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IN THE HIGH COURT OF BOMBAY AT GOA
C. V. BHADANG, J.
M/s Boshan Developers Pvt. Ltd. - Petitioner
versus
Communidade of Bordem - Respondents.
CIVIL REVISION APPLICATION NOS.21 and 23 of 2015
Decided on : 16-9-2015
Goa, Daman and Diu Town and Country Planning Act, 1974 - Sections 121 and 129 Immunity from legal proceedings. There a suit cannot be dismissed merely on ground of limitation where question of facts be found involved therein and hence, in such circumstances no relief of immunity from legal proceeding could be granted. Section 121 of the Act may not present much difficulty as the immunity from legal proceedings granted is in respect of any act done in good faith, which would be a question of fact in the context of the plaint allegations. Thus, the plaint cannot be rejected at the threshold as against the defendant No. 4, placing reliance on Section 121 of the said Act. In so far as Section 129 of the said Act is concerned, undoubtedly it attaches finality to the order passed by the planning and development authority under the Act and it is not open to be questioned in any suit or other legal proceedings. In this regard, the trial Court has referred to a decision of the single Judge of the Court in the case of Laxman Barkya Wadkar v. Mumbai Municipal Corporation, (F.A. No. 1635/2010). The trial Court has found that this Court after considering the provisions of Sections 53 and 55 of the Maharashtra Regional and Town Planning Act has held that although on a plain reading of Section 149 of the M.R.T.P. Act, which contains a finality clause, excludes the jurisdiction of the Civil Court, on further analysis, based on the decision of the Hon’ble Apex Court in the case of Dhulabhai v. State of M.P., AIR 1969 SC 78 and Kamla Mills Ltd. v. State of Bombay, 1966 (1) SCR 64, has held that if there are allegations made in the plaint that action under Section 53(1) or 55 of MRTP Act is nullity, then provisions excluding jurisdiction of the Civil Court, will not come in the way of entertaining the suit. It does appear that the trial Court, after considering the decision and analogous provisions contained in Maharashtra Regional and Town and Country Planning Act, 1966, has held that the plaint cannot be rejected at the threshold, placing reliance on Section 149 of the Town and Country Planning Act. At the cost of repetition, it may be stated that the case made out in the plaint is that the defendant No. 1 had no title to transfer the suit property to the defendant No. 2 and when the property is belonging to the plaintiff Comunidade, the entire action was fraudulent. Here again, it may be mentioned that the relief in so far as the revocation of the construction licence or approved plan against the defendant No. 4 is concerned, would be consequential to the declaration as sought in the prayer clause (a) of the plaint. Even in the case of Maya Dessai, (supra), the Court, after referring to the decision in the case of Laxman Barkya Wadkar (supra), has held that if the action is nullity, then bar to the jurisdiction of the Civil Court will not come in the way. In the case of Maya Dessai (supra), the Court, in view of the pleadings that the action is vitiated by fraud and that the officers have acted in bad faith, had held that the matter would be required to be considered on merits and order dismissing the suit, merely relying on the bar, was set aside.
1. Heard. Admit. The learned Counsel for the respondent waives service. Heard finally, by consent.
2. Both these Civil Revision Applications challenge the order dated 18/06/2015 passed by the learned Adhoc District Judge at Mapusa in Civil Suit No.6/2015. By the impugned order, the applications filed by the defendant nos.1 and 2 under Order VII, Rule 11(d) of C.P.C., have been dismissed. As the Civil Revision Applications arise out of the same order and involve common and connected questions of law and fact, they are being disposed of by this common judgment.
3. The first respondent Comunidade of Bordem is the original plaintiff while Shri Shantadurga Sangordekarin Devasthan (Devasthan, for short) and M/s. Boshan Developers Pvt. Ltd, the petitioners in these Revision Applications are respectively the defendant nos.1 and 2 before the Trial Court. Bicholim Municipal Council and the Town and Country Planning Department are respectively the defendant nos.3 and 4 while State of Goa is the original defendant no.5.
4. The Comunidade is seeking a declaration that the Agreement for Sale dated 06/10/2009 executed by the Devasthan in favour of M/s. Boshan Developers is null and void and for consequent permanent injunction, restraining them or anybody on their behalf from carrying on any construction activity in the suit property and/or changing its user. Permanent injunction restraining them from creating any third party interest as also mandatory injunction directing the petitioners herein to restore the suit property to its original pristine condition is also sought for. The subject matter of dispute is a landed property situated at village Bordem, Bicholim Taluka, more specifically described in para 5 of the plaint. The case made out in the plaint is that the suit property is leased out to the Devasthan on a permanent basis. The Devasthan is not permitted to change the user of the said property. It is contended that the Devasthan can enjoy the suit property in a restricted and controlled manner, in view of the terms and conditions of the lease and the provisions contained in the Code of Comunidades. It is contended that the Comunidade continues to be the owner of the property. The Devasthan is governed by the 'Regulamento das Mazania', better known as Devasthan Regulations and the property cannot be put to any use, which may be inconsistent with the object of the Devasthan or which may be in breach of the Devasthan Regulations. The defendant nos.1 and 2 sought rejection of the plaint under Order VII, Rule 11(d) of the Code, by filing separate applications. It is contended that the suit is barred by limitation. Reliance in this regard is placed on para 13 of the plaint, in order to contend that on its own saying since the order 2010, villagers/ residents of Gaonkarwada had noticed construction activities in the suit property and complaints/ representations were lodged in respect thereof to various authorities. It is contended that thus, the villagers/ residents of Gaonkarwada were having knowledge of construction activities since the year 2010. It is contended that the villagers/ residents of Gaonkarwada, being the members / constituents of the Comunidade, a corresponding knowledge has to be attributed to the Comunidade also. Thus, the suit having been filed in the year 2015, is barred by limitation. It is contended that the suit is barred under Section 289 of the Goa Municipalities Act (the Municipalities Act, for short) since no notice as contemplated under Section 289(1)(b) of the said Act is issued.
5. The Devasthan has contended that under Article 9 of the Code of Comunidades, the Comunidade is not entitled to file a suit without permission of the Administrative Tribunal. The Comunidade has neither obtained nor produced any such permission nor there is any statement to that effect in the plaint. Thus, the suit is barred by the provisions of the Code of Comunidades.
6. The Devasthan has also raised similar plea based on
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