Fatima w/o Caetano Joao vs Village Panchayat of Merces & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 550

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
F.I. Rebello V.C. Daga, JJ.
Fatima w/o Caetano Joao.... Petitioner.
Versus
Village Panchayat of Merces another.... Respondents.
Writ Petition No. 394 of 1994, decided on 21-7-2000.
Advocates appeared :
S.D. Lotlikar, for petitioner.
J.E. Coelho Pereira, Sr.A., J. Godinho, for respondent No. 2.

Headnote:Section 9 and Municipal Rules/Bye-laws-Suit for injunction-Violation of Municipal rules or bye-laws resulting in invasion of right to light, air, privacy or causing pollution or causing material injury by a neighbour furnishes the plaintiff a cause of action-Civil suit to challenge the invasion of his rights maintainable.-The making of a scheme, or bye-laws or building regulations by Municipal Councilor Corporation is for the planned development of the area. It is for the benefit of the citizens residing in the area. A neighbour who is affected by an illegal construction has an obligation in his favour, based on which, he can maintain a suit for perpetual injunction. The suit at the instance of the neighbour for violation of the Municipal plans or rules or bye-laws resulting in an invasion of right to light, air, privacy or causing pollution, causing material injury would furnish the plaintiff a cause of action and it would be open for him to file a civil suit to challenge the invasion of his right causing material injury. Construction contrary to the building bye-laws would be in violation of a neighbours right to life. Thus the Civil Court has jurisdiction to maintain such a suit.
       Section 9.-See Goa Panchayat Raj Act (14 of 1994).
       Article 226-In proceedings under Article 226 of the Constitution of India, the High Court cannot go into or adjudicate disputed questions of fact.-Civil Suit was filed challenging the illegal construction carried out by the plaintiffs neighbour which had affected the right of way constituting encroachment on easementary rights. Permanent injunction was also sought seeking to restrain the defendant from carrying out any construction activity. The application for temporary injunction was rejected and the appeal was also dismissed. The plaintiff apprehending ultimate dismissal of the suit in view of the various judgments of the High Court holding that men-compliance of Municipal bye-laws did not furnish cause of action for filing suit to adjoining owner, filed writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus to direct the respondent to demolish the illegal construction made by him.
       Held, that a writ petition under Article 226 of Constitution was not proper proceeding for adjudication of such dispute. The disputed question cannot be satisfactorily gone into or adjudicated by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. However, the Civil Court has jurisdiction to maintain a suit complaining of construction contrary to the building bye-laws in violation of a neighbours right to life. As the suit was maintainable, petitioner directed to take necessary steps to canvass his grievance in the said proceedings.

JUDGMENT - V.C. DAGA, J.:---This writ petition under Article 226 of the Constitution of India is the culmination of feud between two neighbours. Much of the ills of life is the result of the people not learning how to live and let live.

Brief narration of history to appreciate rival contentions may be stated as under:

2. The petitioner claims to be the co-owner of the property popularly known as "Buttem Bhat" surveyed under No. 134/4 of Murda Village, Merces, Ilhas, Goa. The said property is a residential house with adjoining open space. The petitioner claims to have acquired right and interest in the said property by virtue of her marriage, that is through her husband who is employed in Middle East.

3. The respondent No. 2 is residing in the property surveyed under No. 135/3, situated on the western side of the petitioner's property, part of which he claims to have purchased. In short, respondent No. 2 owns and possesses the adjoining plots. The petitioner's plot is eastern one and the respondent No. 2's western one.

According to the petitioner, the main entrance of her residential house faces towards the property of respondent No. 2. In order to separate these two properties, there is a compound wall of the petitioner on the western boundary of her plot in which there is gate of about 2 metres in width.

4. The petitioner claims that she and her predecessor-in-title have always been using the open space of the property bearing Survey Nos. 135/3, 135/2 and 135/1 for access to public road leading from Merces to Panaji. The petitioner, in short claims to have acquired easementary right of way through the property surveyed under Nos. 135/1, 135/2 and 135/3 by prescription. According to the petitioner, the said traditional access had a uniform width of about 1.5 metres right from its inception.

5. The petitioner alleges that in the month of November, 1992, respondent No. 2 demolished a portion of his house situated in the property surveyed under No. 135/3 and constructed thereon a new house without obtaining any licence from the Village Panchayat or any clearance for such construction from the Planning and Development Authority which he was bound to obtain before proceeding with the construction activity. According to the petitioner, the old premises occupied by the respondent No. 2 was a part of bigger house, the new construction started by respondent No. 2 was an independent construction occupying much larger area than that of the area occupied by the old structure. Initial, additional area occupied was towards the eastern side; that is, towards the side of the petitioner's property. The petitioner further went on to allege that respondent No. 2 not being satisfied with the illegal construction initially started by him, undertook further construction activity on the southern side of the property surveyed under No. 135/3. He dug up pits in the said property in such a way that it was clear that respondent No. 2 intended to undertake construction activity, so as to cover up and obstruct the right of access in the form of traditional way which the petitioner was enjoying without any obstruction.

6. The petitioner further states that she through her husband lodged a complaint to the Chairman of the Panaji Planning and Development Authority on 4-12-1992 about the said illegal construction commenced by respondent No. 2 and a copy of the said complaint was forwarded to the Collector of North Goa, at Panaji. The Deputy Collector (Development), from the Office of the Collector of North Goa, Panaji, Goa upon receipt of the said complaint forwarded the same to the Block Development Officer under letter dated 9-12-1992 with instruction to conduct inquiry into the complaint made by the petitioner's husband and to instruct the Sarpanch of the Village Panchayat of Merces to take necessary action under section 83 of the Village Panchayat Regulations, 1962 if the construction started by respondent No. 2 in the property surveyed under No. 135/3

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