Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 1231 (BOM)

Bal Ganesh Mandir Association v. State of Goa

2012-07-09

A.P.LAVANDE, U.V.BAKRE

body2012
Judgment :- U.V. Bakre, J. Heard learned counsel for the parties. Rule. By consent heard forthwith. 2. By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioners have prayed for an order to quash and set aside the order dated 17/6/2011 passed by the Respondent no. 3 and to declare that the action of Respondent no. 2 is illegal, arbitrary and ultra vires the provisions of the Goa Land (Prohibition of Construction) Act, 1985 ('The Act', for short) and the Constitution of India and to direct the Respondent no. 2 to consider the representation for regularization of the structure on the terms and conditions as deemed fit by the Respondent no. 2. 3. By the said order dated 17/6/2011, the Respondent no. 3, in exercise of the powers conferred under sections 4 and 6 of the Act, has directed the opponents who are 194 in number, all residents of PDA Colony, Alto Porvorim, Bardez-Goa, whose names are mentioned below the impugned order and which includes the petitioner no. 2, to demolish the construction of religious structure admeasuring 4.00 x 4.00 sq. metres, carried out by them in the property acquired by the Government bearing survey no.77/1 (part) of village Pilerne belonging to the North Goa Planning and Development Authority (NGPDA), within 48 hours of the receipt of the order. 4. The Petitioner no.1 is a registered Society, duly registered under the Goa Societies Act under No. 691/Goa/2011 and its members are the residents of PDA colony, Porvorim, Bardez-Goa and the Petitioner no. 2, who is one of the residents of said PDA colony, is the president of Petitioner no.1. According to them, there existed a temple of Lord Ganesh that was revered even prior to the development of the PDA colony and the said structure was in a dilapidated condition. Considering the sentiments of almost 800 residents/200 plots holders of the PDA colony, the residents of PDA colony had repaired the said temple, sometime in the month of December, 2009. The Petitioner no.1 was an unregistered association previously and due to increase in membership, the same came to be registered. After learning that the respondent no. 2 had complained about the said structure, alleging that the temple was built by unknown persons on the plot earmarked for market, the said 194 residents of PDA colony had made a representation dated 10/5/2011 to the respondent no. After learning that the respondent no. 2 had complained about the said structure, alleging that the temple was built by unknown persons on the plot earmarked for market, the said 194 residents of PDA colony had made a representation dated 10/5/2011 to the respondent no. 2 stating therein the background of the idol of Lord Ganesh and expressing their religious sentiments. Inspite of that, order dated 17/6/2011 was passed by the respondent no. 3 for demolition of the said structure without hearing the residents of the colony, members of the Petitioner no. 1 or the opponents mentioned in the said order. The said order is illegal and without jurisdiction. By letter dated 28/6/2011, the Petitioner no. 1 had requested the respondent no. 2 that the said idol of Lord Ganesh and the sanctum sanctorum was existing at the site since time immemorial and hence in accordance with the sentiments of the residents , it should remain at the same site. The Petitioners even offered to purchase the said land. On 21/8/2011, Gram Sabha of Village Panchayat of Pilerne resolved to regularize the said temple structure considering the public sentiments. On 13.09.2011, it was brought to the notice of respondent no. 2 that the said structure does not come within the purview of the judgment of the Hon'ble Supreme Court. On 28/9/2011, the Petitioner no.1 also requested to consider the earlier proposal made by letter dated 13/9/2011 and to allot land admeasuring 960 sq. metres for the purpose of temple. It was informed by respondent no. 2 that the representation of the Petitioners is under consideration and that the said structure would not be demolished. Legal opinion from the learned Advocate General was also taken, who opined that the judgment of Hon'ble Supreme Court was not applicable to the case of the Petitioners. The respondent no. 2 may at any time carry out the demolition who has summoned the demolition squad. 5. By order dated 16/4/2012, ad-interim relief of stay of the execution of the impugned order dated 17/6/2011 was granted. 6. During the course of hearing, the learned Advocate General on behalf of the respondents no. 1, 3 and 4, conceded that on 10/5/2011, representation was made by the said 194 opponents mentioned below the impugned order and though it was the basic duty of the Mamlatdar to hear all those opponents, they were not heard in the matter. 6. During the course of hearing, the learned Advocate General on behalf of the respondents no. 1, 3 and 4, conceded that on 10/5/2011, representation was made by the said 194 opponents mentioned below the impugned order and though it was the basic duty of the Mamlatdar to hear all those opponents, they were not heard in the matter. The learned Advocate General, therefore, stated that they will serve all those 194 opponents who are residents of PDA colony and that the Mamlatdar would pass appropriate fresh order only after hearing them. He stated that even the intervenors would be heard. 7. It so happens that the Intervenors had filed Writ Petition no.718/2011 in this Court and on 22/3/2011, the learned Government Advocate, Mr. M. Salkar made a statement that the Mamlatdar of Bardez had instructed him that the construction that is put up on survey no.77/1 of Pilerne village of Bardez Taluka would be demolished within a period of four weeks from that day. Accepting the said statement as an undertaking to this Court, Writ Petition no.718/2011 was disposed of on 22/3/2012. 8. Mr. J. A. Lobo, the learned Counsel for the Intervenors, has submitted that the Petitioners or the said 194 opponents have no right to be heard. He contended that the present petition nowhere states as to who has made the said construction and there is no averment in the petition that the petitioners have done the said construction. He pointed out that the Petitioner no.1 has come into existence after the order of the Mamlatdar which is dated 17/6/2011 and therefore, the Petitioner no.1 cannot claim a personal hearing. He argued that the petitioners have not averred that they have contributed to the construction of the said structure and they appear to be only a group to protect the structure. He invited our attention to the impugned order which shows that the said area upon which the religious structure has been constructed belongs to NGPDA and was reserved for market as per the approved plan. According to Mr. Lobo, the impugned order passed on 17/6/2012 was served on the respondent no. 2 only on 1/7/2012, but due to political patronage enjoyed by the Petitioners, the said order has not been executed as yet. According to Mr. Lobo, the impugned order passed on 17/6/2012 was served on the respondent no. 2 only on 1/7/2012, but due to political patronage enjoyed by the Petitioners, the said order has not been executed as yet. He submitted that considering the view of the Hon'ble Supreme Court on unauthorized construction of religious structures and the circular of the Government itself, the said action of demolition was taken. He further pointed out that the representations which were made by the petitioners to NGPDA have been rejected and therefore, some third person cannot come and ask for regularization and for right to be heard. According to learned Advocate for the Intervenors, this is unknown in law. He further contended that F.I.R has been registered under the Act on a complaint filed by NGPDA against unknown persons. He, therefore, vehemently contended that the petitioners have no right to be heard in the matter. 9. On the other hand, Mr. V. A. Lawande, learned Advocate on behalf for the petitioners, in the first place, contented that the Intervenors can either support the petitioners or the respondents and they cannot have their own case. He argued that since in the present case the respondents are ready for giving hearing to the Petitioners and the opponents named in the said impugned order, the intervenors have no right to contend that they have no right of hearing. Learned counsel for the petitioners argued that the Mamlatdar has no jurisdiction under the Act. He pointed out that in the impugned order itself, the Mamlatdar has stated that the construction has been carried out by the opponents. However, surprisingly, no hearing was given to the said opponents. He then invited our attention to various paragraphs of the petition wherein background of the said religious temple has been given and averments about sentiments of the people and various representations for regularization, purchase of the land, etc. have been made. He invited our attention to representation dated 10/5/2011 which has been made by all the 194 residents of PDA colony; request dated 28/6/2011 made for purchase of that land; and request dated 28/9/2011 made to the NGPDA for allotment of 960 sq. metres of land in favour of Petitioner no.1. have been made. He invited our attention to representation dated 10/5/2011 which has been made by all the 194 residents of PDA colony; request dated 28/6/2011 made for purchase of that land; and request dated 28/9/2011 made to the NGPDA for allotment of 960 sq. metres of land in favour of Petitioner no.1. He invited our attention also to the opinion given by the then learned Advocate General stating that the order of the Hon'ble Supreme Court does not cover the present land and that it is for the Authority to take appropriate decision whether to accede to the request of the applicant to transfer the area to the applicant on payment of compensation in accordance with the rules, if any, governing this aspect. He contended that the principles of natural justice would require that the Petitioners and the said 194 opponents be heard before any coercive action is taken. He submitted that this is not a illegal house of some individual, but is a religious temple for the community at large. 10. We have gone through the material on record. We have also perused the material in Writ Petition no.718/2011 which was filed by the Intervenors. We have also perused the records in connection with Case No.MAM/BAR/GLPC-1995/5/2011, placed before us by the respondent no.3. 11. The Petitioners in the present Writ Petition were not parties to the said Writ Petition no.718/2011. The Petitioners in the said Writ Petition no. 718/2011 are four residents of the said PDA Colony, Alto Porvorim, Bardez-Goa, who are the Intervenors in the present Writ Petition. The opponents named in the impugned order dated 17/6/2011 are 194 in number, who are also the residents of same PDA colony. A perusal of the impugned order dated 17/6/2011 reveals that the said 194 residents of PDA colony were not heard, though the learned Mamlatdar has stated in the order that the construction of said structure was illegally done by the opponents. In the interest of justice, the said opponents, in our considered opinion, were bound to be heard. The learned Advocate General on behalf of the respondents no. 1, 3 and 4 has fairly conceded that the Mamlatdar ought to have given hearing to all the opponents. In the interest of justice, the said opponents, in our considered opinion, were bound to be heard. The learned Advocate General on behalf of the respondents no. 1, 3 and 4 has fairly conceded that the Mamlatdar ought to have given hearing to all the opponents. He has stated that it was the basic duty of the Mamltadar to hear these 194 persons who had made representation dated 10/5/2011 and that they will serve all the said 194 residents of PDA colony and would pass fresh order after hearing them. The learned Advocate General has also stated that if the Intervenors so wish, then they would also be heard. 12. In view of the statement made by the learned Advocate General and the fact that the 194 residents of PDA colony including petitioner no.2 who were opponents in the proceedings before the Mamaltdar were not heard, the impugned order is liable to be quashed and set aside. 13. In the result, therefore, the impugned order dated 17/6/2011 is quashed and set aside. The respondent no. 4 shall serve all the said 194 opponents named below the impugned order and give them appropriate hearing. The Mamlatdar shall also hear the petitioners as well as Intervenors. The Mamlatdar shall also decide the issue of jurisdiction. The Respondent no. 3 shall dispose of the proceedings within a period of ten weeks from today in the light of the observations made above 14. Rule is made absolute in aforesaid terms, with no order as to costs.