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2009 DIGILAW 958 (BOM)

Miss Samira R. Gauns v. Chandrakant S. Paryekar

2009-07-31

A.H.JOSHI

body2009
JUDGMENT Joshi, J.-Rule. Rule is made returnable forthwith and is heard by consent. 2. Petitioner herein who is herself practicing Advocate had approached this Court by filing Writ Petition No. 770/2008 and had claimed that she should be heard before the Municipal Council who was in the process of considering the respondent No. l's claim for regularization of illegal construction. 3. In the said Writ Petition No. 770/08, present respondent No. 1 was respondent No.4, and this Court disposed of said Writ Petition at the motion hearing without notice to respondent No.4. 4. Present petition was heard by the Municipal Council in the light of order passed by this Court. 5. The Municipal Council passed order on 29.12.2008 and directed that the illegal construction belonging to present respondent No. 1 shall be demolished by her and in event of her failure it would be done by the Council at her cost etc. 6. Present respondent No. 1 has preferred an appeal which is pending before the Goa Municipalities Appellate Tribunal as Municipal Appeal No. 1/2009. 7. In the said appeal present petitioner filed Misc. Application No. 14/2009 seeking leave to intervene and to be heard, and said application has been rejected by order dated 3.3.2009. 8. The present petition is filed against the said order rejecting leave to intervene and while doing so the Appellate Authority has held as follows : "3. .......................... The Applicant has no right to the property in which the construction is done. The Applicant had been heard by the Respondent before passing of the impugned order since the proceedings were initiated by Respondent at the instance of Applicant and with the passing of the impugned order the work of the Applicant is over. The Applicant has no direct interest in the subject matter of the appeal. The demolition order in pursuance to complaint of Applicant is not a matter which affects the legal rights of Applicant. Although Applicant is interested in supporting the Respondent and sustaining the demolition order that does not amount to any legal interest in subject matter in the sense that the order if any passed in favour of Appellant or against the Appellant would be binding against the Applicant. (Quoted from para 3 of order dated 3.3.2009 from pages 48 & 49 of paper book) 9. (Quoted from para 3 of order dated 3.3.2009 from pages 48 & 49 of paper book) 9. This petitioner has been vehemently argued placing reliance on unreported judgments of this Court rendered in Writ Petition No. 255/2009, and in Writ Petition No. 371/2006. This Court has perused both these judgments, and is of the view that the judgment in Writ Petition No. 371/2006 dated 6.9.2006 does not render any assistance to the petitioner rather certain observations made therein are directly against the interest of the petitioner. 10. In order to ascertain nature of right of the petitioner, this Court had called upon the learned Advocate for the petitioner to tender for the perusal of the Court a copy of application tendered by the petitioner initially before the Municipal Council on the basis of which petitioner herein had claimed to be heard. 11. Learned Advocate for the petitioner has tendered for perusal of Court a copy of petitioner's application dated 26.12.2008, as well as copy of Misc. Application No. 14/2009 filed before Appellate Authority, which this Court has perused. Contents of both these applications are totally silent on the point of any violation done by respondent No.1 invading personal legal right of the petitioner. 12. Mr. Bhobe learned Advocate, on a queries conceded the position that the petitioner is not a owner of adjoining property, and she is not affected in her personal property right and the petitioner does not have any personal interest or prejudice due to any illegality of the construction complained of. Petitioner's grievance is in public interest and she is pursuing the cause as a whistle blower. 13. In order to test genuineness of the role of the petitioner as a whistle blower, this Court has tried to ascertain from record and by exploring from learned Advocate Shri Bhobe as to what is the nature of illegality in the construction. Answer which is given is that illegal construction is done without securing licence to construct. 14. Any citizen could be regarded as interested person and may in public law seek intervention, if any construction is contrary to development control regulation or any law in that regard, and if such illegality affects rights and concession enjoyed or enjoyable by members of public at large, where the person undertaking such illegal construction has invaded the rights of other persons enjoying a right in rem. Such right may be available notwithstanding that such person may or may not have personal vested - legal right in the property subject matter or appurtenant thereof or otherwise benefiting therefrom. 15. Illegalities could be of different nature such as that those could be compoundable and one which cannot be compounded. 16. Petitioner's exercise of claim for hearing in the present matter is thus for motive which are undisclosed. The petitioner does not claim that the illegality is of uncompoundable nature, such as by way of encroachment on public road or some illegality of the said class. Had it been so it would have altered petitioner's status from a busy body to that of whistle blower. 17. Unfortunately for the petitioner, she has failed to classify herself to be superior of whistle blower and lands in a class of agiters who would be dislike by the Court. 18. The petitioner has failed to prove her intervention to be for public cause and in the interest of public law. Therefore, the petition fails. Rule is discharged with costs. Petition fails.