9911796707
TMI Blog2014 (4) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. It is the contention of respondent No. 1 that this road (hereinafter called as suit road) providing access to the suit property is in existence even before the property through which it passes was acquired by the State Government for the development of the industry in the State of Goa. Before obtaining necessary licence for construction, predecessor in title of respondent No. 1 had obtained NOC from the petitioner for use of the suit road as an access for the suit property. Respondent No. 1 contends that he has acquired an easement of necessity and also by grant in respect of the suit road. However, it was noticed by respondent No. 1 that the petitioner commenced work of digging of trenches on the western boundary of the suit plot but in it's land in the last week of October, 2010 in order to construct masonry wall to enclose the boundary. At that time, it was assured that the suit road, which is 6 metres wide, providing access to the suit property, would be left open. However, later on with oblique motive and illegal intention, the petitioner dumped construction material on the suit road so as to block the access to the suit property. 5. Left with no option, respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order that the learned Ad hoc District Judge, while rejecting the application has given the reason that once notice was dispensed with in exercise of power under section 80(2) of CPC, it could be presumed that Court has impliedly granted leave to institute the suit and that notice under section 52-A GID Act was also deemed to have been waived after the authority chose to contest the suit on merits. 11. Learned Counsel for the petitioner submits that under the law there is no deemed waiver as the provisions of section 80 CPC are not analogous to provisions of section 52-A of GID Act. In support, he places reliance upon the judgment of this Court rendered in the case of (Syed Abdul Razzak v. Maharashtra State Board of Wakfs), reported in 2009 B.C.I, (soft) 3(A.B.) : 2009(111) Bom.L.R. 3609. 12. Learned Counsel for respondent No. 1 submits that the provisions of section 80 CPC and section 52-A GID Act may not be comparable with each other and, therefore, there may not be any deemed waiver of the notice required under section 52-A, but, the fact remains that the conclusion reached by the Lower Court is neither perverse nor against the well settled principles of law and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 80. 14. Once we find that section 80 CPC and section 52-A GID Act bear no similarity with each other, there can be no question of applying the principle of deemed waiver of the notice required under section 52-A of the GID Act. In the case of Syed Abdul Razzak (supra), learned Single Judge of this Court dealing with a similar question regarding requirement of mandatory notice to institute a suit under section 89 of the Wakf Act, 1995, held that there being no similarity and analogy between section 89 of the Wakf Act, 1995 and section 80 of CPC, there is no concept of deemed waiver of the notice under section 89 of the Wakf Act and same cannot be imported thereunder. The view so taken commends to me. 15. Learned Additional District Judge, has, therefore, incorrectly found that the notice under section 52A has been deemed to be waived in the facts and circumstances of the case. He is not also right when he says that once the authority i.e. the petitioner has contested the suit on merits, it could not complain later on of non-service of notice under section 52-A as petitioner would De deemed to have waived the notice. Requirement of section 52-A, one need not say are mandatory, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that while deciding an application under Rule 11(d), Order 7 CPC, Court cannot go beyond the averments made in the plaint and cannot decide the disputed questions of facts or law at that stage. In the instant case, the dispute between the parties is about illegally blocking the suit road providing access to the suit property. Respondent No. 1 is claiming easement of necessity and easement by grant in respect of suit road and it is it's case that same is being denied to it. On the other hand, it is the contention of the petitioner that what it is doing is on its own property and in exercise of it's powers and functions as provided under the various provisions of the GID Act. These rival contentions disclose that the question whether the acts complained of in the suit are within the scope and ambit of the provisions of the GID Act or beyond that is a disputed question, which cannot be resolved by mere reference to pleadings in the plaint. Such a dispute cannot be decided only by considering the averments made in the plaint. Therefore, I am of the view that merely on the basis of statements made in the plaint, it cannot be said that section 52-A GID Act was applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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