Public Interest Litigation Writ Petition Nos. 15 and 16 of 2014. Case: Trajano D'Mello and Ors. Vs State of Goa and Ors.. High Court of Bombay (India)
| Case Number | Public Interest Litigation Writ Petition Nos. 15 and 16 of 2014 |
| Counsel | For Appellant: Rohit Bras De Sa, Advocate and For Respondents: P. Bhandari, Addl. Govt. Advocate |
| Judges | F. M. Reis and K. L. Wadane, JJ. |
| Issue | Constitution of India - Articles 14, 21, 226, 300A, 32 |
| Judgement Date | May 06, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
F. M. Reis, J.
-
Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
-
Rule. Heard forthwith with the consent of the learned counsel.
-
The learned counsel appearing for the respective respondents waive service.
-
At the request of the learned Counsel appearing for the parties and by consent, both the petitions were taken up together for final disposal.
-
It is the case of the petitioners that the respondent Nos. 4 and 5, in violation of the various provisions of the Code of Comunidades, namely Articles 342, 326, 329, 334, 334-A have usurped the land belonging to the Comunidade of Serula without following the due process of law, nor the mandatory provisions as contemplated in the said Code. It is the case of the petitioners that they came to know about the usurpation of the land by the respondent No. 4 and the respondent No. 5 in survey Nos. 376/6, 379, 379/1, 380/1, and 389/1 of the Comunidade, which according to the petitioners, is encouraged and supported by the Authorities as well as the State Government. In PIL Writ Petition 15/2014, the petitioners contend that the respondent No. 4 had usurped and illegally taken possession of the Comunidade land by initially putting up a shed under the umbrella of a Resolution passed by the Comunidade, permitting an area of 9 X 11 Sq. mtrs in survey No. 376/6 for an annual rent of Rs. 600/- and the respondent No. 4, has leased an area of 111.97 sq. mts to use and utilise the property for an annual rent of Rs. 75/- as per the Special General Body Meeting dated 22.2.2004. It is further their case that taking advantage of the judicial proceedings filed in a civil suit and an injunction in operation, the respondent No. 4 (in PIL WP No. 15/2014) had further encroached in an area of 599 sq. mtrs. The petitioners further state that the Respondents/State Authorities have not framed any guidelines or policy in the matter of regularisation of any encroachment in the Comunidade land and in the absence of such guidelines, an application for regularisation by the respondent No. 4 was entertained by the respondents/State Authorities. It is further their case that the respondents/State Authorities are favouring the said respondents No. 4 and 5, as the respondent No. 4 occupies high Office. It is further their case that the entire process of regularisation of the illegal encroachments is illegal and that such an application filed by the respondent No. 4 in the year 2001 is patently arbitrary and in the absence of the policy being framed by the Government, does not have any legal effect. It is further the case of the petitioners that in the application of the respondent No. 4 for regularisation, it is briefly stated that the area of encroachment is 165 + 162 +327 sq. mts., from survey No. 379 of village Socorro. It is further the contention of the petitioners that the respondent No. 5 has also illegally usurped the land from survey No. 376/6 belonging to the Comunidade of Serula. It is the contention of the petitioners that an illegal construction was put up by the respondent No. 5 admeasuring 10.20 mts X 11.20 mts and height approximately 3 mts. The respondent Nos. 4 and 5, without following due procedure and the relevant provisions of Code of Communidades, illegally grabbed the above mentioned lands. It is further the case of the petitioners that respondent No. 4 applied for regularisation with the respondents/State Authorities and that he is now seeking rehabilitation in the property Survey No. 379/1. It is also their case that they came to know about the construction licence issued in the name of the Comunidade of Serula dated 13.2.2014 to carry out construction of residential/commercial buildings in the property surveyed under No. 379/1 and an amount of Rs. 56,700/- was paid in the name of the Comunidade on 13.2.2014 by the attorney of the Comunidade. It is further their case that no property of the Comunidade can be brought under construction unless and until a General Body Resolution is passed and thereafter due publication of the same in the official gazette, as well as in the local news papers and after securing government approvals. The estimated costs of the construction of the building was also required to be approved by the General Body of the Components of the Comunidade and the work of carrying out construction was required to be tendered by following the due process of tendering in terms of the Code. It is further their case that there is no approval granted by the Revenue Department and further more, no estimates have been approved by the General Body of the Components of the Comunidade. It is further their case that no tenders have been floated for the purpose of carrying out construction in the subject property of Comunidade and, as such, the act of the Temporary Managing Committee is in defiance of the interim orders passed by this Court in Writ Petition No. 17/2013. It is further the case of the petitioners that they also learnt that the Town and Country Planning clearance is taken for project of 11 shops, 10 flats and one office, claiming to be rehabilitation project in survey No. 379/1 for the encroachment of the Comunidade land. It is further their case that the respondents No. 4 and 5 are seeking to protect their encroachments in survey No. 376/6 by getting it regularised and at the same time are seeking to be rehabilitated in survey No. 379/1 of the same village. It is also their case that the respondents No. 4 and 5 are, in fact, financing the said project and that the said respondents, in collusion with the former office bearers of the Temporary Managing Committee of the Comunidade of Serula, have played a fraud on the Authorities, as well as the Components of the Comunidade. It is further their case that the respondent Nos. 4 and 5 are sought to be rehabilitated in the said project and that the name of the respondent No. 4 is shown as being entitled to shop "J" and the name of the respondent No. 5 is shown as being entitled to shop "K". Thus, the sum and substance of the allegations of the petitioners is that the respondent Nos. 4 and 5, in collusion with the concerned authorities, have grabbed the valuable land of the Comunidade, without following due process of law and, as such, the petitioners have challenged the relevant order/letter dated 14.9.2012 and 15.10.2012, regularising/allotment/regularisation of the construction, together with other reliefs, which read thus:
"A. That this Hon'ble Court may be pleased to issue a Declaratory Writ or any other, Order or Declaration that an application for regularization filed by Respondent No. 4 in the absence of framing proper policy/guidelines in respect of regularization of an encroachment or rehabilitation without carrying out an amendment to Article 380 of the Code of Comunidade is unconstitutional and ultra vires the provisions of the Code of Comunidade, and further it violates Article 14 and 21 of the Constitution of India.
-
For a Writ of Mandamus or any other Writ Order or Direction directing the State Government to frame policy/guidelines for the purpose of regularization of illegal encroachment in comunidade lands and further on the policy/guidelines in respect to rehabilitation and further if need arises to carry out an amendment to Article 380 of the Code of Comunidade to permit regularization of encroachment and/or rehabilitation of the encroachers under the Code of Comunidade.
-
For a Writ of mandamus or any other Writ, Order or direction in the nature of mandamus directing the Administrator of Comunidades to immediately seize and attach the flat, office, shops in survey No. 379/1, since the provisions of Article 334-A for allotment/auction flats, offices, shops have not been followed under the Code of Comunidade.
-
For a Writ of mandamus of any other Writ, Order or Direction directing the Respondent State Authorities more particular the Administrator of Comunidades to immediately seize the flats, shops and godown in survey No. 379/1.
-
For a Declaratory Writ or any other Declaratory Order under Article 226 of the Constitution of India where the allotment of flats, offices and shops for the purpose of rehabilitation without following Article 334-A of the Code of Comunidades and is violative of the Constitution of India, more particularly Article 14 and 21 of the Constitution of India and violative of the provision of Article 334-A of the Code of Comunidade.
-
For a Writ of mandamus or any other Writ, Order or Direction in the nature of mandamus to the Respondent State Authorities to immediately withdraw the letter dated 14.9.2012 and the letter dated 15.10.2012, whereby plots have been handed over to Respondent Nos. 4 and 5 without following the procedure of auction as the same is violation of the provisions of the Code of Comunidades and violative of the Constitution of India, more particularly, Article 14 and 21 of the Constitution of India,
-
For a Writ of Certiorari or any other Writ, Order or Direction calling for the proceedings from the Office of the Administrator and after considering it legality, proprietary and correctness of the letter dated 14.9.2012 and the letter dated 15.10.2012, this Hon'ble Court may be pleased to quash and set aside the said letters as unconstitutional and violative of the Code of Comunidade.
-
For a Writ of mandamus or any other Writ, Order or Direction directing the Respondent State Authorities to immediately conduct an investigation into the mismanagement and maladministration by the Administrator of Comunidade and the managing Committee of the Comunidade of Serula, more particularly in respect of survey Nos. 376/6, 379, 379/1, 380/1, 389/1(part) of Comunidade of Serula.
-
For a Writ of mandamus or any other Writ, Order or Direction in the nature of Mandamus directing the Respondent State Authorities to immediately initiate proceedings under Article 371 of the Code of...
-
To continue reading
Request your trial