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2019 Supreme(Bom) 1793
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. BHADANG, J.
M/s Sheraton Hotels LLP - Appellant
Versus
Anthony Mascarenhas - Respondent
Writ Petition No. 635 of 2019
Decided On : 23-09-2019
Advocate Appeared:
S.S. Kantak, Adv., J. Supekar, Adv., Kher Simoes, Adv., Sufiyan Sayed, Adv., G. Panandikar, Adv.
The central legal point established in the judgment is that the Civil Court lacks jurisdiction to examine the validity of the permission granted by the NGPDA under the TCP Act.
Headnote:
EASEMENTARY RIGHT - Property Dispute - TCP Act, Section 121, Section 129 - The court discussed the easementary right claimed by the respondent and the validity of the permission granted by the NGPDA under the TCP Act. The court found that the respondent failed to establish a prima facie case of easementary right and held that the Civil Court lacks jurisdiction to examine the validity of the permission granted by the NGPDA.
Fact of the Case:
The petitioners challenged the judgment and order passed by the Appellate Court, which restrained them from construction in the suit property. The first respondent claimed an easementary right of access through the suit property and sought an injunction against construction.
Finding of the Court:
The court found that the respondent failed to establish a prima facie case of easementary right and held that the Civil Court lacks jurisdiction to examine the validity of the permission granted by the NGPDA.
Issues: The main issue was the validity of the injunction granted by the Appellate Court and the jurisdiction of the Civil Court to examine the validity of the permission granted by the NGPDA.
Ratio Decidendi: The court held that the Civil Court lacks jurisdiction to examine the validity of the permission granted by the NGPDA under the TCP Act.
Final Decision: The petition was allowed, and the impugned order was set aside. The order dismissing the application for temporary injunction was restored.
JUDGMENT :
C.V. BHADANG, J.
1. Rule, made returnable forthwith. The learned Counsel for the contesting respondent no.1, waives service. Heard finally by consent of parties.
2. The challenge in this petition at the instance of the petitioners, who are the defendants in Regular Civil Suit No.53/2019/A is to the judgment and order passed by the Appellate Court on 24.06.2019 in MCA No.29/2019. By the impugned judgment and order, the Appellate Court while allowing the appeal has restrained the petitioners or anybody on their behalf from doing any work of construction in the suit property pending the disposal of the suit.
3. The brief facts are that the petitioners are having their property bearing survey no.132/15 at Village Gaurawada, Calangute. The land of the first respondent bearing survey no.132/16 is to the south of the land survey no.132/15. There is a Major District Road (MDR) running north-south to the eastern side of the survey no.132/15 as well as survey no.132/16. The first respondent filed Regular Civil Suit No.53/2019/A against the petitioner and the second respondent for a declaration that the first respondent has acquired easementary right of an access of three metres though the suit property i.e. survey no.132/15 and for injunction restraining the appellants from making any construction therein. The first respondent also sought an order directing the second respondent (the defendant no.4) to cancel and revoke the construction licence granted to the appellant.
4. Both the Trial Court as well as the First Appellate Court have concurrently found that the first respondent has failed to, prima facie, establish a case of easementary right of access. The learned Trial Court after having held so and further having regard to the fact that construction licence cannot be challenged before the Civil Court had refused to grant injunction by order dated 08.04.2019. Feeling aggrieved, the first respondent had challenged the same before the learned District Judge in MCA No.29/2019.
5. A perusal of the impugned judgment and order passed by the Appellate Court, shows that the Appellate Court has also found that the property of the first respondent is not landlocked and the finding to that effect of the Trial Court was confirmed. However, the Appellate Court went upon examining the challenge to the permission granted to the petitioner by the Panchayat as well as the North Goa Planning Development Authority (NGPDA) and has found that the documents, prima facie, show that the construction of the seven storeyed commercial building by the petitioner required a set back of 6.00 metres to be maintained and not 4.5 metres as shown in the approved plan. It is in these circumstances, that the Appellate Court has granted the injunction and allowed the application.
6. I have heard Mr. Kantak, the learned Senior Counsel for the petitioners and Mr. Panandikar, the learned Counsel for the contesting respondent no.1. With the assistance of the learned Counsel appearing for the parties, I have gone through the records.
7. It is submitted by Mr. Kantak, the learned Senior Counsel for the petitioners, that the Appellate Court having concurred with the finding of the Trial Court about the first respondent having failed to, prima facie, show the existence of the easementary right, could not have granted the injunction by examining the legality of the permission granted by the NGPDA, moreso, in the absence of the NGPDA being a partydefendant to the suit. The learned Senior Counsel has placed reliance on the decision of this Court in the case of Satish s/o Gayacharan Trivedi vs. Dr. Gopal Ramnarayan Mundhada & Ors, 2015 5 MhLJ., in order to submit that while interpreting Section 149 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act, for short) which is pari materia with Section 129 of the Goa Daman and Diu Town and Country Planning Act, 1974 (TCP Act, for short), this Court has found that the Civil Court has no jurisdiction to go into the validity
