TMI Blog2012 (9) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner to the land in question. Certain activities were, however, undertaken on the said land on 2nd January, 2011 and the inquiries made on behalf of the petitioner indicated that alongwith a project of beautification of the adjoining Miramar lake a project to develop the open land in question was proposed to be undertaken. Specifically, a jogging track, walk ways, recreational centres etc. were proposed. According to the petitioner, further inquiries revealed that such developmental work on the land was proposed to be undertaken at the instance of the respondent No. 3 who is the local Municipal Councilor and, in fact, a Government Order dated 30th June, 2010 had been passed in the matter by the Principal Chief Engineer, Public Works Department, Government of Goa. The petitioner had also averred in the writ petition filed, that the very first stipulation in the order dated 30th June, 2010 required that tenders in respect of the developmental work on the land shall not be issued unless the land itself is acquired. However, without initiating any proceeding to acquire the land, a tender was floated sometime in September, 2010 and the respondent No. 4 was awarded the Work O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e elders, was estimated to cost around ₹ 2.92 crores. It was specifically stated in the affidavit of the State, that the work had already commenced and almost 14% thereof had been completed. In para 14 of the affidavit it was stated that in terms of the decision of this Court in Chet Ram Vashist v. Municipal Corporation of Delhi[(1995) 1 SCC 47], the petitioner has ceased to be the legal owner of the land and its position was that of a trustee holding the land for the benefit of the members of the Housing Society and the public at large. The petitioner had no right to use the land for any developmental work or to transfer or sell the same; it was merely a trustee of the land holding the same for a specific purpose i.e. beneficial utilization as an open space by the community at large. In a situation where the petitioner had done nothing to develop the open space for the public good, the Government had decided to step in and carry out the project for the benefit of the residents. 6. In the affidavit filed by the respondent No.2 Commissioner of the Municipal Corporation, Panaji, a claim that the open space had vested in the Corporation had been raised whereas in the aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the Writ Court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated. 9. However, there is no universal rule or principle of law which debars the Writ Court from entertaining adjudications involving disputed questions of fact. In fact, in the realm of legal theory, no question or issue would be beyond the adjudicatory jurisdiction under Article 226, even if such adjudication would require taking of oral evidence. However, as a matter of prudence, the High Court under Article 226 of the Constitution, normally would not entertain a dispute which would require it to adjudicate contested questions and conflicting claims of the parties to determine the correct facts for due application of the law. In ABL International Ltd. Anr. V. Export Credit Guarantee Corporation of India Ltd.[ [2004 (3) SCC 553]], the precise position of the law in this regard has been explained in paragraphs 16, 17 and 19 of the Judgment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons. 15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit. 17. The above judgment of Gunwant K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch circumstances, it was incumbent on the High Court to undertake a deeper probe in the matter in order to find out whether the claim of the Corporation had any substance or had been so raised merely to relegate the Petitioner to a more lengthy, dilatory and expensive process that is inherent in a civil suit. The High Court, in our considered view, ought not to have disposed of the Writ Petition at the stage and in the manner it had so done and, instead, ought to have satisfied itself that there was actually a serious dispute between the parties on the question of ownership or title. Only in that event, the High Court would have been justified to relegate the Petitioner to the Civil Court to seek his remedies by way of a suit. 11. On the view that we have taken, we have to conclude that the impugned order dated 18.08.2011 passed by the High Court is not tenable in law. However, having arrived at the aforesaid conclusion the next question that has to engage our attention is what would be the appropriate order in the facts and circumstances of the case? 12. In the counter affidavit filed before this Court, the Respondent claims that about 40% of the work has been completed an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
