RAUL PRAZERES Vs. STATE OF GOA

JUDGEMENT

(1.) Heard Shri Sudesh Usgaonkar, Learned Counsel appearing for the petitioner, Shri S. Narvekar, learned Additional Government Advocate appearing for respondents No. 1 & 2, Shri D. Pangam, Learned Counsel appearing for respondent No. 3 and Shri M.B. Da Costa, learned Senior Counsel appearing for the intervenor. The above petition challenges an order passed by the respondent No. 2 dated 9/12/2005 whereby the petitioner was directed to demolish the disputed structures in the property surveyed under No. 266/2 of Mandrem village.

(2.) Briefly, the facts of the case as stated by the petitioner are that the respondent No. 3 on 10/08/1992 issued a permission to the predecessor in title of the petitioner for reconstruction of the existing old house bearing No. 435, 435/4, 435/5 and 435/6 in the property surveyed under No. 266/2 at Mandrem village. On 5/01/1993, the respondent No. 3 issued a reconstruction permission to the said predecessor in title for reconstruction of the existing old house bearing No. 435/1 in property surveyed under No. 266/2. Thereafter, another permission was granted to said Surendra Desai on 7/08/1993 for reconstruction of the existing old house bearing No. 435/3 in the said property. An agreement came to be entered by the petitioner to purchase the said property bearing survey No. 266/2 on 28/09/1993 along with the structures therein from Umabai S. Dessai and others through the power of attorney holder said Shri Surendra S. Desai. The hotel of the petitioner came to be registered under the Tourist Act, 1982 on 31/10/1997. A 'No Objection Certificate' also came to be obtained from the respondent No. 3 for running bar and restaurant on 21/05/2000 together with an excise permission from the Excise Department on 17/01/2001. On 17/05/2001, the respondent No. 3 issued a show cause notice to the petitioner as to why the unlawful construction should not be demolished. Another notice was issued on 17/05/2001 for illegally putting up a compound wall. A Panchayat Appeal was filed by the petitioner before the Director of Panchayat challenging the said notice on 19/04/2002 wherein the said appellate Authority directed to maintain status quo by order dated 19/04/2002. The respondent No. 2 issued a notice to the respondent No. 3 under Section 5 of the Environment (Protection) Act, 1986 to take action against the disputed structures of the petitioner. An inspection was carried out on 27/12/2003 by the respondent No. 3 in the presence of the petitioner. On 10/03/2004, the petitioner received the notice for disconnection dated 4/03/2004 stating inter alia that electrical connection was liable to be disconnected. A reply was filed by the petitioner on 11/03/2004 and thereafter a Writ Petition No. 167/2004 was filed before this Court. On 1/04/2004, the order dated 17/02/2004 passed by the respondent No. 2 was set aside by this Court and consequently respondent No. 2 conducted a hearing when the petitioner filed an affidavit in evidence to the show cause notice dated 17/02/2004. On 20/08/2004 additional documents were filed by the petitioner and thereafter an order was passed on 26/10/2004 directing the demolition of the petitioner's structure. Writ Petition No. 516/2004 came to be filed before this Court challenging the said order dated 26/10/2004 which came to be disposed of after setting aside the impugned order and remanding the matter to the respondent No. 2 with the direction to dispose of the case on or before 31/05/2005. Thereafter, on 9/12/2005, after conducting such further inquiry the impugned order was passed directing demolition of the structures of the petitioner.

(3.) During the course of the hearing of the above petition Shri Sudesh Usgaonkar, Learned Counsel appearing for the petitioner has taken strong objection to the manner in which the impugned order was passed by the respondent No. 2 essentially contending that the petitioner had produced house tax receipt in respect of the disputed structure together with other material to establish the existence of such structures prior to the relevant date of 1991. The Learned Counsel has further pointed out that during the pendency of the earlier petition before this Court the petitioner had also filed an application to produce a copy of the power of attorney issued in favour of the predecessor in title Shri Surendra Desai, which according to him reflects the existence of the structures on the recitals of the said power of attorney. The Learned Counsel further points out that the application filed by the petitioner was rejected by this Court and that a Special Leave Petition was filed before the Hon'ble Supreme Court challenging the order passed by this Court dated 1/04/2005. The Hon'ble Supreme Court disposed of the said Special Leave Petition by order dated 16/10/2006 in petition for Special Leave to Appeal No. 8599/2005. The Hon'ble Supreme Court permitted the petitioner to renew their request as in the meanwhile the earlier petition came to be disposed of by this Court. As such, the petitioner also seeks to rely upon the said power of attorney in support of their contention that the disputed structures were in existence prior to the year 1991. The Learned Counsel has thereafter taken me through the impugned order passed by the respondent No. 2 and pointed out that the documents of house tax produced by the petitioner were not considered by the respondent No. 2 essentially on the ground that mere production of such house tax receipts would not establish the existence of the structures prior to the year 1991. The Learned Counsel has pointed out that such stand on the part of the respondent No. 2 is erroneous and contrary to the well settled principles as the only aspect to be considered is whether such disputed structures were in existence prior to 1991. The Learned Counsel further pointed out that the power of attorney also discloses that as on the date therein the disputed structures were in existence. The Learned Counsel, as such, submits that respondent No. 2 has erroneously considered the matter without following the well settled principles of law in deciding such disputes.