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2023 Supreme(Online)(Bom) 23883
BOMBAY HIGH COURT
B. P. Colabawalla, J
Mrs. Luizinha Pereira – Appellant
Versus
Mr. Assis Piedade Fernandes – Respondent
Writ Petition No. 276 of 2022|Regular Civil Suit No.76/2009/C|Miscellaneous Civil Appeal No.60/2020|Writ Petition No. 716/2012|Special Civil Suit No.43/2018/B
For the Appellants/Petitioners: Mr. J. E. Coelho Pereira, Mr. Bernard Fernandes, Mr. V. Braganza
For the Respondents: Mr. Pranav Shenvi Kakodkar, Mr. John Abreu Lobo
The Trial Court's discretion in granting injunctions is upheld unless proven arbitrary or contrary to law; regulatory compliance and mundkar rights are paramount in property-related disputes.
Headnote:(A) Goa Land Development and Building Construction Regulations, 2010 - Regulation 4.4.2 and 4.7 - Writ Petition challenging Appellate Court's order restraining construction activities of Defendants; original injunction denied by Trial Court based on lack of prima facie case regarding setbacks and appropriate permissions; Appellate Court reversed this finding, leading to appeal. (Paras 11, 12, 15, 32)
(B) Legal Principles - The Trial Court’s discretion in granting injunctions should not be disturbed unless shown to be arbitrary, capricious, or perverse. Rights of mundkars and regulatory compliance critical in assessment of construction legitimacy. (Paras 29, 30)
(C) Findings of Court - Appellate Court's interference with Trial Court's discretionary order deemed unjustified due to lack of cogent reasoning; construction to proceed as per approved plans and permissions obtained. (Paras 31, 32)
Facts of the case:
Plaintiffs sought permanent injunction against construction on neighboring property, alleging violation of setback requirements; Defendants argued compliance with regulatory frameworks.
Issues: The court addressed whether the Appellate Court properly assessed the Trial Court's findings concerning prima facie case and compliance with setback regulations.
Ratio Decidendi: The court underscored the importance of preserving the Trial Court's discretion unless clear error was shown, affirming the validity of the original construction permissions.
Result: Writ Petition allowed; Appellate Court's order quashed, restoring the Trial Court's decision.
| Table of Content |
|---|
| 1. identifies the parties involved in the case. (Para 1 , 2) |
| 2. presents the factual background of the construction dispute. (Para 5 , 6 , 7) |
| 3. the trial court's decision on the injunction request. (Para 11 , 12) |
| 4. argument by defendant on appeal against the appellate court's interference. (Para 13 , 14) |
| 5. court's analysis of the appellate court's decision. (Para 15 , 16 , 19) |
| 6. court overturns the appellate court's ruling, restoring the trial court's order. (Para 22 , 32) |
| 7. final conclusion and order of the high court. (Para 33 , 34) |
JUDGMENT:
1. Rule. With the consent of Parties, Rule made returnable forthwith and heard finally.
2. By the present Petition, the Petitioners [who are original Defendant Nos. 1(a) and 2 in Regular Civil Suit No.76/2009/C] take exception to the judgment and order dated 11.05.2022 ((cid:210)the impugned order(cid:211)) passed by the learned District Judge-3, North Goa, at Panaji in Miscellaneous Civil Appeal No.60/2020 [for short, (cid:210)the Appellate Court(cid:211)]. By the impugned order, the Appeal preferred by Respondent Nos. 1 and 2 herein [the original Plaintiffs] was allowed and the Appellate Court restrained the Petitioners herein [Defendant Nos. 1(a) and 2] from carrying out any construction within the setback area of 3 metres from the compound wall of Respondent Nos. 1 and 2 herein [original Plaintiffs].
3. By the impugned order, in effect, what the Appellate Court did was to set aside the order dated 23.11.2020 passed by the learned Civil Judge, Junior Division, (cid:210)C(cid:211) Court at Panaji [for short (cid:210)the Trial Court(cid:211)] under which the Application for temporary injunction filed by Respondent Nos. 1 and 2 herein [original Plaintiffs] was dismissed by the Trial Court.
4. As mentioned earlier, Respondent Nos.1 & 2 herein were Plaintiff Nos. 1 and 2 before the Trial Court. The Petitioners herein were Defendant Nos. 1(a) and 2 before the Trial Court. Respondent Nos.3 and 4 herein were Defendant Nos.3 and 4 before the Trial Court. For the sake of convenience, I shall refer to the parties as they were arrayed before the Trial Court in Regular Civil Suit No. 76/2009/C.
5. Brief facts giving rise to the present controversy are this. The Plaintiffs instituted Regular Civil Suit No. 76/2009/C inter alia seeking a permanent injunction to restrain Defendant Nos. 1(a) and 2 from carrying out any construction activities in the property bearing Survey No. 37/11 of Mercurim, Agassaim Goa (for short (cid:210)the suit property(cid:211)). The Plaintiffs and Defendant Nos.
1(a) and 2 are neighbours and the house of the Plaintiffs is situated on the property bearing survey No.37/11-A which is adjoining to the suit property.
6. In brief, it is the case of the Plaintiffs that in the year 2003, Defendant No. 1 (now deceased), constructed two structures along the compound wall of the Plaintiffs. However, at that time it did not affect their proprietary rights. Thereafter, on 13.08.2009, Defendant No. 1 commenced construction activities in the suit property and which according to the Plaintiffs was affecting the proprietary rights of the Plaintiffs. According to the Plaintiffs, Defendant No. 1, through his labourers, began demolishing the structure being used for running a liquor Bar business and started digging a new foundation at about ¾th metres from the northern compound wall of the Plaintiffs’ property bearing Survey No. 37/11- A. According to the Plaintiffs, Defendant No. 1 was doing illegal construction without any permission and without keeping proper setbacks. Subsequently, the Plaintiffs impleaded Defendant No. 2 and amended the plaint also contending that the suit construction constitutes an obstruction to the source of light and air/ventilation to the Plaintiffs’ house on its northern side and constitutes an invasion of the Plaintiffs’ privacy.
7. Be that as it may, after the death of Defendant No. 1, Defendant No. 1(a) was brought on record and Defendant No. 2 filed his
