at the site before grating the
completion certificate. Besides that the learned Trial Judge has
rightly noted that it is not the case of the respondent no.1 that the
petitioners have carried out any encroachment into their property.
Apart from that, there is no irreparable injury prima facie
established by the respondent no.1 which would entitle the
respondent no.1 for an injunction at this stage. No doubt, any
construction activity hereafter put up by the petitioners will be:22:
subject to the result of the suit and the petitioners shall not be
entitled to claim any equities on account of such development
carried out in the property surveyed under No. 416/6.
16. The learned Trial Judge has rightly noted that the
licences have been obtained from the statutory authorities as well
as from the Town and Country Planning Authority. The conversion
sanad has also been produced by the petitioners. The learned Trial
Judge has also noted that the joint inspection report clearly
discloses that the coverage of the construction is in accordance
with the sanctioned plans. The original licence was obtained for the
ground floor way back in the year 1998. In case of any
misrepresentation in the approved plans by the petitioners, the
statutory authorities can definitely examine this aspect while
examining the revision of the plans and granting of the occupancy
certificate. At this stage, taking note of the area as shown in the
survey records, I find that the learned Lower Appellate Court was
not justified to come to the conclusion that the respondent no.1
has established that there is discrepancy in the area as shown by
the petitioners while obtaining the permission for the construction
in dispute. The learned Trial Judge as such was justified to rely
upon the joint site inspection report prepared by the statutory
authorities to come to the conclusion that prima facie the:23:
respondent no.1 has failed to prove his contention that the
construction put up by the petitioners is illegal. It is also to be
noted that even the Dy. Director of Panchayat by judgment dated
14.06.2013 directed the local panchayat to grant technical
clearance in respect of construction licence to the petitioners
herein in terms of the technical report dated 11.10.2011. Apart
from that, admittedly, the construction has already reached the
second floor level and the development by the petitioners is prima
facie in accordance with the statutory licences. When the Court
grants a relief in such circumstances, equity demand that such
reliefs are granted by putting the parties on terms to avoid
multiplicity of proceedings and do complete justice at the time of
the final disposal of the suit on merits. As such in case the Court
is inclined to grant a relief to stop an ongoing development which
reached the second floor level, the party seeking such relief has to
be put on terms to ensure that in case he does not succeed in the
suit the aggrieved party would be adequately compensated. The
learned Lower Appellate Court has not even examined this aspect
whilst passing the impugned order.
17. The Apex Court in the judgment reported in (2013) 9
SCC 221 in the case of Mohd. Mehtab Khan and others V/s
Khushnuma Ibrahim Khan and others has observed at paras:24:
20 to 22 thus :
“20. In a situation where the learned trial
court on a consideration of the respective
cases of the parties and the documents
laid before it was of the view that the
entitlement of the plaintiffs to an order of
interim mandatory injunction was in
serious doubt, the appellate court could
not have interfered with the exercise of
discretion by the learned trial Judge
unless such exercise was found to be
palpably incorrect or untenable. The
reasons that weighed with the learned
trial Judge, as already noticed, according
to us, do not indicate that the view taken
is not a possible view. The appellate
court, therefore, should not have
substituted its views in the matter merely
on the ground that in its opinion the facts
of the case call for a different conclusion.
Such an exercise is not the correct
parameter for exercise of jurisdiction
while hearing an appeal against a
discretionary order. While we must not be
understood to have said that the
appellate court was wrong in its
conclusions what is sought to be
emphasised is that as long as the view of
the trial court was a possible view the
appellate court should not have interfered:25:
with the same following the virtually
settled principles of law in this regard as
laid down by this Court in Wander Ltd. v.
Antox India (P) Ltd.
21. Para 14 of the aforesaid judgment
which is extracted below would amply
sum up the situation: (Wander Ltd. case,
SCC p. 533)
“14. The appeals before the Division
Bench were against the exercise of
discretion by the Single Judge. In such
appeals, the appellate court will not
interfere with the exercise of discretion of
the court of first instance and substitute
its own discretion except where the
discretion has been shown to have been
exercised arbitrarily, or capriciously or
perversely or where the court had ignored
the settled principles of law regulating
grant or refusal of interlocutory
injunctions. An appeal against exercise of
discretion is said to be an appeal on
principle. Appellate court will not reassess
the material and seek to reach a
conclusion different from the one reached
by the court below if the one reached by
that court was reasonably possible on the
material. The appellate court would
normally not be justified in interfering
with the exercise of discretion under:26:
appeal solely on the ground that if it had
considered the matter at the trial stage it
would have come to a contrary
conclusion. If the discretion has been
exercised by the trial court reasonably
and in a judicial manner the fact that the
appellate court would have taken a
different view may not justify interference
with the trial court’s exercise of
discretion. After referring to these
principles Gajendragadkar, J. in Printers
(Mysore) (P) Ltd. v. Pothan Joseph: (AIR
p. 1159, para 9)
‘9. … These principles are well
established; but, as has been observed by
Viscount Simon in Osenton (Charles) &
Co. v. Johnston: (AC p. 138)
“… The law as to the reversal by a Court
of Appeal of an order made by [a] Judge
below in the exercise of his discretion is
well established, and any difficulty that
arises is due only to the application of
well-settled principles in an individual
case.”’
The appellate judgment does not seem to
defer to this principle.”
22. Though the above discussions would
lead us to the conclusion that the learned
Appellate Bench of the High Court was not:27:
correct in interfering with the order
passed by the learned trial Judge we wish
to make it clear that our aforesaid
conclusion is not an expression of our
opinion on the merits of the controversy
between the parties. Our disagreement
with the view of the Division Bench is
purely on the ground that the manner of
exercise of the appellate power is not
consistent with the law laid down by this
Court in Wander Ltd. Accordingly, we set
aside the order dated 9-10-2012 passed
by the Appellate Bench of the Bombay
High Court and while restoring the order
dated 13-4-2012 of the learned trial
Judge we request the learned trial Judge,
or such other court to which the case
may, in the meantime, have been
transferred to dispose of the main suit as
expeditiously as its calendar would permit
with the expectation that the same will be
possible within a period of six months
from the date of receipt of this order. The
appeal shall stand disposed of in terms of
the above.”:28:
18. Taking note of the observations of the Apex Court, as
the learned Trial Jude upon consideration of the respective cases of
the parties and the documents laid before the Court was of the
view that the entitlement of the plaintiffs to an order of injunction
was seriously doubtful, the Appellate Court could not have
interfered with the exercise of discretion by the Trial Judge unless
such exercise was found to be palpably incorrect or untenable.
The weightage given by the learned Trial Judge while refusing a
relief to the respondent no.1 does not indicate that the view taken
is not a possible view. In the present case, as pointed out herein
above, the learned Trial Judge has relied upon the public
documents including the survey records and the permissions
granted by by authorities to come to the conclusion that the
respondent no.1 has not made out a prima facie case. The learned
Lower Appellate Court has re-appreciated the evidence and relied
on the affidavits and reports which have to be otherwise proved in
the trial to come to the conclusion that there was a discrepancy in
the area which finding is contrary to the survey records as well as
the other material produced by the parties as pointed herein
above. Apart from that, it is not the case of the respondent no.1
that there is an encroachment in his property when in fact even his
area is more than the area as shown in the compromise decree.
In the face of such material on record, the learned Lower Appellate:29:
Court was not justified to hold that the learned Trial Judge has not
exercised the discretion in refusing the application for temporary
injunction in accordance with law. No doubt, as pointed out herein
above, any construction activities carried out by the petitioners will
be subject to the result of the suit filed by the respondent no.1.
19. The reliance placed by the learned counsel appearing
for the respondent no.1 in the case of Fatima ( supra ) is not
applicable to the facts of the present case. The fact therein
discloses that the plaintiffs therein inter-alia contend that she had
a right of access through the plot belonging to the defendants who
was putting up a construction in his property which would affect
such right of access of the plaintiffs therein. However, in the
present case the respondent no.1 does not claim that he has any
right of access through the property purchased by the petitioners
surveyed under No. 416/6. Apart from that, the sanctioned licence
also do not disclose that the petitioners have consumed the total
F.A.R. nor the total allowed coverage area. The main dispute
between the parties with regard to the alleged access reserved on
the northern boundary of the property surveyed under no. 416/6
which prima facie has not been affected. Merely leaving an access
does not in any case divest the title of the owner over such area.
Prima facie, there is no material produced by the respondent no.1:30:
to show that there was any transfer of such reserved area in
favour of the third party. Apart from that, such alleged access is
not depicted in the survey records. The contention of the learned
counsel appearing for the petitioners that this Court should not
interfere in a writ jurisdiction on the findings of the learned Lower
Appellate Court cannot be accepted in the facts and circumstances
of the present case. As pointed out herein above, the learned
Lower Appellate Court has erroneously exercised its jurisdiction in
interfering with the discretion exercised by the learned Trial Judge
while refusing the application for temporary injunction filed by the
respondent no.1. In such circumstances, the said contention of
the learned counsel appearing for the respondent no.1 cannot be
accepted.
20. The learned Single Judge of this Court in the judgment
passed in Appeal From Order No. 45 of 2012 dated
10.05.2013 in the case of Mrs. Ema Moraes V/s The State of
Goa and others, has observed at para 4 thus :
“4. Perusal of the plaint shows that it does
not contain any averment to support the
prayer of declaration of easementary right
of light and air. There is not even an
averment that such a right has been
enjoyed by them at any point of time, much:31:
less the manner of such enjoyment. The
plaintiffs do not give description of their
house in order to indicate the enjoyment
of the easementary right and how
the same has been obstructed by any
act of defendant no.5. The entire plaint is
seen to be devoted to the alleged violations
by defendant no.5 of the provisions of
Planning and Development Authorities
Regulations, 2000 and Margao Municipal
Building Bye laws, 1979 . Therefore, on a
prima facie view of the matter there can be
no objection to the construction carried out
by defendant no.5 based on any
easementary right of the plaintiffs.
21. In view of the discussions supra, I find that the
learned Lower Appellate Court was not justified to interfere with
the discretion exercised by the Trial Judge. In any event, when the
party opts to file a suit, a permanent injunction can be granted in
terms of Section 38 of the Specific Relief Act, 1963 which clearly
provides that the Court may grant an injunction to the plaintiff to
prevent a breach of an obligation existing in his favour whether
expressly or by implication subject to other provisions contained in
Chapter II. It further contemplates that the act of the defendant
should invade or threaten to invade the plaintiff's right to the
enjoyment of the property and the cases wherein such injunction:32:
may be granted are clearly specified. In such circumstances, in
the present case, the learned Trial Judge has rightly noted that the
respondent no.1 has failed to prove the actual injury on account of
development being carried out by the petitioners of putting up two
floors on the existing ground floor structure in the property
admittedly belonging to the petitioners. Apart from that, prima
facie the respondent no.1 has failed to establish that the licence
obtained by the petitioners is not in accordance with the statutory
regulations. The dispute with regard to the area as claimed by the
respondent no.1 is to be adjudicated on its own merits at the time
of the hearing of the suit. No doubt, as pointed out herein above,
any construction activity carried out by the petitioners will be
subject to the result of the suit. The statutory authorities would
be at liberty to take action against the petitioners in case of any
infringement of the construction licence as well as any
misrepresentation by the petitioners while obtaining such licence.
22. In view of the above, the impugned judgment passed
by the learned Lower Appellate Court dated 30.01.2013 cannot be
sustained and the same is quashed and set aside. Any
development activity carried out by the petitioners in the disputed
property surveyed under no.416/6 of Calapur village shall be
subject to the result of the suit filed by the respondent no.1.:33:
Needless to say that the findings arrived at herein are only prima
facie findings and shall not influence the Court while deciding the
suit on its own merits. Rule is made absolute in above terms. The
petition stands disposed of accordingly.
F. M. REIS, J
Print Page
licences have been obtained from the statutory authorities as well
as from the Town and Country Planning Authority. The conversion
sanad has also been produced by the petitioners. The learned Trial
Judge has also noted that the joint inspection report clearly
discloses that the coverage of the construction is in accordance
with the sanctioned plans. The original licence was obtained for the
ground floor way back in the year 1998. In case of any
misrepresentation in the approved plans by the petitioners, the
statutory authorities can definitely examine this aspect while
examining the revision of the plans and granting of the occupancy
certificate. At this stage, taking note of the area as shown in the
survey records, I find that the learned Lower Appellate Court was
not justified to come to the conclusion that the respondent no.1
has established that there is discrepancy in the area as shown by
the petitioners while obtaining the permission for the construction
in dispute. The learned Trial Judge as such was justified to rely
upon the joint site inspection report prepared by the statutory
authorities to come to the conclusion that prima facie the:23:
respondent no.1 has failed to prove his contention that the
construction put up by the petitioners is illegal. It is also to be
noted that even the Dy. Director of Panchayat by judgment dated
14.06.2013 directed the local panchayat to grant technical
clearance in respect of construction licence to the petitioners
herein in terms of the technical report dated 11.10.2011. Apart
from that, admittedly, the construction has already reached the
second floor level and the development by the petitioners is prima
facie in accordance with the statutory licences. When the Court
grants a relief in such circumstances, equity demand that such
reliefs are granted by putting the parties on terms to avoid
multiplicity of proceedings and do complete justice at the time of
the final disposal of the suit on merits. As such in case the Court
is inclined to grant a relief to stop an ongoing development whichF
reached the second floor level, the party seeking such relief has to
be put on terms to ensure that in case he does not succeed in the
suit the aggrieved party would be adequately compensated. The
learned Lower Appellate Court has not even examined this aspect
whilst passing the impugned order.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 144 OF 2013
Mrs. Jennifer Mascarenhas,
V e r s u s
Mr. Jose Antonio Domnic Dias,
Coram :- F. M. REIS, J
Judgment pronounced on : 13th
March, 2015
Citation; 2015(6) MHLJ 680
Heard Shri S. D. Padiyar, learned Counsel appearing for:2:
the petitioners, Shri V. Shirodkar, learned Counsel appearing for
the respondent no. 1 and Shri P. Karpe, learned Counsel appearing
for the respondent no. 2.
2. The above Writ Petition, inter alia, seeks to quash the
Order dated 30.01.2013 passed by the Adhoc District Judge, North
Goa, at Panaji, in Misc. Civil Appeal No. 116 of 2012.
3. The records reveal that the respondent no. 1 filed
Regular Civil Suit No. 161 of 2011 in the Court of the Civil Judge,
Junior Division, at Panaji, against the Petitioner and the
respondent no. 2, inter alia, seeks for a permanent and mandatory
injunction and other consequential reliefs. An application for
temporary injunction was filed therein, inter alia, to restrain the
petitioners from doing any construction activity in the suit property
and/or from changing the nature thereof in any manner. A reply
and written statement was filed in the suit by the petitioners and
the respondent no.2. The Petitioner also filed a counter claim in
the said suit. The learned Civil Judge by an Order dated
31.10.2012, dismissed the application for temporary injunction.
4. Being aggrieved by the said Order, the respondent no.1
filed an appeal before the Lower Appellate Court, which came to be:3:
disposed of on 19.11.2012 thereby allowing the Appeal and
quashing and setting aside the Order of the learned Trial Judge
dated 31.10.2012.
5. Being aggrieved by the said order, the petitioners have
filed the present writ petition.
6. Shri S. D. Padiyar, learned Counsel appearing for the
petitioners, has assailed the impugned Order on the ground that it
is well settled that an Order of temporary injunction is within the
discretion of the learned Trial Court and, as such, interference in
such discretionary Orders by the Appellate Court is in very
exceptional circumstances when there is perversity or erroneous
exercise of discretion by Trial Court. Learned Counsel further
pointed out that the learned Trial Judge upon appreciating the
evidence on record rightly exercised the discretion in refusing the
temporary injunction application and, as such, the Lower Appellate
Court was not justified to interfere in the said Order in an Appeal
under Section 104 of the Civil Procedure Code. The learned
Counsel futher pointed out that the findings and conclusion of the
Appellate Court on the aspect of prima facie case balance of
convenience and irreparable loss are misconceived in law and fact
and, as such, cannot be sustained. Learned Counsel further:4:
pointed out that the Lower Appellate Court has failed to examine
the provisions of the Goa (Regulation of Land Development and
Building Construction) Act, 2008 and Goa Land Development and
Building Regulations, 2010 in their correct perspective whilst
passing the impugned Order. The learned Counsel further pointed
out that the Lower Appellate Court has failed to examine that the
petitioners had obtained all the requisite permissions from the
statutory authorities and, as such, the petitioners were entitled to
put up the construction in their own property. Learned Counsel
further pointed out that the respondent no. 1 himself has carried
out an illegal development in his own plot adjoining to the disputed
property and, as such, the respondent no. 1 was not entitled for
any equitable relief. The learned Counsel further pointed out that
the learned Appellate Court has also failed to note that the major
part of the construction of the frame work and slab of the second
floor was completed and, as such, grave injury would occasion to
the Appellants by the impugned Order. The learned Counsel
further pointed out that the learned Appellate Court had erred in
refusing to rely on the Deed of Rectification dated 06.05.1999.
The learned Counsel further pointed out that a conversion Sanad
was also obtained by the petitioners herein. The learned Counsel
has thereafter taken me through the technical clearance Order
dated 11.10.2011 from the Planning Authorities and pointed out:5:
that the development activity is in accordance with law. The
learned Counsel further submits that the inspection report of Shri
Bhobe cannot be relied upon as it is self contradictory. The
learned Counsel also pointed out that the report dated 29.11.2011
by the Planning Authorities clearly shows the extent of the
construction put up by the petitioners which extends up to second
floor. Learned Counsel has thereafter taken me through the
Judgment of the Lower Appellate Court to point out that it cannot
be sustained and deserves to be quashed and set aside. Learned
Counsel also pointed out that the respondent no.1 has not shown
any injury or inconvenience or irreparable injury in order to be
entitled for a temporary injunction. Learned Counsel further
pointed out that the construction put up by the petitioners has a
value of more than Rs.50,00,000/- and, as such, the question of
granting any interim reliefs without putting the respondent no.1 on
terms is not at all justified. Learned Counsel further points out
that no injury has been established by the respondent no.1 and
only because the Respondent no.1 is an adjoining owner of the
property in dispute surveyed under no. 416/7 the respondent no.1
is not entitled for a relief of injunction. Learned Counsel as such
submits that the impugned Order be quashed and set aside.
7. On the other hand, Shri Shirodkar, learned Counsel:6:
appearing for the respondent no. 1 has supported the impugned
Order. Learned Counsel has pointed out that the Appellate Court
has appreciated the evidence on record to come to the conclusion
that the respondent no. 1 has made out a prima facie case and
these findings of fact recorded by the Appellate Court cannot be
re-appreciated in a Petition under Article 227 of the Constitution of
India. Learned Counsel further points out that it is the case of the
respondent no. 1 that his parents are owners of the property
bearing survey no. 416/7 of Vilalge Calapur, Tiswadi Taluka by
virtue of a compromise Decree dated 06.04.1988. Learned
Counsel further submits that the the father of respondent no. 1
expired on 07.03.2009 and, as such, the respondent no. 1 and his
other brothers and sisters acquired undivided rights to the
property along with the mother. The learned Counsel further
pointed out that property was thereafter divided into three equal
parts and that the total area of the property surveyed under no.
416/7 is mentioned as 618 square metres but the measurements
at the site did not actually tally with the graphical distance therein
and, as such, according to him, the area at loco was 570 square
metres. Learned Counsel further pointed out that the plot bearing
letter no. 'C' was allotted to the parents of the respondent no. 1
and plots identified under no. 'A' and 'B' were allotted to Milagres
Jose Santana Barretto and Santaninha Leonildes de Silva and:7:
further a strip of land having a width of 2.5 metres was reserved
on the northern boundary of the property under survey no. 416/6
for the purpose of access in continuation of the two metre wide
way existing on the northern boundary so that a road of 4.5
metres is provided to the respondent no. 1 in the property as
owners thereof. Learned Counsel further pointed out that the
petitioners have put up an illegal construction without maintaining
the proper set backs and in breach of the statutory regulations
which forced the respondent no. 1 to file the suit, inter alia, to stop
such construction. Learned Counsel further pointed out that by
the proposed construction, the Petitioner encroached into the
access reserved between the two survey numbers and, as such,
the necessary set backs have not been maintained by the
petitioners. Learned Counsel further pointed out that the statutory
permissions have been granted on an assumption that the
petitioners have an area of 400 square metres under survey no.
416/3 at loco when, however, the area is only 344 square metres.
The learned Counsel further points out that the Lower Appellate
Court has come to the conclusion that the required set backs have
not been maintained and rightly granted the injunction. Learned
Counsel further pointed out that the Lower Appellate Court has
relied upon the Judgment of this Court in the case of Fatima Joao
vs. Village Panchayat of Merces, reported in 2000(10) LJ:8:
SOFT 18, to come to the conclusion that the relief of injunction is
to be granted. Learned Counsel as such pointed out that the above
Petition be dismissed.
8. Shri Karpe, learned Counsel appearing for the
respondent no. 2, has pointed out that the statutory authorities
have already granted permissions after examining the relevant
facts and circumstances of the case.
9. I have duly considered the submissions of the learned
counsel and I have also gone through the records. It is the case of
the respondent no.1 in the plaint that his parents are the owners
of the property bearing survey No. 416/7 of Village Calapur. The
father of the respondent no.1 expired on 07.03.2009 and
consequently, the respondent no.1 along his other brother and
sister acquired undivided right to the property along with their
mother. The father of the respondent no.1 had acquired right to
the property pursuant to the compromise decree dated 06.04.1988
passed by the learned Civil Judge Senior Division at Panaji in
Special Civil Suit No. 180/80/A whereby the property bearing
survey Nos. 416/6 and 7 were divided into three equal parts. As
per the survey records, the total area of the said two survey
holdings admeasure 618 square metres but according to the:9:
respondent no.1 the measurement at the site do not tally with the
graphical distances shown in the plan and as such the actual area
found at loco is 570 square metres. The plot identified by letter 'C'
was allotted to the parents of the respondent no.1 and plots
identified by letters 'A' and 'B” were allotted to Milagres Jose
Santana Barretto and Santaninha Leonildes de Silva. It is further
his case that the strip of land having a width of 2.5 metres was
reserved on the northern boundary of the property under survey
No. 416/6 for the purpose of access in continuation of the two
metres wide way existing on the northern boundary, so that a road
of 4.50 metres is provided to the respondent no.1. This access
according to the respondent no.1 should be enjoyed by the
respondent no.1 and the petitioners. According to the respondent
no.1, the plots 'A' and 'B' are surveyed under survey No. 416/6 of
Village Calapur having an area shown as 406 square metres
though in fact the area should have been 380 square metres and
that the area reserved for access i.e. 36 square metres being 2.5
metres X 14.40 metres is not shown on the survey plan.
Accordingly, it is the contention of the respondent no.1 that only
an area of 344 square metres are available at the site. It is also
his case that the area of plot no. C surveyed under survey No.
416/7 is shown as 212 square metres instead of 190 square
metres as stipulated in the compromise decree but according to:10:
the respondent no.1, stones have been installed under the said
compromise decree indicating the position of the respective plots.
It is further the case of the respondent no.1 that by sale deed
dated 07.01.1998 the said Milagres Jose Santana Barretto and
Santaninha Leonildes de Silva sold an area of 330 square metres
from the property surveyed under No. 416/6 to the petitioner no.1
and by deed of rectification dated 06.05.1999 the area of the plot
under said sale deed was increased to 406 square metres from
330 square metres on the basis of an area shown in the survey
record. It is further his case that such increase of area is without
any right and that the petitioner no.1 filed a suit against the
parents of the respondent no.1 for injunction and the said suit was
contested by the said parents and finally it came to be dismissed
for default. It is further his case that the petitioners started doing
illegal construction in the property surveyed under No. 416/6
without keeping proper set back which the respondent no.1 noticed
when he returned to Goa and immediately approached the
respondent no.2 to find out whether any permission for
construction was issued to the petitioners. It is further his case
that on going through the licence granted by the respondent no.2
he learnt that the petitioner no.1 had projected herself as an
owner of an area of 406 square metres and has thus
misrepresented the fact before the competent authority and got:11:
the plans approved as also the construction licence which is in
violation of the approved plans. It is also the contention of the
respondent no.1 that as per the approval granted by the Town and
Country Planning Department, vide letter dated 26.04.2011, the
petitioner no.1 has to obtain conversion sanad prior to
commencement of the construction but the petitioners have not
obtained any such conversion sanad. As such, according to the
respondent no.1 the entire construction undertaken by the
petitioners is illegal and that upon the complaint the respondent
no.2 directed the petitioners to stop the construction activity
immediately and after stopping for some time the petitioners again
started carrying out such construction and as no action was taken
by the respondent no.2, the respondent no.1 approached the
concerned police who observed that it was a civil dispute and as
such the suit was filed for the aforesaid reliefs.
10. The pleadings of the petitioners disclose that the
petitioners contend that the respondent no.1 has misrepresented
the material facts and the suit is bad for non joinder of necessary
parties. It is further their case that pursuant to the deed of sale
dated 07.01.1998 along with deed of rectification dated
06.05.1999, the petitioners have become the owners of the
property surveyed under no. 416/6 of Village Calapur. The said:12:
sale deed was never challenged by the father of the respondent
no.1 at any point of time despite of his knowledge in the year 2001
in Regular Civil Suit No. 82/2001. It is further their case that the
property of the respondent no.1 and the suit property are
separated by an access road of 1.50 metres which road is available
in the property surveyed under no. 416/2 of village Calapur and
that the petitioners have already filed an application for restoration
of the said suit. It is also their case that the construction
undertaken by the petitioners is carried on the already existing
structure surveyed under no. 416/6 and as such there is no
question of conversion. It is further their case that stop order
issued by respondent no.2 is without any authority of law and is
totally contrary to the provisions of Panchayat Raj Act, which the
petitioners have independently challenged by preferring Panchayat
Appeal No. 134/2011 and the same is pending adjudication. It is
further their case that as far as the deviation are concerned such
aspect would have to be examined under the provisions of the Goa
Land Development and Building Construction Regulation Act, 2010
and in particular sub clause (b) to clause 3.8 whereby such
revision can be obtained even at the time of applying for
occupancy certificate.
11. The respondent no.2 has also filed the written:13:
statement inter-alia contending that the said respondent has
already issued a construction licence dated 10.08.2011 to the
petitioners and there is no new construction licence issued. It is
also stated that no prejudice or irreparable injury would be caused
to the respondent no.1 in case an injunction is not granted.
12. The learned Trial Judge by order dated 31.10.2012 has
prima facie held that the respondent no.1 was not an owner in
respect of the property surveyed under No. 416/7 situated on the
northern side of the property surveyed under No. 416/6. The
learned Judge also noted that the property surveyed under No.
416/6 is purchased by the petitioners but the area of the said
property as described by the respondent no.1 who stated that such
area is 380 square metres whereas it is the case of the petitioners
that the area is 406 square metres relying upon the sale deed and
deed of rectification. The learned Judge as such after examining
the record has held that the compromise decree has more
weightage than the deed executed by the parties and therefore,
the learned Judge took a prima facie view that the predecessor in
title of the petitioners has a right to an area of 380 square metres
only and not 406 square metres and they could not have sold an
area more than 380 square metres. The learned Judge also noted
that it is not the case of the respondent no.1 that there was any:14:
encroachment carried out by the petitioners in the property
belonging to the respondent no.1. The learned Judge also noted
that the main contention of the respondent no.1 is that there is no
proper set back of 3.5 metres from the southern boundary of
property surveyed under No. 416/6 as according to the report of
Mr. Bhobe, the set back is only 1.5 metres. The learned Judge also
took note of the contention of the petitioners that the present
construction is merely an extension to the existing ground floor in
the suit plot bearing survey No. 416/6. The learned Judge took a
view that the construction licence dated 10.08.2011 reveals that
the petitioner no.1 was granted licence for the proposed extension
to the existing ground floor and the proposed first and second floor
in the property bearing survey No. 416/6 which refers to the plans
approved by the Town and Country Planning Authority on
12.04.2011. The learned Judge as such noted that the said licence
and the technical clearance order indicate that the structure was in
existence in the suit property which the petitioners are intending to
extend. The learned Judge also noted that the panchayat had
granted a construction licence for service workshop in survey
no.416/6 and occupancy certificate is dated 03.10.1998 which
fortifies the case of the petitioners that a structure was already
existing in the suit property. The learned Judge also noted that as
far as the deviation is concerned, in terms of the Regulations of:15:
2010 such deviations can be approved at the time of obtaining
occupancy certificate. The learned Judge also noted that the suit
construction has reached at the level of second floor and the plans
were approved in October, 2011 which shows that the set back of
four metres has to be maintained on the southern side of the suit
construction. The learned Judge also noted that the joint
inspection report discloses that the construction has been carried
out up to the second floor and that the area covered by the
construction is in accordance with the approved plans. It is also
noted that the actual set back on the southern and western sides
could not be measured as the exact boundary could not be
ascertained at the site. The learned Judge as such noted that
though the measurement of the set back could not be taken
nevertheless, the report dated 29.01.2011 shows that the area
covered by the suit construction is in accordance with the
approved plans. The learned Judge also noted that the judgment
in the case of Fatima ( supra ) is not applicable to the facts of the
present case. The learned Judge also noted that the respondent
no.1 have not established as to what injuries would be caused to
them by the suit construction and accordingly, dismissed the
application for temporary injunction.
13. In the appeal preferred by the respondent no.1, the:16:
learned Appellate Court while disposing of M.C.A. No. 116/12 by
judgment dated 30.01.2013 has noted that there is no specific
dispute of the fact that plots A and B came to be surveyed under
No. 416/6 and plot C came to be surveyed under No. 416/7 of
Village Calapur. The learned Judge also noted that the access of
2.5 metres width reserved on the northern side has not been
excluded from survey no.416/6 and as such, the area available for
construction is restricted to 344 square metres as claimed by the
respondent no.1. The learned Judge further noted that the survey
records are not documents of title and the vendors to the sale
deed are entitled to transfer only an area which they owned and
possessed. The learned Judge also noted that the technical
permission was obtained based on the sale deed as well as the
deed of rectification and that as per the technical clearance orders
dated 12.04.2011 and 11.10.2011 obtained by the petitioners,
they were required to obtain a conversion sanad under the Goa
Land Revenue Code, 1968 which they have not obtained. But
however, the learned Judge has noted that such conversion sanad
dated 31.07.2012 has been produced in the Trial Court along with
the additional written arguments. The learned Judge also noted
that the application for temporary injunction is not hit by delay.
The learned judge further found that the revised proposal for
construction by the petitioners is pending with the respondent:17:
no.2. The learned Judge noted that the inspection report of Mr.
Bhobe dated 8.11.2011 supports the contention of the respondent
no.1 that the construction undertaken by the petitioners is not in
conformity with the approved plan. The learned Judge however
noted that the joint site inspection report submitted by the Town
and Country Planning Authority is not sufficient to rebut the report
of Mr. Bhobe. The learned Judge also noted that the construction
licence has been obtained without verifying the actual boundaries
at the site. The learned Judge also found that the licence
produced by the petitioners dated 03.04.1998 in respect of the
service workshop was issued on the assumption that the area was
406 square metres. The learned Judge as such found that prima
facie set backs have not been maintained. The learned Judge
further noted that the Regulations of 2010 does not at all come to
the aid of the petitioners since the petitioners had knowingly
obtained the permissions from the concerned authorities on the
basis of a deed of rectification which was executed by them on the
basis of an area shown in the survey records without verifying the
actual area available at loco and consequently found that the
respondent no.1 has made out a prima facie case. The learned
Judge further found that allowing such construction would cause
injury to the respondent no.1. The learned Judge as such noted
that the learned Trial Court had failed to appreciate the case of the:18:
respondent no.1 in right prescriptive and without noting that the
set back could not be verified by the Town Planner and that the
learned Judge has erred in holding that the respondent no.1 has
not pleaded and established the nature of injuries caused to him
due to the said construction. The Appellate Court also found that
the Trial Court has erroneously found that new construction was
already in existence in survey No. 416/6 on the basis of the
construction licence dated 03.04.1998 and consequently, allowed
the appeal and granted an injunction.
14. On perusal of the judgment of the learned Lower
Appellate Court, it is evident that the learned Judge has reappreciated
the evidence on record to come to the conclusion that
the respondent no.1 had made out a prima faice case with regard
to the subject construction. On going through the plan attached to
the consent decree, I find that plots A, B and C are shown to have
an area of 190 square metres each. It is not disputed that plot C
belongs to the respondent no.1 whereas the plots A and B were
sold to the petitioners herein. The survey records in respect of the
property surveyed under No. 416/7 show the area therein as 212
square metres. Prima facie, the said area is not in accordance
with the consent decree which otherwise discloses to be an area of
190 square metres only. The respondent no.1 has failed to explain:19:
as to how the area exceeded as shown in the consent decree. The
survey records in respect of the property surveyed under no.
416/6 show the area therein to be 406 square metres. The survey
records have been duly promulgated. Apart from that, the Trial
Court has found that the area of the petitioners prima facie should
be considered to be 380 square metres as shown in the consent
decree. On perusal of the licence granted by the respondent no.2
dated 10.08.2011, it clearly states that the licence is for a
proposed extension to the existing ground floor of the first and
second floor as per the plans approved by the Dy. Town Planner
vide N.O.C. dated 21.07.2011. This clearly prima facie shows that
the construction being put up by the petitioners is only an
extension to the existing ground floor plinth area.
15. Mr. Padiyar, learned counsel appearing for the
petitioners has in fact stated out that the petitioners have not
extended the existing plinth area of the original service workshop
which was approved way back in the year 1998. In such
circumstances, the learned Trial Judge has noted that in the joint
site inspection report the area covered by the construction is in
accordance with the approved plans. This shows that from the year
1998 the set back from the southern boundary of the property
surveyed under no. 416/6 is the same. In such circumstances, the:20:
learned Lower Appellate Court was not justified to embark into the
re-appreciation of evidence to come to any contrary findings on
this count. Even on perusal of the inspection report of Mr. Bhobe,
he has clearly stated that an area of 26 square metres has been
excluded from the property surveyed under no. 416/7 and an area
of 22 square metres has been excluded from the property
surveyed under no.416/6 at the time of the actual Commissioner's
report prepared at the time of the compromise decree. It is further
pointed out that such strips are with the holders of the land
surveyed under nos. 416/11 and 416/2. These findings of the
report of Mr. Bhobe, prima facie are not in accordance with the
area as shown in the survey records as pointed out herein above.
On going through the area statement in the approved plan the net
effective area of the plot is shown as 310.40 square metres. It
further discloses that the existing covered area is 85.57 square
metres and the proposed covered area is 31.59 square metres. It
further shows that the total covered area is 117.16 square metres
and as such the coverage consumed is 37.48 square metres. It
also shows that the permissible coverage is 124.16 square metres
and the permissible F.A.R. ( 80%) works out to 248.32 square
metres. It also discloses that the total floor area ( existing plus
proposed) worked out to 199.36 square metres and the F.A.R.
consumed is 64.23 percent. Taking the said noting into:21:
consideration the findings of the learned Lower Appellate Court
that the construction which being put up by the petitioners was
not an extension of the existing structure is not in accordance with
the material on record. At this prima facie stage, the notings in
the said findings would have to be accepted. As such, the
construction being put up by the petitioners does not totally
consume the FAR nor the coverable area as permitted by the
statutory authorities. In such circumstances, the findings of the
learned Lower Appellate Court that proper set backs have not been
maintained on the southern side, prima facie, does not appear to
be correct. No doubt, in case the deviations carried out by the
petitioners do not meet the statutory requirements, the authorities
will not sanction the revised plans nor grant any occupancy
certificate to the petitioners. The authorities will also ensures that
the disputed construction is as per the statutory Regulations and
the set backs are clearly available at the site before grating the
completion certificate. Besides that the learned Trial Judge has
rightly noted that it is not the case of the respondent no.1 that the
petitioners have carried out any encroachment into their property.
Apart from that, there is no irreparable injury prima facie
established by the respondent no.1 which would entitle the
respondent no.1 for an injunction at this stage. No doubt, any
construction activity hereafter put up by the petitioners will be:22:
subject to the result of the suit and the petitioners shall not be
entitled to claim any equities on account of such development
carried out in the property surveyed under No. 416/6.
16. The learned Trial Judge has rightly noted that the
licences have been obtained from the statutory authorities as well
as from the Town and Country Planning Authority. The conversion
sanad has also been produced by the petitioners. The learned Trial
Judge has also noted that the joint inspection report clearly
discloses that the coverage of the construction is in accordance
with the sanctioned plans. The original licence was obtained for the
ground floor way back in the year 1998. In case of any
misrepresentation in the approved plans by the petitioners, the
statutory authorities can definitely examine this aspect while
examining the revision of the plans and granting of the occupancy
certificate. At this stage, taking note of the area as shown in the
survey records, I find that the learned Lower Appellate Court was
not justified to come to the conclusion that the respondent no.1
has established that there is discrepancy in the area as shown by
the petitioners while obtaining the permission for the construction
in dispute. The learned Trial Judge as such was justified to rely
upon the joint site inspection report prepared by the statutory
authorities to come to the conclusion that prima facie the:23:
respondent no.1 has failed to prove his contention that the
construction put up by the petitioners is illegal. It is also to be
noted that even the Dy. Director of Panchayat by judgment dated
14.06.2013 directed the local panchayat to grant technical
clearance in respect of construction licence to the petitioners
herein in terms of the technical report dated 11.10.2011. Apart
from that, admittedly, the construction has already reached the
second floor level and the development by the petitioners is prima
facie in accordance with the statutory licences. When the Court
grants a relief in such circumstances, equity demand that such
reliefs are granted by putting the parties on terms to avoid
multiplicity of proceedings and do complete justice at the time of
the final disposal of the suit on merits. As such in case the Court
is inclined to grant a relief to stop an ongoing development which
reached the second floor level, the party seeking such relief has to
be put on terms to ensure that in case he does not succeed in the
suit the aggrieved party would be adequately compensated. The
learned Lower Appellate Court has not even examined this aspect
whilst passing the impugned order.
17. The Apex Court in the judgment reported in (2013) 9
SCC 221 in the case of Mohd. Mehtab Khan and others V/s
Khushnuma Ibrahim Khan and others has observed at paras:24:
20 to 22 thus :
“20. In a situation where the learned trial
court on a consideration of the respective
cases of the parties and the documents
laid before it was of the view that the
entitlement of the plaintiffs to an order of
interim mandatory injunction was in
serious doubt, the appellate court could
not have interfered with the exercise of
discretion by the learned trial Judge
unless such exercise was found to be
palpably incorrect or untenable. The
reasons that weighed with the learned
trial Judge, as already noticed, according
to us, do not indicate that the view taken
is not a possible view. The appellate
court, therefore, should not have
substituted its views in the matter merely
on the ground that in its opinion the facts
of the case call for a different conclusion.
Such an exercise is not the correct
parameter for exercise of jurisdiction
while hearing an appeal against a
discretionary order. While we must not be
understood to have said that the
appellate court was wrong in its
conclusions what is sought to be
emphasised is that as long as the view of
the trial court was a possible view the
appellate court should not have interfered:25:
with the same following the virtually
settled principles of law in this regard as
laid down by this Court in Wander Ltd. v.
Antox India (P) Ltd.
21. Para 14 of the aforesaid judgment
which is extracted below would amply
sum up the situation: (Wander Ltd. case,
SCC p. 533)
“14. The appeals before the Division
Bench were against the exercise of
discretion by the Single Judge. In such
appeals, the appellate court will not
interfere with the exercise of discretion of
the court of first instance and substitute
its own discretion except where the
discretion has been shown to have been
exercised arbitrarily, or capriciously or
perversely or where the court had ignored
the settled principles of law regulating
grant or refusal of interlocutory
injunctions. An appeal against exercise of
discretion is said to be an appeal on
principle. Appellate court will not reassess
the material and seek to reach a
conclusion different from the one reached
by the court below if the one reached by
that court was reasonably possible on the
material. The appellate court would
normally not be justified in interfering
with the exercise of discretion under:26:
appeal solely on the ground that if it had
considered the matter at the trial stage it
would have come to a contrary
conclusion. If the discretion has been
exercised by the trial court reasonably
and in a judicial manner the fact that the
appellate court would have taken a
different view may not justify interference
with the trial court’s exercise of
discretion. After referring to these
principles Gajendragadkar, J. in Printers
(Mysore) (P) Ltd. v. Pothan Joseph: (AIR
p. 1159, para 9)
‘9. … These principles are well
established; but, as has been observed by
Viscount Simon in Osenton (Charles) &
Co. v. Johnston: (AC p. 138)
“… The law as to the reversal by a Court
of Appeal of an order made by [a] Judge
below in the exercise of his discretion is
well established, and any difficulty that
arises is due only to the application of
well-settled principles in an individual
case.”’
The appellate judgment does not seem to
defer to this principle.”
22. Though the above discussions would
lead us to the conclusion that the learned
Appellate Bench of the High Court was not:27:
correct in interfering with the order
passed by the learned trial Judge we wish
to make it clear that our aforesaid
conclusion is not an expression of our
opinion on the merits of the controversy
between the parties. Our disagreement
with the view of the Division Bench is
purely on the ground that the manner of
exercise of the appellate power is not
consistent with the law laid down by this
Court in Wander Ltd. Accordingly, we set
aside the order dated 9-10-2012 passed
by the Appellate Bench of the Bombay
High Court and while restoring the order
dated 13-4-2012 of the learned trial
Judge we request the learned trial Judge,
or such other court to which the case
may, in the meantime, have been
transferred to dispose of the main suit as
expeditiously as its calendar would permit
with the expectation that the same will be
possible within a period of six months
from the date of receipt of this order. The
appeal shall stand disposed of in terms of
the above.”:28:
18. Taking note of the observations of the Apex Court, as
the learned Trial Jude upon consideration of the respective cases of
the parties and the documents laid before the Court was of the
view that the entitlement of the plaintiffs to an order of injunction
was seriously doubtful, the Appellate Court could not have
interfered with the exercise of discretion by the Trial Judge unless
such exercise was found to be palpably incorrect or untenable.
The weightage given by the learned Trial Judge while refusing a
relief to the respondent no.1 does not indicate that the view taken
is not a possible view. In the present case, as pointed out herein
above, the learned Trial Judge has relied upon the public
documents including the survey records and the permissions
granted by by authorities to come to the conclusion that the
respondent no.1 has not made out a prima facie case. The learned
Lower Appellate Court has re-appreciated the evidence and relied
on the affidavits and reports which have to be otherwise proved in
the trial to come to the conclusion that there was a discrepancy in
the area which finding is contrary to the survey records as well as
the other material produced by the parties as pointed herein
above. Apart from that, it is not the case of the respondent no.1
that there is an encroachment in his property when in fact even his
area is more than the area as shown in the compromise decree.
In the face of such material on record, the learned Lower Appellate:29:
Court was not justified to hold that the learned Trial Judge has not
exercised the discretion in refusing the application for temporary
injunction in accordance with law. No doubt, as pointed out herein
above, any construction activities carried out by the petitioners will
be subject to the result of the suit filed by the respondent no.1.
19. The reliance placed by the learned counsel appearing
for the respondent no.1 in the case of Fatima ( supra ) is not
applicable to the facts of the present case. The fact therein
discloses that the plaintiffs therein inter-alia contend that she had
a right of access through the plot belonging to the defendants who
was putting up a construction in his property which would affect
such right of access of the plaintiffs therein. However, in the
present case the respondent no.1 does not claim that he has any
right of access through the property purchased by the petitioners
surveyed under No. 416/6. Apart from that, the sanctioned licence
also do not disclose that the petitioners have consumed the total
F.A.R. nor the total allowed coverage area. The main dispute
between the parties with regard to the alleged access reserved on
the northern boundary of the property surveyed under no. 416/6
which prima facie has not been affected. Merely leaving an access
does not in any case divest the title of the owner over such area.
Prima facie, there is no material produced by the respondent no.1:30:
to show that there was any transfer of such reserved area in
favour of the third party. Apart from that, such alleged access is
not depicted in the survey records. The contention of the learned
counsel appearing for the petitioners that this Court should not
interfere in a writ jurisdiction on the findings of the learned Lower
Appellate Court cannot be accepted in the facts and circumstances
of the present case. As pointed out herein above, the learned
Lower Appellate Court has erroneously exercised its jurisdiction in
interfering with the discretion exercised by the learned Trial Judge
while refusing the application for temporary injunction filed by the
respondent no.1. In such circumstances, the said contention of
the learned counsel appearing for the respondent no.1 cannot be
accepted.
20. The learned Single Judge of this Court in the judgment
passed in Appeal From Order No. 45 of 2012 dated
10.05.2013 in the case of Mrs. Ema Moraes V/s The State of
Goa and others, has observed at para 4 thus :
“4. Perusal of the plaint shows that it does
not contain any averment to support the
prayer of declaration of easementary right
of light and air. There is not even an
averment that such a right has been
enjoyed by them at any point of time, much:31:
less the manner of such enjoyment. The
plaintiffs do not give description of their
house in order to indicate the enjoyment
of the easementary right and how
the same has been obstructed by any
act of defendant no.5. The entire plaint is
seen to be devoted to the alleged violations
by defendant no.5 of the provisions of
Planning and Development Authorities
Regulations, 2000 and Margao Municipal
Building Bye laws, 1979 . Therefore, on a
prima facie view of the matter there can be
no objection to the construction carried out
by defendant no.5 based on any
easementary right of the plaintiffs.
21. In view of the discussions supra, I find that the
learned Lower Appellate Court was not justified to interfere with
the discretion exercised by the Trial Judge. In any event, when the
party opts to file a suit, a permanent injunction can be granted in
terms of Section 38 of the Specific Relief Act, 1963 which clearly
provides that the Court may grant an injunction to the plaintiff to
prevent a breach of an obligation existing in his favour whether
expressly or by implication subject to other provisions contained in
Chapter II. It further contemplates that the act of the defendant
should invade or threaten to invade the plaintiff's right to the
enjoyment of the property and the cases wherein such injunction:32:
may be granted are clearly specified. In such circumstances, in
the present case, the learned Trial Judge has rightly noted that the
respondent no.1 has failed to prove the actual injury on account of
development being carried out by the petitioners of putting up two
floors on the existing ground floor structure in the property
admittedly belonging to the petitioners. Apart from that, prima
facie the respondent no.1 has failed to establish that the licence
obtained by the petitioners is not in accordance with the statutory
regulations. The dispute with regard to the area as claimed by the
respondent no.1 is to be adjudicated on its own merits at the time
of the hearing of the suit. No doubt, as pointed out herein above,
any construction activity carried out by the petitioners will be
subject to the result of the suit. The statutory authorities would
be at liberty to take action against the petitioners in case of any
infringement of the construction licence as well as any
misrepresentation by the petitioners while obtaining such licence.
22. In view of the above, the impugned judgment passed
by the learned Lower Appellate Court dated 30.01.2013 cannot be
sustained and the same is quashed and set aside. Any
development activity carried out by the petitioners in the disputed
property surveyed under no.416/6 of Calapur village shall be
subject to the result of the suit filed by the respondent no.1.:33:
Needless to say that the findings arrived at herein are only prima
facie findings and shall not influence the Court while deciding the
suit on its own merits. Rule is made absolute in above terms. The
petition stands disposed of accordingly.
F. M. REIS, J
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