DEO MAHADEO DEVASTHAN Vs. STATE OF GOA

JUDGEMENT

(1.) This appeal arises out of Order dated 23/12/2020 passed by the Court of District Judge-2, South Goa, Margao, whereby, an application for temporary injunction filed on behalf of the appellant (original plaintiff) has been rejected.

(2.) The facts leading to filing of the present appeal are: that according to the appellant, the respondent no. 5 has been illegally using part of property belonging to the appellant in survey no. 448/8 at village Cacora Taluka Quepem to access his property at survey no. 448/11, while undertaking construction of a residential project. It is contended that there is no access to the said property in survey no. 448/11 available to the respondent no. 5 through the aforesaid small portion of the property belonging to the appellant in survey no. 448/8. The appellant had approached this Court by filing Writ Petition No. 511 of 2019, since its complaint with regard to the aforesaid grievance was not being decided by the concerned authority. This Court disposed of the said Writ Petition on 23/7/2019, by directing the concerned authority to consider the complaint of the appellant and to dispose of the same after hearing the rival parties. The concerned authority i.e. the respondent no. 2-Deputy Town Planner heard the rival parties and passed an order dated 29/8/2019, holding that there was no illegality in the construction undertaken by respondent no. 5 as it was approved by the Town and Country Planning department and subsequently by the Municipality by issuance of construction licence. With regard to the dispute raise by the petitioner regarding access, it was directed that the grievance could be raised before the competent authority for redressal.

(3.) It is in this backdrop that on 27/12/2019, the appellant filed a suit for declaration, permanent and mandatory injunction against the respondents herein. The appellant sought declaration in respect of orders dated 11/1/2018, 29/8/2019 and 16/12/2019, passed by the respondent-authorities as being illegal, null and void. It was contended that the said orders approving the plans while granting permission for construction project and also disposing of the complaint of the appellant were illegal and unsustainable. Consequently, the appellant sought injunction restraining the respondent no. 5 from carrying out construction in the property at survey no. 448/11, by using access from the property of the appellant at survey no. 448/8. The appellant also sought a declaration that the respondent no. 5 did not have any easementary right of way through the property belonging to the appellant in survey no. 448/8. In this suit, the appellant also filed an application for temporary injunction, seeking an order restraining the respondent no. 5 from using any part of the property in survey no. 448/8, to access its property at survey no. 448/11, for the purpose of construction.