Dismissed

Goa Foundation v. the North Goa Planning and Development Authority, and 8 Ors.

Bombay HC5 Oct 2012MCA/681/2012

Case brief

AI extract

What is this about?

A Misc. Civil Application was filed seeking to modify an order adjourning the final hearing of a writ petition sine die due to the pendency of a Supreme Court appeal. The Bench examined related petitions and concluded that the original adjournment remained valid as the Supreme Court appeal was still pending, dismissing the application.

What did the court decide?

The Misc. Civil Application was dismissed with liberty to apply after the decision of the Supreme Court in the pending appeal.

Goa Foundation Vs the North Goa Planning and… — Writ and Judicial Review | Bombay HC (2012)

¶1

¶2

mca681-12

¶3

IN THE HIGH COURT OF BOMBAY AT GOA

¶4

MISC.CIVIL APPLICATION NO. 681 OF 2012 IN

¶5

WRIT PETITION NO. 333 OF 1993

¶6

GOA FOUNDATION. ….... APPLICANT. VERSUS

¶7

THE NORTH GOA PLANNING AND DEVELOPMENT AUTHROITY, AND 8 ORS.

¶8

….... RESPONDENTS.

¶9

Mrs. Norma Alvares, Advocate for the applicant-petitioner.

¶10

Mr. H. D. Naik, Advocate for respondent No.1.

¶11

Ms. Sapna Mordekar, Addl. Govt. Advocate for respondents Nos.4 and 6.

¶12

Mr. Rafiq Dada, and Mr. F. E. De'Vitre, Senior Advocates with Mr. M. S. Sonak, Ankit Lohia, Rishit Badiani, Misbah Dada, Mr. Jitendra Supekar, Advocates for respondent No.7.

¶13

CORAM :- S.J. VAZIFDAR & U.V. BAKRE, JJ. Date : - 5^th October, 2012.

¶14

P.C.:-

¶15

The petitioner has filed this Misc. Civil Application,

¶16

seeking a fixed date for the final hearing of the writ petition. In effect,

¶17

the petitioner seeks a review of certain orders of this Court, adjourning

¶18

2 mca681-12

¶19

the hearing of the petition sine die, in view of the pendency of an appeal before the Supreme Court. Ms. Alvares, the learned Counsel appearing on behalf of the petitioner, however, relied upon several orders to indicate that there was change of circumstances, warranting a modification of the order.

¶20

We would treat this MCA as an application for review of the earlier orders.

¶21

By an order dated 22nd September, 1998, this petition was listed along with other similar matters. This Court had decided by judgment dated 13th July, 2000 the case of Gulf Goans Hotels Co. Ltd. & anr. vs. Union of India and others reported in 2000 (2) Goa L.T. 187 which raised questions similar to those raised in the present writ petition. A Petition for Special Leave to Appeal against that judgment has been admitted and is pending in the Supreme Court.

¶22

Another similar writ petition being Writ Petition No.25/1998 was, by an order dated 29.1.2002, adjourned sine die. The order records the contentions on behalf of the respondents therein that

¶23

3 mca681-12

¶24

there was an apparent contradiction between the judgment in Gulf Goans Hotels Co. Ltd. & anr (supra) and in Prof. Sergio Carvalho vs. State of Goa and ors., reported in 1989 (1) Goa L.T. 276 and that where there are contradictions in the decisions of this Court and where similar points are pending adjudication before the Supreme Court, this Court ought to stay its hand and await the decision of the Supreme Court. The order does not express any opinion regarding these contentions. It, however, records the concession made by Mrs. Alvares who also appeared in that case that it would be appropriate to have the matter stayed pending the decision of the Supreme Court.

¶25

On 4th February, 2002, Writ Petition No. 24/1992 was adjourned sine die. Mrs. Alvares stated that this was in view of an application filed by the respondents therein for CRZ classifications being under consideration by the authorities. Mrs. Alvares submitted that Writ Petition No.24/1992 was subsequently heard and disposed of by an order and judgment dated 5th June, 2006. This, according to her, constituted a change in circumstances, warranting a modification of the order dated 4th February, 2002 which adjourned the petition sine die only in view of the order passed in Writ Petition No.24/1992. Writ

¶26

4 mca681-12

¶27

Petition No.24/1992 having, thereafter, been heard, there is no warrant according to her to continue the order dated 4th February, 2002 adjourning this petition sine die.

¶28

Firstly the contention that Writ Petition No. 24/1992 was adjourned sine die in view of the application filed by Cidade that its CRZ classification was being reconsidered by the authorities, is not correct. We called for the papers of the proceedings in Writ Petition No. 24/1992. The order dated 4^th February, 2002 does not state any reason for adjourning the writ petition sine die. It adjourned the petition sine die simplicitor. In fact, it is clear that the petition was adjourned sine die due to the pendency of the appeal in the Supreme Court. From a subsequent order dated 8^th June, 2004, it is clear that Writ Petition No. 24/1992 was adjourned sine die in view of the pendency of the appeal before the Supreme Court. The order dated 8^th June, 2004 reads as under :

¶29

“ Learned Counsel for the parties state that the Hon'ble Supreme Court has not decided the Appeal, pending which this matter had been adjourned sine die on the last occasion. Hence, the parties are directed to report to this Court the decision of the

¶30

5 mca681-12

¶31

Hon'ble Supreme Court as and when it is taken.”

¶32

Moreover, it is evident from the order dated 5th June, 2006 in Writ Petition No. 24/1992 that it was not contended that the petition ought not to be heard as it had been adjourned sine die. The issue that arises in these petitions and the appeal before the Supreme Court was not considered by the said judgment in view of the reclassification of the area in question from CRZ-III to CRZ-II. The Division Bench directed

¶33

the concerned respondents therein to make an application with a proposal for construction work permissible in CRZ-II to the GCZMA. It is in these circumstances that the writ petition was disposed of. The judgment does not deal with the issues on merits. The order and judgment dated 5th June, 2006, therefore, does not constitute a change in the circumstances.

¶34

Moreover, it is clear that this writ petition before us has been adjourned and adjourned sine die in view of the pendency of the appeal before the Supreme Court. This is clear from two orders dated 10th November, 2003 and 8th June, 2004 passed in this writ petition. The order dated 10^th November, 2003 recorded the statement that the matter

¶35

6 mca681-12

¶36

before the Supreme Court was still pending. This petition was, therefore, adjourned to the second week of June, 2004, with liberty to the parties to mention the petition if the matter before the Supreme Court was decided in the meantime.

¶37

The order dated 8th June, 2004 is identical to the order of the same date in Writ Petition No. 24/1992. It reads as under :

¶38

" Learned Counsel for the parties state that the Hon'ble Supreme Court has not decided the Appeal, pending which this matter had been adjourned sine die on the last occasion. Hence, the parties are directed to report this Court the decision of the Hon'ble Supreme Court as and when it is taken."

¶39

It is clear, therefore, that this petition has been adjourned and adjourned sine die not merely because Writ Petition No.24/1992 was adjourned sine die, but, independently in view of the appeal pending before the Supreme court. Ms. Alvares fairly admitted that the questions that arise in this petition also arise in the appeal before the Supreme Court. We do not suggest that the writ petition cannot be

¶40

heard finally merely due to the pendency of a similar matter in the Supreme Court. We are not inclined to modify the previous orders

¶41

7 mca681-12

¶42

passed by this Court on the ground of judicial propriety when there are no change in circumstances. The mere fact that by an order dated 1st December, 2004, this Court directed that Writ Petition Nos. 24/1992, 25/1989 and other connected petitions to be listed for final hearing as they had been pending for quite sometime, would not make a difference. The orders do not suggest that the previous orders are to be ignored.

¶43

The Misc. Civil Application is, therefore, dismissed, with liberty to apply after the decision of the Supreme Court in the said appeal.

¶44

S.J. VAZIFDAR, J.

¶45

U.V. BAKRE, J.

¶46

ssm.

Goa Foundation v. the North Goa Planning and Development Authority, and 8 Ors.

Case brief

What is this about?

What did the court decide?

Goa Foundation v. the North Goa Planning and Development Authority, and 8 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Goa Foundation, through Its Secretary Dr. Claude Alvares, Vs Goa State Pollution Control Board through Its Member Secretary

Shri. Gangaram Balchandra Bandodkar Vs the Chief Town Planner Town and Country Planning Department and 5 Ors.

Mr. Timoteo Luis Colaco and 4 Ors., Vs the Director of Education, Govt. of Goa, and 2 Ors.

The United Goan'S Shanti Concern, through Its Secretary Shri. Jude Felix Fernandes Vs State of Goa through Chief Secretary and 9 Ors.

The United Goan'S Shanti Concern, through Its Secretary Shri. Jude Felix Fernandes Vs State of Goa through Chief Secretary and 9 Ors.

Shri Prabhakar Xembu Bhandari Vs the United Goan'S Shanti Concern, through Its Secretary Shri. Jude Felix Fernandes