GOA UNIVERSITY Vs. HAROON EBRAHIM
LAWS(BOM)-2017-4-237
HIGH COURT OF BOMBAY
Decided on April 27,2017

Goa University Appellant
VERSUS
Haroon Ebrahim Respondents

JUDGEMENT

Nutan D. Sardessai, J. - (1.) The appellants who are the original defendants are challenging the order dated 24.06.2016 passed by the District Judge-1, North Goa Panaji, pursuant to which he allowed the respondent no.1's application for temporary injunction and restrained the appellants, their agents, servants etc., from blocking and obstructing the suit access as shown in the Plan.
(2.) Mrs. A. Agni, learned Senior Advocate for the appellants adverted to the pleadings in the plaint and raised a question whether the conduct of the plaintiff was at all equitable to grant the relief of injunction as prayed for. She adverted to the various correspondence forming a part of the proceedings and submitted that there was no right of easement spelt out by the plaintiff to entitle him to an access through the property of the appellantsdefendants. The letter dated 9.5.1990 did not spell out any such right of easement nor was there any admission at their instance of providing the access in the letter dated 16.5.1990. The letter of the appellants dated 25.7.1992 was in respect of the proposal for the construction of a periphery road. The report drawn by the Government also referred to the alignment of the periphery road bypassing the University as also given by the appellants and which again did not make any reference to the existence of a traditional road. Besides, the letters dated 14.3.1996, 16.5.1996 and 21.4.1997 made a reference to the NOC to be issued to the office of the Assistant Engineer, PWD for the portion of the road proposed to be constructed in his property and that the appellants had no objection for the construction of a periphery road but again without a reference to the existence of any traditional access as claimed by the plaintiff. The letter dated 26.8.1997 addressed by the Assistant Engineer, PWD to the plaintiff also referred to the construction from the main road to the plaintiff's plot while the letter of the plaintiff to the Assistant Engineer, PWD dated 22.9.1997 sought for information regarding the width of the periphery road. The letter of the plaintiff to the Chief Engineer, PWD dated 16.2.1998 conveyed the intention of the plaintiff to bear the costs of construction of the peripheral road but without referring to the traditional access through the property of the defendants.
(3.) Mrs. A. Agni, learned Senior Advocate for the appellants also invited attention to the report of the PWD dated 10.4.2012 which again referred to the peripheral road without any reference to the traditional access as also the letter of the Executive Engineer dated 16.9.1998 addressed to the plaintiff wherein again a reference was made to the work of the peripheral road being undertaken by the PWD on receipt of the entire costs and without a reference to any traditional access. She referred to the letter of the Executive Engineer addressed to the appellants dated 2.3.2000 which once again made a reference to the construction of the peripheral road along the boundary for the security of its inmates and once again reiterating the necessity of the construction of a peripheral road. The respondent-plaintiff had not taken any action in respect of the peripheral road from 2005 till 2015. A reference was also made to the letter of the respondent-plaintiff addressed to the appellants by which he had conveyed his intention to carry out the development and agricultural activities for which he needed an access to his property meaning thereby that there was no activity whatsoever carried on in the plaintiff's property unlike his case to the contrary till the year 2011. Rather, she invited attention to the appellants' letter dated 26.7.2011 pursuant to which they had made it abundantly clear to the respondent-plaintiff that the land of the appellants shall not be spared to construct a road to provide an access to his private property and which letter was not produced by the respondent-plaintiff at the time of filing of the suit.;


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