- (1.) 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.;