12-WP-601-2019.DOC

Vinita

IN THE HIGH COURT OF BOMBAY AT GOA.

WRIT PETITION NO. 601 OF 2019.

RADHABAI PARSEKAR AND ANR.,

VS

THE CHAPEL NOSSA SENHORA DO

LIVRAMENTO @ CHAPEL OF OUR

LADY OF LIVRAMENTO AND 2 ORS.,

...Petitioners.

…Respondents.

Mr. J. J. Mulgaonkar and Ms. R. Banaulikar, Advocates for the

petitioners.

Mr. S. D. Padiyar and Mr. P. Shirodkar, Advocates for the respondent

no. 2.

CORAM:

SANDEEP K. SHINDE, J.

DATE:

11^th July, 2022.

P.C.:

1.

In Regular Civil Suit no.171/2016/D, instituted by the

respondent no.1 seeking a decree of prohibitory and mandatory

injunction, the learned Trial Court vide order dated 16.8.2016,

injuncted the petitioners from carrying out any construction,

reconstruction and/or extension to the suit structure or from

demolishing the structure or any part thereof until the final disposal of

the suit. As also the petitioners and original defendant no.3-

Guilhermina D'Cunha were directed by temporary injunction to

remove the construction material dumped in the suit property and

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restore the suit property to its original state.

2.

In an appeal, being Misc. Civil Appeal No. 107 of 2016,

preferred by the aggrieved defendant nos.1 and 2, order of the trial

Court was maintained.

3.

The correctness and legality of these orders are questioned in

this Writ Petition.

4.

Mr. Mulgaonkar, learned Counsel for the petitioners would, rely

on the, No objection certificate for house repairs, issued by the

Municipal Council to contend that petitioners were simply carrying

out repairs to make the house habitable and not building operations,

within the meaning of Section 2(5) of the Goa Daman and Diu Town

and Country Planning Act, 1974( “the Act of 1974” for short). To

verify this fact, respondent no.2 was directed to inspect the suit

construction and report accordingly.

5.

Mr. S. D. Padiyar, learned Counsel for the respondent no. 2 –

Mapusa Municipal Council has placed on record, report of site

inspection dated 8.7.2022. It is taken on record and marked “X” for

identification.

6.

Paragraphs 2 and 3 of the report read as under:-

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12-WP-601-2019.DOC

“During the course of site inspection, it is noticed

that the Respondents Petitioners have undertaken

Reconstruction of the existing residential house

consisting of two separate units having total area

admeasuring 9.50 x 9.00 = 85.50 m2 in the property

bearing Chalta No.70, 71 & 72 of P.T. Sheet No.122

of Mapusa. The Respondents have constructed the

R.C.C. flat slab over 13 nos of R.C.C Columns by

removing the original Manglore tiled roof at the

original ridge level of the house in complete

violation of the NOC for house repairs issued by the

Mapusa

Municipal

Council

vide

No

MMC/ENGG/3697/2016 dtd. 29 04/2016.

The portion of walls in between illegally casted

ROC slab bottom and original caves level of the

said house was found open and presently found

covered with plastic which the petitioner intends to

raise with laterite masonarny. The details of the

same is depicted in the annexed sketch and attached

photographs.”

7.

Thus, apparently, the report indicates petitioners carried out

building operations without authority and/or permissions.

8.

In that view of the matter, petition deserves no consideration.

However, in case the petitioners apply for development permission

under Section 44 of the said Act, the authority under the said Act shall

consider the application in accordance with law, after hearing the

interested parties, provided application is moved as required under the

Act/Rules within two weeks from the date on which order is uploaded

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on the High Court website.

9.

Needless to say that authority under the Act shall grant or refuse

the permission in accordance with law without being influenced by the

ord