Dismissed

Nabi Saab Attar (Dec) Thr. His Lrs., v. State of Goa, Thr. Chief Secretary (Deleted as Per Order Dtd. 15.6.2021) and 3 Ors.

Bombay HC27 Jul 2021WP/1114/2019

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa dismissed four writ petitions challenging demolition orders. The court held that the petitioner failed to produce documentary evidence supporting their claim of landlord consent. Consequently, the demolition orders passed by the Commissioner and upheld by the Minister were upheld as valid and justified.

What did the court decide?

Demolition orders upheld but enforcement stayed for six months subject to filing of undertakings to vacate.

Nabi Saab Attar (Dec) Thr. His Lrs., Vs State of Goa… — Landlord and Tenant | Bombay HC (2021)

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WP 1103-2019 & ORS..DOC

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Suchitra

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IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.1103 OF 2019

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GOPAL KRISHNA BHONGLE …PETTIONER

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Versus STATE OF GOA, THR. CHIEF SECRETARY (DELETED AS PER ORDER DTD. 15.6.2021) AND 3 ORS.

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…RESPONDENTS

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WITH WRIT PETITION NO.1110 OF 2019

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GAFFAR KHAN NASSANGATTI … PETITIONER

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Versus

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STATE OF GOA, THR. CHIEF SECRETARY (DELETED AS PER ORDER DTD. 15.6.2021) AND 3 ORS. … RESPONDENTS

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WITH WRIT PETITION NO.1109 OF 2019

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GEETA VASANT BHANDARI … PETITIONER

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Versus STATE OF GOA, THR. CHIEF SECRETARY (DELETED AS PER ORDER DTD. 15.6.2021) AND 3 ORS. … RESPONDENTS

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WITH

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WRIT PETITION NO.1114 OF 2019

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NABI SAAB ATTAR (DEC) THR. HIS LRS. … PETITIONER

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Page 1 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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Versus

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STATE OF GOA, THR. CHIEF SECRETARY (DELETED AS PER ORDER DTD. 15.6.2021) AND 3 ORS. … RESPONDENTS

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Mr. Sahish Mahambrey, Advocate for the Petitioners. Mr. S. Karpe, Mr. A. Sawant and Mr. A. S. Shirodkar Advocates for Respondent No.2. Mr. S. Padiyar, Advocate for the Respondents No.3 and 4.

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CORAM: M. S. SONAK J. DATED: 27^th July 2021

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P.C.:

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1. Heard Mr. Sahish Mahambrey for the petitioners in all these cases. Mr. S. Karpe appears for the City of Corporation of Panaji (CCP) and Mr. S. Padiyar for respondents no.3 and 4 – original complainants.

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2. In all these petitions, the first ground raised was that the Hon'ble Minister, who is the appellate authority under the provisions of the Goa Municipalities Act, 1968 (said Act) had not made a reasoned order but had dismissed the appeals by a single line order.

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3. Later on, it turned out that the single line order was only the intimation given to the petitioners. The Hon'ble

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Page 2 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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Minister has made a detailed speaking order in each of these cases
which were placed on record. Thereafter, leave was also granted
to the petitioners to amend the petitions to raise grounds in the
context of the detailed speaking order.

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4. Another ground raised in these petitions was that the Hon'ble Minister had not heard the petitioners or their counsel before the appeals came to be dismissed. The CCP, has placed on record the Roznama from which, it is apparent that the opportunity of hearing was not only offered but was availed by the petitioners.

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5. Mr. Mahambrey, accepted that this ground was incorrectly raised and did not press this ground at the stage of final disposal of these petitions.

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6. Mr. Mahambrey however, submitted that the Commissioner of CCP, before making the impugned demolition orders, did not offer any opportunity of hearing. He submits that on this short ground the demolition orders were required to be set aside.

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7. In this case, a show cause notice was issued to the petitioners along with a document of transgression. The

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Page 3 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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petitioners, only contended that the structures referred to in the
document of transgression were old structures which were put in
with the consent of their landlords. Though, the petitioners
claim to have the documents, no such documents were produced.

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8. Upon consideration of the response of the petitioners, the demolition orders came to be passed. According to me, having regard to the defence coupled with the absence of any documents whatsoever to even prima facie support such defence, the demolition orders were not required to be interfered with on the ground that some personal hearing may not have been given by the Commissioner to the petitioners.

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9. The Hon'ble Minister, who heard the appeals once again, offered opportunities to the petitioners to produce some documentary evidence in support of their defence. Despite such opportunities, no documents were forthcoming and therefore, the Hon'ble Minister, dismissed the appeals.

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10. The reasoning of the Hon'ble Minister is to be found in paragraph 5, 6 and 7 which read as follows:

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“5. The Respondent No. 2 and 3 filed their say
supporting the stand taken by Respondent No.1. During
the proceeding of the case no party had produced the

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Page 4 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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documents of ownership in which the suit structure stands,
although it is not relevant. While the Appellant claimed
that the house was constructed by his ancestors with the
consent of the landlord. Still, no such consent was put
forth for consideration.

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6. The appellant claimed that the suit structure is
surveyed in the survey record of the Land Survey
Department. However no such evidence is brought on
record in support of his claim. As regards to the contention
of the Appellant that the said structure was constructed
around 40 years ago by his ancestral, the Respondent No.1
has rightly pointed that the appellant has not substantiated
his stand with any documentary proof, such as permission,
approval or license of construction from the Respondent
No.1 which is mandatory for any construction activity.

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7.It is also the case of the Appellant that he was not
present at the inspection at the time of drawing the
Transgression Report. In reply the Respondent No. 1
argued that the inspection undertaken under provision of
section 269 of the Act dies not provide for the Appellant or
the complainant to be present. The inspection can be
suomoto taken by the Respondent No.1 under provision of
the Act, especially when there is an illegal construction.

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The Hon’ble Supreme Court in case of Punjab State
Electricity Board and anr. V/s Aswani Kumar (2010) 7
SCC 569 has held:

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“The inspection report is a document prepared
in exercise of its official duties by the officers of
the Corporation. Once an act is done in
accordance with law, the presumption is in

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Page 5 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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favour of such act or document and not against
the same. Thus, there was specific onus upon
the consumer to rebut by leading proper and
cogent decadence that the report prepared by
the officers was not correct.”

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The Transgression Report prepared by the Municipal
Engineer is presumed to be true under the Indian Evidence
Act. The report could not be straightway disbelieved unless
and until there was definite and cogent material produced
on record by the Appellant to arrive at such finding. The
Appellant has not produced any such evidence to refute the
contents of transgression Report prepared by the official of
the Respondent No. 01.

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In view of the above findings, the issues raised in the
appeal are void of merit and therefore there is no other
alternative but to reject the appeal and hence the order.”

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11. The petitioners claimed that they had put up these structures with the consent of the landlords. Mr. Padiyar points out that the respondents no.3 and 4 are the landlords and no consent was ever granted. He points out that it is the respondents no.3 and 4 who in fact complained to the Corporation about the unauthorized constructions.

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12. Having regard to the aforesaid circumstances which are common in all these cases, it will not be appropriate to interfere with the orders made by the Hon'ble Minister in these

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Page 6 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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matters. The Hon'ble Minister, has considered all the contentions
of the petitioners and even complied with the principles of
natural justice and fair play. There is no perversity pointed out in
the findings or reasoning adopted by the Hon'ble Minister.

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13. For all the aforesaid reasons these petitions are liable to be dismissed and are hereby dismissed.

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14. At this stage, Mr. Mahambrey, on behalf of the petitioners seeks some indulgence. He submits that on account of the pandemic situation the demolition orders may not be enforced for a period of at least six months. He states that within two weeks from today the petitioners, who are presently the occupying the structures, will file undertakings that they will, on their own, vacate the said structures and even demolish them. He states that the undertakings will make it clear that the petitioners will not part with possession of the structures in favour of any third party.

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15. Mr. Mahambrey, the learned counsel for the petitioners states that the undertakings will also give the names of the persons who are residing in the said structures along with the petitioners.

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Page 7 of 8 27th July 2021

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WP 1103-2019 & ORS..DOC

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16. The copies of such undertakings to be furnished to Mr. Karpe, the learned counsel for the CCP and Mr. Padiyar, the learned counsel for respondents no.3 and 4 within one week from today. Subject to such undertakings being filed within two weeks from today, the CCP is directed not to enforce its demolition orders which have now been upheld, for a period of six months from today. However, if no such undertakings are filed, then, the CCP, can proceed with the demolition in pursuance of its demolition orders.

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17. These petitions are disposed of in the aforesaid terms. There shall be no order as to costs.

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M. S. SONAK, J.

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Page 8 of 8 27th July 2021

Nabi Saab Attar (Dec) Thr. His Lrs., v. State of Goa, Thr. Chief Secretary (Deleted as Per Order Dtd. 15.6.2021) and 3 Ors.

Case brief

What is this about?

What did the court decide?

Nabi Saab Attar (Dec) Thr. His Lrs., v. State of Goa, Thr. Chief Secretary (Deleted as Per Order Dtd. 15.6.2021) and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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