1. This is a petition which assails an order dated 14 December 2021 passed by the Chief Town planner (Planning and Member Secretary Town and Country Planning Board)-respondent no.2, whereby an appeal filed by the petitioner under Section 52 of the Goa Town and Country Planning Act, 1974 (for short "TCP Act") against the final notice of demolition dated 16 July 2020, issued under Section 52 of the TCP Act by the Member Secretary, Greater Panaji Planning and Development Authority (for short "GPPDA"), stands dismissed.

2. The dispute between the parties had arisen in view of the complaint made by respondent no.5-Mr.Anton Xavier Fernandes, who complained against the construction undertaken by the petitioner asserting that the construction, as undertaken under the garb of a repair permission, to be illegal. According to the complaint, construction was carried out in respect of the dwelling house on survey no.61/7.

3. The case of the petitioner is that there were prior disputes between the parties under which the land along with the structure was the subject matter of legal proceedings in the nature of a suit which was instituted in the year 1967 in relation to a Deed of Sale as executed by Vendors qua the sale, in favour of parents of respondent no.5. Petitioner's late husband and others co-owners were parties to the said suit. Ultimately, the said suit was decreed on 23 November 1970 and such decree had attained finality. The appeal also failed. In the execution proceedings the parents of the petitioner through whom the petitioner claims her right title and interest, were given possession of the property on 26 April 1975.

4. It is the case of the petitioner that since then, the petitioner is in settled possession of the land and the structure. The petitioner contends that however, although all the issues in regard to rights and interests of the petitioners qua the said property stood concluded in the such suit, and ultimately the possession was handed over in favour of the petitioner in the year 1975, respondent no.5 has sought to reagitate the dead issues by filing a fresh suit before Civil Judge, Junior Division at Panaji in Regular Civil Suit No. 100/2016/C asserting rights in respect of said land and structure, inter alia praying for a permanent injunction restraining the petitioner from the suit property and making another prayer (a) that the petitioner/defendant be restrained from carrying out illegal construction creating third party rights by way of interim order in respect of the suit property. It is contended that an application praying for a temporary injunction was also filed in the said suit which is pending adjudication. Referring to the verification clause of the suit, it is stated that the said suit was instituted on 15 July 2015 and the same is still pending. It is also contended by learned counsel for the petitioner that in such suit counterclaim has also been filed on behalf of the petitioner.

5. Be that as it may, during the pendency of the suit the complaint in question dated 2 December 2015 came to be filed by respondent no.5 with the Secretary/Sarpanch Taleigao, Village Panchayat, complaining that the petitioner is undertaking construction on survey no.61/7 which according to the respondent no.5 was purchased by his mother and therefore, her name exists in the occupant column of land record maintained by the Mamlatdar Tiswadi, Panaji Goa. Respondent no.5 mother's name is Mrs. Regina Nazareth whose name is stated to be shown in the occupant's column.

6. After such complaint was received, a stop work notice dated 8 December 2015 was issued by the Village Panchayat. Ultimately a show cause notice dated 12 September 2016 was issued by the GPPDA. The petitioner responded to the said show cause notice by its reply dated 23 September 2016 inter alia pointing out that by Sale Deed dated 25 April 1967, Smt. Regina Nazareth, the mother of respondent no.5 with her husband Domingo had purchased the property bearing survey no.61/7 situated at Village Taleigao. It is stated that in reply that in the Sale Deed old survey no.277 was mentioned, hence, the petitioner had applied for a corresponding number certificate from the Directorate of Settlement of Land Records. On refusal on account of the issuance of the corresponding certificate, a certificate privately issued by Mohandas P. Kambli was obtained. It is thus contended that old survey no.277 corresponds to survey no. 61/7 of village Taleigao.

7. The petitioner has also contended that property bearing survey no. 61/7 bears the petitioner's house no.19/46/1 and the same is assessed for house tax by the village panchayat, Taleigao. The details in regard to earlier proceedings were also pointed out namely of the said Civil Suit filed in the year 1967 which came to be decreed on 23 November 1970, were also pointed out in paragraph 12 of the said reply, having succeeded in favour of the petitioner and pursuant thereto, proceedings being taken up before the learned Judicial Commissioner Court in Second Appeal No.6/1972 which also came to be decided by judgment dated 6 September 1974, whereby the Court of Judicial Commissioner's reversed the judgment and decree passed by District Court and confirmed the judgment and order passed by the learned Civil Judge, Senior Division dated 23 November 1970. It was contended that in terms of the said judgment and decree also an amount of Rs.1000/- was deposited by Mr. Simao De Sousa and challan dated 23 December 1970 came to be issued.

8. It was further contended that after the decree was passed by the Court of Judicial Commissioner, the decree of the Civil Judge, Senior Division Panaji dated 23 November 1970 came to be executed and Smt. Regional Nazareth was directed to hand over possession of the suit property to the plaintiffs therein and others. Accordingly, it was submitted that the petitioner was the lawful owner of the suit house property. It was also pointed out that there was no unauthorised construction in respect of survey no.61/7 of Taleigao carried out by the petitioner and that the said house bearing no.19/46/1 has been in existence since childhood and at present petitioner is 82 years of age. However, all these contentions of the petitioner were not accepted and the final notice dated 16 July 2020 came to be issued under Section 52 of the TCP Act 1974 by the Member Secretary of GPPDA.

9. A perusal of such final notice indicates that on the contentions which were urged on behalf of the petitioner, a legal opinion was obtained by the Member Secretary of the GPPDA and on the basis of such legal opinion dated 9 January 2019 namely of Advocate Sahish Mahambrey, referred on page 2 of the final notice, the Member Secretary, concluded that property bearing survey no.61/7 is owned by Mrs. Regina Nazareth who is holding a clear title in her name and, therefore, property in which construction is carried out is not owned by the petitioner. It was stated that house no.19/46/1 is situated on survey no.67/7 on which tax is paid. It is observed that the house on which construction has been carried out by the petitioner falls in the property survey no.61/7 and accordingly, recording other reasons it is concluded that the construction is illegal hence would be required to be demolished.

10. The said final notice was challenged in appeal by the Petitioner before the Town and Country Planning Board under Section 52 of the TCP Act and the Member Secretary/Chief Town Planner (Planning), Member Secretary of Town Country Planning Board (for short “the appellant authority”) by the impugned order dated 14 December 2021 has rejected the petitioner's appeal primarily on the same reasons as set out by the Member Secretary of GPPDA. Accordingly, the proceedings are before this Court.

11. Learned Counsel for the petitioner has contended that there is no independent application of mind on the part of the Chief Town Planner (Planning) while passing the impugned order, as he has clearly proceeded only on the basis of the order as passed by the Member Secretary, of GPPDA, who had referred to the legal opinion of the Advocate Shri S. Mahambrey stating that the petitioner had no title to the suit property. The primary contention as urged on behalf of the petitioner is that in making such observations as in the final notice dated 16 July 2020 as also in the impugned order passed by the appellate authority, the entire adjudication of the Civil Suit which had commenced in the year 1967 which had attained finality and by virtue of which possession was handed over to the petitioner in 1975 stands nullified.

12. The next contention as urged on behalf of the petitioner is to the effect that during the interregnum i.e. after the complaint was filed by respondent no.5 before the Village Panchayat/respondent no.4 and respondent no.3, the respondent no.5, along with his family members had filed a Civil Suit as noted (Regular Civil Suit No.100/2016/C) asserting the very same contention which had attained finality in the 1967 suit and in such suit an interim application for a temporary injunction, has been filed which has remained pending. The next submission as made on behalf of the petitioner is that respondent no.5 has also approached this Court in Writ Petition No.238 of 2018 praying for a Writ of mandamus namely for the same relief as prayed for in the suit and similar pursuing a cause of action being pursued in the suit earlier. It is submitted that the said petition was not entertained and disposed of by the Division Bench of this Court on 28 February 2010 by passing following order which reads thus:-

“1. Heard the learned Counsel for the petitioners.

2. The averments in the petition disclose that the petitioners and the private respondent are coowners of the plot in question and Regular Civil Suit No.100/2016/C is pending before the Court of Civil Judge, Junior Division, Panaji. The respondent has also filed a counter-claim therein seeking declaratory right, while the petitioners have sought a permanent injunction. During the pendency of such a civil suit wherein the counter-claim has been filed, the petitioners are seeking action of demolition.

3. Considering the fact that the disputed questions are involved regarding title of the petitioners and the suit is pending between the parties, it is not a case of grant of writ of mandamus sought for by the petitioners.

4. Keeping contentions of all the parties open to be considered in the civil suit, the writ petition is disposed of.”

13. Learned Counsel for the petitioner would hence submit that once the suit itself was pending it was not appropriate for Member Secretary of the GPPDA and also Town and Country Planning to pass an order which would have a bearing on the title of the said property when the issue was sub-judice before the Civil Court in which also a counterclaim was filed by the petitioner.

14. Prima facie, I find merit in the submission as urged on behalf of the petitioner. A perusal of the final notice as also perusal of the impugned order would clearly indicate that there are observations which are made in respect of the title of the suit property which itself is the subject matter of the pending proceedings in the suit as observed above. It is difficult to countenance that as to how in the proceedings under Section 52 of the TCP Act such observations can be made and more particularly when there are materials on the prior litigation, which ought to have been considered. Also due regard ought to have been given to the fact that the parties are already before the Civil Court on the issues which would have serious bearing on the present dispute between the parties. However, today it would be pre-mature to assume as to what would be the outcome of the proceedings of such pending Civil Suit and as to whether the petitioner is correct in her contention or respondent no.5 is correct in his contention in regard to ownership rights in respect of the house and the land situated at survey no.61/7 would be decided by the Civil Court.

15. In the above circumstances, it would not be of any consequence that the impugned orders are kept suspended, as such order ought not to influence any decision making process in the suit. In any event it has been stated on oath by the petitioner that impugned order dated 14 December 2021 passed by the Town and Country Planning Board has not been issued and has not been officially served on the petitioner and it was obtained only under RTI. If that be so, the situation is squarely covered by decision of the Supreme Court in Pimpri Chinchwad New Township Development Authority Vs Vishnudev Cooperative Housing Society, (2018) 8 SCC 215 [LQ/SC/2018/947] in which, the Supreme Court has held that once a decision is taken by competent authority it is required to be communicated to person concerned by Government, without which it cannot be held that the order was legally issued.

16. As a sequel to the above observations,the petition needs to be disposed of by the following:

"ORDER

i. The final notice dated 16 July 2020 and consequent order passed by the Chief Town planner (Planning and Member Secretary Town and Country Planning Board) dated 14 December 2021 are quashed and set aside.

ii. Complaint of the respondent no.5 is kept in abeyance which shall be decided subject to outcome of the pending suit being Regular Civil Suit No.100/2016/C.

iii. All contentions of the parties in respect of the pending Civil Suit are expressly kept open.

iv. It is clarified that the above observations are in the context of the present order only and that the Civil Suit shall be decided by the learned trial Judge independently on its own merits, uninfluenced by any of the orders passed either under Section 52 of the Member Secretary of the GPPDA and the impugned order dated 14 December 2021 passed by the Chief Town planner (Planning and Member Secretary Town and Country Planning Board) which already stand set aside.

v. Needless to observe that if there is any regularization application made by any of the parties, the same shall also be decided on its own merits."

17. Writ Petition is disposed of in the above terms. No costs.