Partly allowed

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

Bombay HC5 Oct 2012PILWP/24/2012

Case brief

AI extract

What is this about?

The Court stayed this PIL for four weeks to allow the petitioner appropriate steps in a parallel regular civil suit. The Court declined to pass interim orders but directed authorities to consider the petitioner's representation regarding ancient monuments. Both parties gave undertakings regarding hill cutting.

What did the court decide?

Directed respondents to consider the representation to declare monoliths as ancient monuments; stayed the order for four weeks; interim orders to be vacated thereafter; parties to maintain status quo

The United Goan'S Shanti Concern, through Its Secretary… — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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PIL WRIT PETITION NO.24 OF 2012

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The United Goan's Shanti Concern ….Petitioner V/s. State of Goa & 9 others ….Respondents

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Mr. A.F. Diniz, Advocate for the Petitioner.

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Mr.D. Lawande, Government Advocate for Respondent Nos.1 to 7. Mr.A.D. Bhobe, Advocate for Respondent Nos.9 and 10.

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Mrs.A. Agni, Advocate for the Intervenor.

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CORAM : S.J. VAZIFDAR AND

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U.V. BAKRE, JJ. DATE : 05TH OCTOBER, 2012.

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P.C. :-

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Rule. Rule is made returnable and heard finally.

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Respondent Nos.2 to 8 are the Director of Archives, Archaeology and Museum, Chief Conservator of Forests and Chief Town Planner, Deputy Town Planner (Ponda), The Collector (North), The Deputy Collector (Ponda) and Village Panchayat, Bandora respectively. Respondent Nos.9 and 10 are one Prakash U. Naik and Anuradha P. Naik, the principle parties who would be affected by any adverse orders in this writ petition.

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The petitioner has filed this petition purportedly as a Public Interest Litigation seeking a writ of mandamus directing respondent No.1 to follow the procedure prescribed in terms of section 15 of the Goa, Daman and Diu Ancient Monuments & Archaelogical Sites & Remains Act, 1978. The petitioner has by Miscellaneous Civil Application No.897 of 2012 inter-alia sought to substitute this prayer with a prayer for a writ of mandamus directing respondent Nos.1 and 2 to consider the petitioner's letter dated 18.6.2012 as a representation to declare the monoliths, relics and carved stones located in the property as ancient monuments under the said Act and for an order restraining any development on the property till the application is decided. By this application for amendment, prayer (B), which was for a writ of mandamus directing respondent No.1 to follow the procedure prescribed by section 12 of the Act, was sought to be deleted. The amendment also sought to bring on record the order of the learned single Judge in an Appeal from Order in a litigation between respondent Nos.9 and 10 and other parties, to which we will refer later.

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The petitioner has also sought a writ of mandamus to set aside an NOC for conversion of the land, a provisional NOC for subdividing the property dated 25.5.2011 and directing respondent Nos.1 and 3 to 8 to hear the petitioner's objections before grant of any

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conversion sanad or NOC for sub-division of the property. Further the petitioner has sought a writ of mandamus directing the authorities to initiate action against respondent Nos.9 and 10 for the alleged violation of the provisions of the Town and Country Planning Act, 1974 and restraining respondent Nos.9 and 10 from developing the property pursuant to the said NOC, creating any third party rights in the property and converting the place of worship in terms of section 3 of the Places of Worship (Special Provisions) Act, 1991.

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Miscellaneous Civil Application No.897 of 2012 was allowed. Considering the order we intend passing, we did not think it necessary to afford the respondents an opportunity of filing a reply to the amendments.

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We will refer to Miscellaneous Civil Application No.900 of 2012, taken out by a third party later.

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6. During the hearing, Mr.Diniz, the learned counsel appearing on behalf of the petitioner restricted the reliefs to an order in terms of the amended prayer (a) and an order restraining respondent Nos.9 and 10 from the hill cutting beyond the permission granted by the authorities.

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7. Ordinarily there would be no difficulty in granting these reliefs unconditionally and having left the matter at that. However,

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after hearing Mr.Bhobe, the learned counsel appearing on behalf of respondent Nos.9 and 10, it is necessary to preface the operative part of the order with certain comments and clarifications. Mr.Bhobe submitted that this is not a genuine Public Interest Litigation. The petitioners, according to him, have been put up by the applicants in the said Miscellaneous Civil application No.900 of 2012 seeking to intervene. The Intervenors had filed Regular Civil Suit inter-alia against respondent Nos.1, 2, 4, 5, 10 and 11. Mr.Bhobe submitted that the entire petition is a copy of the proceedings in the said suit filed by the intervenors. He submitted that the present writ petition was filed at the instance of the intervenors, who had not only failed to get any interim reliefs in the said suit against respondent Nos.9 and 10, but had in fact been restrained by the trial Court from interfering with their possession.

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We will refrain from making any conclusive comments about the bona-fides of the petitioner. Suffice it to note that in the facts of this case, the petitioner ought to have given notice to the respondents, especially respondent Nos.9 and 10 before making an application for interim reliefs. They ought also to have disclosed the order and judgment of the trial Court, which has dealt with several issues, which are common to this writ petition. They ought to have done so despite the fact that they were not parties to the suit. It

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appears obvious that the petitioners were aware of the order of the trial Court in the said suit, for they have referred to the suit in the writ petition. The order of the trial Court dated 22.3.2012 deals with many of the issues raised in this writ petition in considerable detail and we are not at all sure that the Division Bench, to which one of us (U.V. Bakre, J., was a party) would have passed an ad interim order without which had the attention of the Court been drawn to the said order. The order was passed on 22.3.2012 and the writ petition was filed only on 7.8.2012. The circulation of the writ petition was sought on 9/10^th September, 2012 and the ad-interim order was granted on 12.9.2012, restraining respondent Nos.9 and 10 from altering, damaging and developing the property in pursuance of the NOCs obtained by them.

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We are not dealing with Mr.Bhobe's submission to establish the nexus between the petitioner and the intervenors in view of Mr.Diniz having pressed only for the restricted reliefs. Mr.Diniz submitted that he would be satisfied with an order in terms of the amendment – substituted prayer (a) viz. directing respondent Nos.1 and 2 to consider the petitioner's representation to declare the monoliths, relics and carved stones located in the property as ancient monuments under the said Act. We are inclined to grant such relief but with a caveat. It would be open to respondent nos,1 and 2

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while considering the application to decide whether or not they ought to consider the same in view of the regular civil suit filed by the intervenors and the orders and the judgments passed therein including the order of this court dismissing the Appeal from Order filed by the intervenors. Respondent Nos.1 and 2 shall be at liberty to expedite their decision on any grounds they think fit including in view of the nature of the dispute and the subject matter thereof. Mr. Diniz stated that till respondents No.1 and 2 take a decision as indicated above, the respondents ought to be directed to maintain status quo in respect of the other monoliths, relics and carved stones, in respect whereof the learned Judge has not granted adequate protection in the Appeal from Order.

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As is evident from the judgment of the trial court in the regular civil suit and the judgment of the learned Single Judge of this Court in the Appeal from Order, there are seriously disputed questions of fact which cannot be entertained in a writ petition. Indeed, the findings in these judgments are against the petitioner's case. We appreciate that the petitioner was not a party to the said suit and the Appeal from Order. However, it is a moot point also whether this is a collusive petition filed at the instance of the plaintiffs in the regular civil suit.

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In the circumstances, we are not inclined to grant any such

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reliefs. More important is the fact that after having sought several reliefs in the writ petition, when the matter comes up for hearing after notice to all the respondents, the petitioner does not even press the other reliefs. Despite the same, with a view not to leave any room for grievance, we intend staying this order for a period of four weeks to enable the petitioner to take appropriate steps and/or file appropriate proceedings in respect of its alleged grievances.

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The other reliefs sought by Mr.Diniz was an undertaking from respondent Nos.9 and 10 not to indulge in hill cutting beyond the permission received by them.

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Mr.Bhobe stated that respondent Nos.9 and 10 have not done so and will not violate the terms of the permission. Mr.Lavande, the learned counsel appearing on behalf of respondent Nos.1 to 7 stated that if in fact respondent Nos.9 and 10 do so, the authorities will take action in that regard. The statements are accepted.

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The writ petition is accordingly disposed of in the above terms. Interim orders shall stand vacated after four week from today.

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(U.V. BAKRE J.) (S.J. VAZIFDAR, J.)

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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