Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 6383 of 2012
( Arising out of SLP (Civil)No. 29081 of 2011)
M/s. Real Estate Agencies … Appellant(s)
Versus
Govt. of Goa & Ors. … Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
Leave granted.
2. This appeal has been filed to challenge the order dated 18th August,
2011 passed by the High Court of Bombay (Panaji Bench) in Writ Petition
No.98/11 by which the reliefs sought in the writ petition have been refused
and the writ petitioner has been left with the option of approaching the
civil court for the redressal of his grievances.
3. The facts in brief may be noted at the very outset:
(i) The petitioner herein (writ petitioner before the High Court) is a
registered partnership firm which had developed a residential colony in
Miramar, Goa, known as La Campala residential colony. It is the case of the
petitioner that after completion of the developmental work the residual
land of the colony, including all open plots that were meant to be kept
open as “vacant space”, were transferred in favour of the petitioner under
a registered deed dated 16th November, 1977. Such open spaces, according to
the petitioner, included a piece of land measuring about 19250 sq.mtrs.
bearing Chalta No.18 of PT Sheet No. 120, Miramar, Panaji, Goa (hereinafter
referred to as ‘the land in question’). The petitioner claims that the
right, title and interest in the said open land undisputedly vested in the
petitioner and the petitioner has exclusive right to develop the said open
land which is to the knowledge of all concerned including the respondents
in the present appeal.
(ii) In the writ petition filed, it was further claimed that sometime in
the year 1981 the petitioner wanted to raise construction in an area of
about 7,000 sq.mtrs. (consisting of 14 plots of 500 sq.mtrs. each) out of
the aforesaid open space of 19250 sq.mtrs. According to the petitioner,
such construction over the 7,000 sq.mtrs. of land would still have kept
more than 12,000 sq.mtrs. as open space which area would have been within
the prescriptions contained in the existing Municipal Rules and
Regulations. However some of the purchasers of the plots who had
constructed their buildings thereon and had formed a co-operative society
i.e. Model Cooperative Housing Society, approached the Bombay High Court by
way of a civil suit bearing No.1/B of 1981 claiming an easementary right in
respect of the entire vacant/open space of 19250 sq.mtrs. In the aforesaid
suit, the Co-operative Society, as the plaintiff, contended that in the
brochures published at the time of development of the housing colony it was
represented that 19250 sq.mtrs. of open space will be available in order to
ensure plenty of light and ventilation besides serving as a recreational
ground for the children of the members of the Society. In these
circumstances a decree of injunction was sought against the defendants in
Suit No. 1/B of 1981 particularly the defendant No.9 i.e. the petitioner
herein from raising any construction on the land in question. By judgment
and order dated 29th April, 1983 the said suit was decreed. L.P.A. No.
26/83 filed by the present petitioner against the said judgment and order
dated 29th April, 1983 was dismissed and the decree passed by the Learned
Single Judge was affirmed. According to the petitioner, in the course of
the aforesaid proceedings, no issue with regard to the title of the
petitioner to the land in question was raised and it was accepted by all
the contesting parties that the petitioner was the owner of the said land
measuring 19250 sq.mtrs. In fact, the only issue in the suit was with
regard to the right of the petitioner to raise constructions on the said
land or on any part thereof.
(iii) It was the further case of the petitioner in the writ petition that
an area of about 625 sq. mtrs. out of the open space in question was
acquired under the provisions of the Land Acquisition Act, 1894 sometime in
the year 1990 and in the said acquisition proceeding, the petitioner was
treated as the absolute owner of the land. In fact, according to the
petitioner, the compensation payable under the Award was paid to the
petitioner who had also filed a Reference Application under Section 18 of
the Act and had further carried the matter in an appeal to the High Court
of Bombay.
4. According to the petitioner the aforesaid facts show and establish
the undisputed title of the petitioner to the land in question. Certain
activities were, however, undertaken on the said land on 2nd January, 2011
and the inquiries made on behalf of the petitioner indicated that alongwith
a project of beautification of the adjoining Miramar lake a project to
develop the open land in question was proposed to be undertaken.
Specifically, a jogging track, walk ways, recreational centres etc. were
proposed. According to the petitioner, further inquiries revealed that such
developmental work on the land was proposed to be undertaken at the
instance of the respondent No. 3 who is the local Municipal Councilor and,
in fact, a Government Order dated 30th June, 2010 had been passed in the
matter by the Principal Chief Engineer, Public Works Department, Government
of Goa. The petitioner had also averred in the writ petition filed, that
the very first stipulation in the order dated 30th June, 2010 required that
tenders in respect of the developmental work on the land shall not be
issued unless the land itself is acquired. However, without initiating any
proceeding to acquire the land, a tender was floated sometime in September,
2010 and the respondent No. 4 was awarded the Work Order sometime in
December, 2010 requiring completion of the developmental works on the land
within 180 days. It is pursuant thereto that the works on the land were
undertaken w.e.f. 2nd January, 2011. As the aforesaid actions of the
respondents were not only in violation of the Government Order dated 30th
June, 2010 but also had the effect of depriving the petitioner of the
ownership in the property in question, the petitioner filed the writ
petition in question seeking interference of the High Court in the proposed
developmental work which according to the petitioner had already commenced.
5. The respondents in the writ petition, including the Government of Goa
and the Corporation of the city of Panaji apart from the Model Co-operative
Housing Society, filed separate counter affidavits/written statements in
the case. According to the State the open space in question was required to
be kept free from any kind of construction under the planning laws in force
and that the plot owners in the residential colony have an easementary
right on and over the open space which had been so declared by the High
Court of Bombay in Civil Suit No.1/B/1981 and L.P.A. No.26/1983.
Furthermore in terms of the judgments of the High Court in the aforesaid
cases the petitioner was obliged to keep the open space so available and
vacant at all times. In the affidavit filed the State had also contended
that at no point of time the petitioner was interested in developing the
open space and the same had become a dumping ground of garbage. In such a
situation the Local Corporator of the Panaji Municipal Corporation was
requested by the residents to intervene in the matter and develop the land
into a recreational area. Initially the work was entrusted to the Goa State
Infrastructure Development Corporation. Thereafter, the Goa State Urban
Development Agency was entrusted with the responsibility. However, as both
the aforesaid entities faced the problem of shortage of funds it was
decided that the work will be carried out by the PWD, Goa. In the affidavit
filed it was further stated that the open space was to be developed into
(a) Children Playing area, (b) Joggers Track, (c) Water Harvesting Pond,
(d) Multi-purpose court for cricket/football and (e) a Tennis court and an
Amphitheatre. Such development which was to be to the benefit of all the
residents, particularly the children and the elders, was estimated to cost
around Rs.2.92 crores. It was specifically stated in the affidavit of the
State, that the work had already commenced and almost 14% thereof had been
completed.
In para 14 of the affidavit it was stated that in terms of the
decision of this Court in Chet Ram Vashist v. Municipal Corporation of
Delhi[1], the petitioner has ceased to be the legal owner of the land and
its position was that of a trustee holding the land for the benefit of the
members of the Housing Society and the public at large. The petitioner had
no right to use the land for any developmental work or to transfer or sell
the same; it was merely a trustee of the land holding the same for a
specific purpose i.e. beneficial utilization as an open space by the
community at large. In a situation where the petitioner had done nothing to
develop the open space for the public good, the Government had decided to
step in and carry out the project for the benefit of the residents.
6. In the affidavit filed by the respondent No.2 – Commissioner of the
Municipal Corporation, Panaji, a claim that the open space had vested in
the Corporation had been raised whereas in the affidavit filed on behalf of
respondent No. 5 i.e. Model Cooperative Housing Society, the details of the
judgment in Civil Suit No. 1/B of 1981 had been mentioned under which the
land in question is required to be maintained as an open space so to enable
the residents to have free access to light and air apart from recreational
facilities. In the affidavit filed by the respondent No. 5, the decision of
this Court in Chet Ram Vashist ‘s case (supra) had also been relied upon to
contend that the legal title of the petitioner in the said open space stood
extinguished and petitioner is holding the land only as a trustee on behalf
of the residents of the locality. As the petitioner had not discharged the
duties cast upon it as a trustee and had utterly failed to develop the open
space, the residents of the locality had approached the local Ward
Councilor (respondent No.3) who had taken the initiative to develop the
land in question.
7. The aforesaid detailed recital of the facts projected by the parties
had become necessary as the order of the High Court assailed in the present
SLP does not contain any reference to the relevant circumstances in which
the High Court had passed the impugned order or the reasons why the
petitioner was relegated to the remedy of initiating a civil action. Time
and again this Court has emphasized that such a course of action by a Court
cannot lead to a legally acceptable conclusion inasmuch as the manner of
reaching the decision and the reasons therefor are sacrosanct to the
judicial process. However, we do not wish to dilate the aforesaid aspect
of the matter any further in view of the clear and consistent insistence of
this Court on the aforesaid fundamental requirement.
8. A reading of the order of the High Court would go to show that its
refusal to interdict the developmental works undertaken or about to be
undertaken is on the ground that the Petitioner has an efficacious
alternative remedy, i.e. a suit for injunction. The Writ Court exercising
jurisdiction under Article 26 of the Constitution is fully empowered to
interdict the State or its instrumentalities from embarking upon a course
of action to detriment of the rights of the citizens, though, in the
exercise of jurisdiction in the domain of public law such a restraint order
may not be issued against a private individual. This, of course, is not
due to any inherent lack of jurisdiction but on the basis that the public
law remedy should not be readily extended to settlement of private disputes
between individuals. Even where such an order is sought against a public
body the Writ Court may refuse to interfere, if in the process of
determination disputed questions of fact or title would require to be
adjudicated.
9. However, there is no universal rule or principle of law which debars
the Writ Court from entertaining adjudications involving disputed questions
of fact. In fact, in the realm of legal theory, no question or issue would
be beyond the adjudicatory jurisdiction under Article 226, even if such
adjudication would require taking of oral evidence. However, as a matter
of prudence, the High Court under Article 226 of the Constitution, normally
would not entertain a dispute which would require it to adjudicate
contested questions and conflicting claims of the parties to determine the
correct facts for due application of the law. In ABL International Ltd. &
Anr. V. Export Credit Guarantee Corporation of India Ltd.[2], the precise
position of the law in this regard has been explained in paragraphs 16, 17
and 19 of the Judgment in the course of which the earlier views of this
Court in Smt. Gunwant Kaur & Ors. v. Municipal Committee, Bhatinda &
Ors.[3] and Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council[4]
has been referred to. The aforesaid paragraphs of the judgment in ABL
International Ltd. & Anr. v. Export Credit Guarantee Corporation of India
Ltd. (supra) may, therefore, be usefully extracted below:
“16. A perusal of this judgment though shows that a writ
petition involving serious disputed questions of facts which
requires consideration of evidence which is not on record, will
not normally be entertained by a court in the exercise of its
jurisdiction under Article 226 of the Constitution of India.
This decision again, in our opinion, does not lay down an
absolute rule that in all cases involving disputed questions of
fact the parties should be relegated to a civil suit. In this
view of ours, we are supported by a judgment of this Court in
the case of Gunwant Kaur v. Municipal Committee, Bhatinda - 1969
(3) SCC 769 where dealing with such a situation of disputed
questions of fact in a writ petition this Court held: (SCC p.
774, paras 14-16)
“14. The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts
were in dispute and what were admitted could only be
determined after an affidavit-in-reply was filed by the
State. The High Court, however, proceeded to dismiss the
petition in limine. The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226 merely
because in considering the petitioner's right to relief
questions of fact may fall to be determined. In a petition
under Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is,
it is true, discretionary, but the discretion must be
exercised on sound judicial principles. When the petition
raises questions of fact of a complex nature, which may for
their determination require oral evidence to be taken, and on
that account the High Court is of the view that the dispute
may not appropriately be tried in a writ petition, the High
Court may decline to try a petition. Rejection of a petition
in limine will normally be justified, where the High Court is
of the view that the petition is frivolous or because of the
nature of the claim made dispute sought to be agitated, or
that the petition against the party against whom relief is
claimed is not maintainable or that the dispute raised
thereby is such that it would be inappropriate to try it in
the writ jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed by the
appellants it is clear that in proof of a large number of
allegations the appellants relied upon documentary evidence
and the only matter in respect of which conflict of facts may
possibly arise related to the due publication of the
notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was
not justified in dismissing the petition on the ground that
it will not determine disputed question of fact. The High
Court has jurisdiction to determine questions of fact, even
if they are in dispute and the present, in our judgment, is a
case in which in the interests of both the parties the High
Court should have entertained the petition and called for an
affidavit-in-reply from the respondents, and should have
proceeded to try the petition instead of relegating the
appellants to a separate suit.”
17. The above judgment of Gunwant Kaur (supra) finds support
from another judgment of this Court in the case of Century Spg.
and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council – 1970 (1) SCC
582 wherein this Court held: (SCC p. 587, para 13)
“Merely because a question of fact is raised, the High
Court will not be justified in requiring the party to seek
relief by the somewhat lengthy, dilatory and expensive
process by a civil suit against a public body. The
questions of fact raised by the petition in this case are
elementary.”
xxx xxx xxx
19. Therefore, it is clear from the above enunciation of law
that merely because one of the parties to the litigation raises
a dispute in regard to the facts of the case, the court
entertaining such petition under Article 226 of the Constitution
is not always bound to relegate the parties to a suit. In the
above case of Gunwant Kaur (supra) this Court even went to the
extent of holding that in a writ petition, if the facts require,
even oral evidence can be taken. This clearly shows that in an
appropriate case, the writ court has the jurisdiction to
entertain a writ petition involving disputed questions of fact
and there is no absolute bar for entertaining a writ petition
even if the same arises out of a contractual obligation and/or
involves some disputed questions of fact.
10. The Petitioner in the present case claimed title to the land in
question on the basis of the deed of Indenture dated 16.11.1977; the order
of the Bombay High Court in Suit No. 1/B/1981 and LPA No. 26 of 1983 as
well as the proceedings of acquisition in respect of an area of about 625
sq. m. out of the open space in question. The State did not claim any
title to the land but had contended that by virtue of the judgment of this
Court in Pt. Chet Ram (supra) the Petitioner had ceased to hold the normal
attributes of ownership of immovable property in respect of the land in
question and its position was more akin to that of a trustee holding the
land for the benefit of the public at large. The Housing Society
(defendant No.5), on the other hand, claim easementary right of enjoyment
of the open space. It is only the Municipal Corporation, Panaji (defendant
No.2), who had claimed that the land has vested in it. How and in what
manner such vesting had occurred, however, had not been stated in support
of the claim of the Corporation. There is complete silence in this regard.
In such circumstances, it was incumbent on the High Court to undertake a
deeper probe in the matter in order to find out whether the claim of the
Corporation had any substance or had been so raised merely to relegate the
Petitioner to a more “lengthy, dilatory and expensive process” that is
inherent in a civil suit. The High Court, in our considered view, ought not
to have disposed of the Writ Petition at the stage and in the manner it had
so done and, instead, ought to have satisfied itself that there was
actually a serious dispute between the parties on the question of ownership
or title. Only in that event, the High Court would have been justified to
relegate the Petitioner to the Civil Court to seek his remedies by way of a
suit.
11. On the view that we have taken, we have to conclude that the impugned
order dated 18.08.2011 passed by the High Court is not tenable in law.
However, having arrived at the aforesaid conclusion the next question that
has to engage our attention is what would be the appropriate order in the
facts and circumstances of the case?
12. In the counter affidavit filed before this Court, the Respondent
claims that about 40% of the work has been completed and extension of time
for completion of the remaining work, as per the terms of the Contract, is
being processed. Though the Petitioner disputes the aforesaid position, it
may be reasonable to assume that in absence of any interim order some
progress in the execution of the developmental work has taken place during
pendency of the present proceeding. There is also no manner of doubt that
the land in question being earmarked as open space and the said fact having
been affirmed by the High Court in Civil Suit No. 1/B/1981 and LPA No. 26
of 1983, the normal attributes of legal ownership of the land have ceased
insofar as the Petitioner is concerned who is holding the land as a Trustee
on behalf of the residents and other members of the Public. The Petitioner
cannot transfer the land or use the same in any other manner except by
keeping it as an open space. The aforesaid position flows from the
decision of this Court in Pt. Chet Ram Vashist (supra) wherein such a
conclusion had been reached by this Court in a largely similar set of
facts.
13. Keeping in mind the very limited rights of the Petitioner that are
disclosed at this stage by the materials on record and taking into account
the nature of the developmental works that were proposed and the fact that
a part of the work may have been executed in the meantime, we are of the
view that the Respondents should be permitted to complete the remaining
work on the land and the petitioner should be left with the option of
raising a claim before the appropriate forum for such loss and
compensation, if any, to which he may be entitled to in law. Naturally, if
any such claim of compensation is required to be founded on proof of
title/ownership or any other such relevant fact(s), the Petitioner will
have to establish the same. No part of the present order shall be construed
to be an expression of any opinion of this Court with regard to the
ownership or any other right or entitlement of the Petitioner which has to
be proved in accordance with law.
14. Consequently, we dispose of the Civil Appeal in the above terms.
...……………………J.
[P SATHASIVAM]
………………………J.
[RANJAN GOGOI]
New Delhi,
10th September, 2012.
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[1] (1995) 1 SCC 47
[2] [2004 (3) SCC 553]
[3] [1969 (3) SCC 769]
[4] [1970 (1) SCC 582]
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