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2024 Supreme(Online)(Bom) 5261
BOMBAY HIGH COURT
PRAKASH D. NAIK, J
SIDDHARTH CHANDRAKANT MAYEKAR – Appellant
Versus
CHIEF OFFICER MAPUSA MUNICIPAL COUNCIL AND 2 ORS – Respondent
WP 579 / 2023
Mr. Arjun f. Naik, Advocate for the Petitioners in WP/579/2023 and Respondent No.3 in WP/678/2023. Mr. S.D. Padiyar a/w Mr. P. Shirodkar a/w Ms. A. Rane, Advocate for Respondent No.1 in both the Petitions. Mr. S.M. Walwaikar a/w Mr. M. Raikar, Advocate for Respondent No.3 in WP/579/2023 and for Respondent No.2 in WP/678/2023. Mr. Ashwin D. Bhobe a/w Ms. S. Shaikh, Advocate for Respondent No.2 in WP/579/2023 and for the Petitioner in WP/678/2023.
The court ruled that demolition orders must be based on valid jurisdiction and evidence, emphasizing that mere complaints do not suffice to justify such actions.
Headnote:(A) Constitution of India - Article 227 - Goa Municipalities Act, 1968 - Section 184(8) - Challenge to demolition notice - Petitioners contested the legality of the demolition notice issued for a structure claimed to be existing since Portuguese times, asserting that the notice was based on false complaints and lacked jurisdiction. The court found that the structure was indeed in existence for several years and that the final notice for demolition was unwarranted. (Paras 1, 5, 17, 23)
(B) Jurisdiction - The court emphasized that the authority must have jurisdiction to issue demolition orders, and mere complaints do not justify such actions without proper evidence. (Paras 17, 22)
(C) Evidence - The court noted that the Petitioners provided sufficient documentation to establish the long-standing existence of the structure, including trade licenses and electricity bills. (Paras 17, 23)
(D) Final Decision - The court quashed the demolition notice and the appellate orders, ruling that the actions taken were not justified. (Paras 23)
JUDGMENT :
1. The Petitioners have invoked Article 227 of the Constitution of India challenging the Judgment and Order dated 10th July, 2023 passed by Principal District Judge, North Goa, Panaji in Civil Appeal No.05 of 2023 and Judgment and Order dated 10th July, 2023 passed by Principal District Judge, North Goa, Panaji in Civil Appeal No.4 of 2023 respectively. Both the appeals were preferred assailing final notice dated 11th January, 2021 issued by Chief Officer Mapusa Municipal Council directing demolition of erection/construction/ encroachment admeasuring area of 7.10 mts X 5.65 mts within 15 days from the date of receipt of notice.
2. The Show Cause Notice dated 10th February, 2020 was issued to Petitioner Jeevan Mayekar by Chief Officer Mapusa Municipal Council stating that the approved plan is showing a structure in road widening area as to be demolished. M/s. Prabhu Constructions had applied for occupancy certificate vide Application dated 26th October, 2018 and it is noticed that he has not demolished the structure constructed in road widening area which is described in the transgression report. The resident of building namely Prabhu Chambers vide complaint letter dated 11th July, 2019 has brought to the notice of the council that the said illegal construction which is done in road widening area has led to blockage of access to the parking area. The office is in receipt letter dated 29th November, 2019 from Prabhu constructions enclosing Order dated 25th November, 2019 issued by Goa Real Estate Regulatory Authority Department of Urban Development, Panaji- Goa. The noticee was called upon to show cause, why an Order under Section 184(8) of the Goa Municipalities Act, 1968 should not be passed for removal / demolition of the illegal kiosk. If nothing is heard from him within stipulated time it will be presumed that he has nothing to say in the matter and the council shall be free to proceed with further action as provided under the Act.
3. In response to show cause notice dated 10th February, 2020, the Petitioner in Writ Petition No.678 of 2023 submitted reply dated 18th March, 2020 contending that the show cause notice and the Transgression Report dated 3rd January, 2020 were bad in law, not maintainable being beyond the jurisdiction of Respondent No.1. The subject matter of show cause notice was in existence during Portuguese time before coming into force, the Goa Municipalities Act and that trade licence fees is regularly paid in respect of shop premises. Electricity connection was issued. Father of Petitioner Chandrakant Mayekar was conducting business in shop and was residing Mundkar in said property and since relationship with Priest was good no case for Munkarship was filed. They were in possession and enjoyment of shop premises and surrounding area which was within the knowledge of the Priest of St. Jeromes Church. Show cause notice is issued on false complaint prepared agreement for development-cum-sale and it was executed on 21st July, 2011. The complainant was supposed to deliver possession of premises having space of 80 sq. meters with 20 sq. meters of mezzanine on ground floor in Prabhu Chambers. Premises were vacated and possession given to complainant. Letter was issued to complainant for delivery of possession. The complainant made with allegations in reply. Complainant failed to handover possession of premises.
4. Vide Final Order dated 11th January, 2021 the Respondent No.1 ordered demolition.
5. The brief facts incorporated in final notice dated 11th January, 2021 issued by Chief Officer Mapusa Municipal Council/Respondent No.1 are as follows :
i. Council is in receipt of letter dated 29th November, 2019 from M/s. Prabhu Constructions requesting therein to expedite the representation dated 4th November, 2019. In the letter dated 4th November, 2019 M/s. Prabhu Constructions has informed that one Shri. Jeevan Mayekar (Petitioner in Writ Petition No.678 of 2023), who is in possession of the structure as de
