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2021 Supreme(Bom) 1358
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT GOA
Manish Pitale, J.
Deo Mahadeo Devasthan - Appellant
Versus
State Of Goa & Ors. - Respondents
Appeal From Order No. 15 of 2021 and Civil Application No. 29 of 2021
Decided On : 14-10-2021
Sudesh Usgaonkar and R. Pereira, Advocates, for the Appellant / S.P. Munj, Additional Government Advocate, Annelise Fernandes, V.A. Lawande and Redkar, Advocate, for the Respondents
The appellant must demonstrate sufficient material in its favor for the grant of temporary injunction.
Headnote:
Temporary Injunction - Property Dispute - Land Acquisition Act, 1894 - [FACT OF THE CASE] The appellant filed a suit seeking declaration, permanent and mandatory injunction against the respondent no. 5 for illegally using part of the appellant's property for construction. The Court rejected the application for temporary injunction, finding that the appellant failed to make out a prima facie case. [FINDING OF THE COURT] The Court found that the construction project was virtually complete and the balance of convenience and irreparable loss were not in favor of the appellant. [ISSUES] The entitlement of the appellant for grant of temporary injunction pending the suit. [RATIO DECIDENDI] The appellant failed to demonstrate sufficient material in its favor for the grant of temporary injunction. [FINAL DECISION] The appeal was dismissed. The dismissal of the appeal shall not come in the way of the appellant and the respondent no. 5 from exploring the possibility of settlement.
JUDGMENT
Manish Pitale, J. - This appeal arises out of Order dated 23/12/2020 passed by the Court of District Judge-2, South Goa, Margao, whereby, an application for temporary injunction filed on behalf of the appellant (original plaintiff) has been rejected.
2. The facts leading to filing of the present appeal are: that according to the appellant, the respondent no. 5 has been illegally using part of property belonging to the appellant in survey no. 448/8 at village Cacora Taluka Quepem to access his property at survey no. 448/11, while undertaking construction of a residential project. It is contended that there is no access to the said property in survey no. 448/11 available to the respondent no. 5 through the aforesaid small portion of the property belonging to the appellant in survey no. 448/8. The appellant had approached this Court by filing Writ Petition No. 511 of 2019, since its complaint with regard to the aforesaid grievance was not being decided by the concerned authority. This Court disposed of the said Writ Petition on 23/7/2019, by directing the concerned authority to consider the complaint of the appellant and to dispose of the same after hearing the rival parties. The concerned authority i.e. the respondent no. 2-Deputy Town Planner heard the rival parties and passed an order dated 29/8/2019, holding that there was no illegality in the construction undertaken by respondent no. 5 as it was approved by the Town and Country Planning department and subsequently by the Municipality by issuance of construction licence. With regard to the dispute raise by the petitioner regarding access, it was directed that the grievance could be raised before the competent authority for redressal.
3. It is in this backdrop that on 27/12/2019, the appellant filed a suit for declaration, permanent and mandatory injunction against the respondents herein. The appellant sought declaration in respect of orders dated 11/1/2018, 29/8/2019 and 16/12/2019, passed by the respondent-authorities as being illegal, null and void. It was contended that the said orders approving the plans while granting permission for construction project and also disposing of the complaint of the appellant were illegal and unsustainable. Consequently, the appellant sought injunction restraining the respondent no. 5 from carrying out construction in the property at survey no. 448/11, by using access from the property of the appellant at survey no. 448/8. The appellant also sought a declaration that the respondent no. 5 did not have any easementary right of way through the property belonging to the appellant in survey no. 448/8. In this suit, the appellant also filed an application for temporary injunction, seeking an order restraining the respondent no. 5 from using any part of the property in survey no. 448/8, to access its property at survey no. 448/11, for the purpose of construction.
4. The suit as well as the application for temporary injunction were resisted by the respondents. The respondent no. 5 contended that all valid permissions were available for carrying out the construction project and that the appellant nowhere claimed that the said respondent was undertaking construction in any portion of survey no. 448/8. The appellant as well as the respondent no. 5 relied upon reports of their respective experts. The respondent no. 5 placed on record photographs in order to claim that 820 sq. mtrs. of land in survey no. 448/8 was admittedly acquired by the Government for construction of road and that the portion through which the respondent no. 5 was having access for the construction project in survey no. 448/11 was through the said portion acquired by the Government, thereby demonstrating that the appellant was not entitled to the order of temporary injunction. The respondent nos. 1 to 4 being the State and the Municipal authorities also opposed the prayer made on behalf of the appellant.
5. The Court below took into consideration the material on record to arrive
