Smt. R.S. Dalvi, J.
Rule. Rule made returnable forthwith. Heard by consent.
2. This PIL Writ Petition is filed by the petitioner who is an Advocate practising in this Court as a public spirited citizen to challenge the order of respondent No.3, Administrative Tribunal (allowed to be deleted vide order dated 22/10/2013), dated 27th September, 2012, regularising the encroachment of respondent No.4 and also for removal of the said encroachment and for an order restraining respondent No.4 from alienating the encroached property and using the same for any purpose.
3. The petitioner has set out how respondent No.4 came to encroach and consequently came to be in possession of the disputed property. It was initially an open land. Respondent No.4 put up a shed under the umbrella of a resolution passed by respondent No.1, permitting construction on an area of 9 x 11 metres (99 sq. metres) in survey No.366/6 of Village Sucorro for an annual rent of Rs.600/-. Respondent No.4 was leased an area of 111.97 sq. metres to build and utilize the disputed property for an annual rent of Rs.75/- as per the Special General Meeting of respondent No.1 dated 22nd February, 2004.
4. The petitioner claims that this resolution and the grant are contrary to the Code of Communidades and undertaken without following due legal procedure set out thereunder.
5. The petitioner has also claimed that thereafter on 17th April, 2005, respondent No.1 issued a show cause notice upon respondent No.4 who was carrying on cement business in the open space of the disputed property to direct its removal.
6. This prompted respondent No.4 to file Regular Civil Suit No.81/05/F in the Court at Mapusa to restrain respondent Nos.1 and 2 from demolishing the structure of respondent No.4 and interfering with his peaceful possession and his business activities therein. The petitioner claims that in the guise of the suit being filed and presumably an interim injunction being obtained for protection of his possession, respondent No.4 put up a pucca construction of commercial shops in the open space of the disputed property. The encroachment of respondent No.4 consequently increased to 599 sq. metres, pending the suit.
7. A judgment and decree came to be passed against respondent Nos.1 and 2 on 28th October, 2010 in the aforesaid suit, restraining respondent Nos. 1 and 2 from interfering with the possession of respondent No.4 otherwise than by following due legal process. Hence, a blanket injunction prayed for by respondent No.4 was not granted. Only the claim of possession came to be seen. Since respondent No.4 was found to be in possession, which is an admitted fact, his possession could not be disturbed and he could not be dispossessed, without following due legal process.
8. Consequently, on 23rd October, 2011, respondent No.1 called upon respondent no.4 to clear the unauthorized construction and the structure of respondent No.4, failing which action would be taken. The notice shows that respondent No.4 was unauthorisedly occupying the land of respondent No.1, dumping his materials and had fenced it without permission of respondent No.1.
9. Resplendent No.4 by his letter dated 9th November, 2011, addressed to respondent No.1, applied for regularisation of his unauthorised occupation. This regularisation was sought under Article 380 of the Code of Communidades dated 5th April, 1961 (the Code). Respondent No.4 claimed that there was a 4 metres deep abandoned stone quarry therein. He set out that he had developed the unused land admeasuring 599 sq. metres and he was ready to pay compensation at the rate fixed by the Government, as also pay the pending dues for last 20 years, as he did not want to cause loss to the Communidade.
10. On 4th December, 2011, the General Body of respondent No.1 resolved to approve the application of respondent No.4 and sought consent of respondent Nos.2 and 3. On 15th July, 2012, it wrote to respondent No.4 offering to regularise the unauthorised occupation of respondent no.4 in the entire disputed property which included unauthorisedly constructed shops under Article 380(2) of the Code.
11. Respondent No.4 sought final possession of the encroached area on 30th September, 2012.
12. Respondent No.1 has accepted Rs.3,41,320/- at the rate of Rs.570/- per sq. metre for the land unauthorisedly occupied by respondent No.4 and Rs. 17,071=50 towards the arrears of forofor the last 20 years.
13. Despite this, respondent No.4 again sued respondent No.2 to grant final possession being Regular Civil Suit No.271/12/B and obtained a judgment and decree therein on 29th July, 2013.
14. It may be seen that the remedy claimed by respondent No.4 is erroneous. The mode of such claim made by respondent No.4 is contended to be dubious. The method adopted by respondent No.4 to claim title by the expression œFinal Possession? is not by any of the modes in which title of an immovable property can be claimed under the Transfer of Property Act 1882. Respondent No.4 was neither a lessee nor is the disputed property been sold by respondent No.1 at any time. Respondent No.4 initially sued for protection of his possession. It is important to note that he has himself applied for regularisation of his encroachment. This constitutes an admission on the part of respondent No.4 that his possession was initially illegal which could be regularised upon payment of charges as per the Code. Hence, respondent No.4 was admittedly an encroacher, the judgment of the Civil Court notwithstanding.
15. The petitioner has contended that the suits were collusive and an eyewash. What is material is that respondent No.4 applied for and, in fact, paid the charges for regularization of his encroachment. He claims the same under Article 380 of the Code. The relevant part of Article 380 reads thus:
œArt. 380 “ The encroacher may, at any stage of the administrative inquiry, sign a declaration undertaking to surrender the land or to pay its value, when it does not exceed 1800$....
§ 1. If the encroacher admits the encroachment of land, by undertaking to surrender the land, the administrator shall order that the attorney of the communidade, along with the clerk of the same, take possession of the said land, writing the competent report, which shall be incorporated in the file.
§ 2. The record in which the encroacher undertakes to pay the value of the land, shall not have any legal effect, without the approval of the Administrative Tribunal, on the basis of prior report of the administrator, after hearing the managing committee and the communidade which shall state whether it is convenient to restore the land to the communidadeor accept its value....?
16. The petitioner contends that the application for regularisation and the payment of the alleged value of the land made by respondent No.4 is under the Article of the Code that does not even apply to him as an encroacher. Indeed, Article 380 is in respect of surrender of land when it does not exceed 1800$ = present day Rs. 320/-.
17. The petitioner has drawn our attention to Section II of the Code relating to encroachment discovered while making the survey and comprising of Articles 385 to 389, relating to measurement, demarcation and evaluation of the lands encroached, valuation of the land and payment of price thereof by the encroacher. The relevant Articles read thus:
œ Section II
Encroachment discovered while making the survey
Art. 385 “ The personnel entrusted with the work of organizing the cadastral survey, referred to in the articles 210 and 211, shall measure, demarcate and evaluate, along with the lands in possession of the communidades, any lands that they think must have been encroached, in view of the measurement of its field, if any, and grant made by our government, emphyteusis granted by the communidade and adjoining private properties.
§ 1. ....
§ 2. ....
§ 3. ....
§ 4. ....
§ 5. ....
Art. 386 - ...
§ 1. The valuation shall be done based on the value of the land at the time of encroachment of land, and it will be paid in terms of article 387 and respective paragraphs.
§ 2. ¦
Art. 387 “ ...
§ 1. The price payable shall be the value of land, fixed as per paragraph 1 of article 386, plus 25% of this value.
§ 2. ¦.
§ 3. ¦..
§ 4. ¦.?
18. These Articles in respect of encroached lands of the Communidade require them to be measured, demarcated and evaluated. The valuation is at the price specified in the Code. It will have to be seen whether respondent No.4 has paid such valuation. The petitioner contends that the valuation put by the Communidade in collusion with respondent No.4 is a gross undervaluation. Article 386, in terms requires valuation of the land not at the time of encroachment of the land, but œbased on? the value at that time. The price payable would be such value of the land plus 25% of this value, which will be the penalty payable by the encroacher for making unjust enrichment of the Communidade land.
19. Since respondent No.4 applied for regularisation and his application has been considered showing him to be an admitted encroacher, the valuation of the land shown to be 599 sq. metres must be fixed based on the value at the time of encroachment along with the penalty of 25% thereon.
20. It is contended on behalf of the respondents that the encroachment was made long prior to the value being paid by construction of the shops in the area shown to be leased as also any further encroachment. This encroachment is shown to be made in 2007. The stop work notice of respondent No.1 dated 28th December, 2007 shows unauthorised construction of shops put up.
21. The Government of Goa, Revenue Department, Secretariat, has set out the revision of rates of the Communidade plots in its letter dated 4th October, 2006, addressed, inter alia, to relevant Administrators of Communidades. These rates are set out by way of revision of rates for grant of Communidade lands, with or without auction. The letter shows that the rates were fixed in 2003, which would be considered as base rates with an annual increase of 10% for fixing the present rates and, accordingly, in 2006 when the letter was issued, the land rates would be 130% of the rates given in the Notification of 2003 of the Revenue Department of the Government No. 28/1/97-RD(4231) dated 17/06/2003. This would be the fair rate payable by any encroacher who comes upon the Communidade lands.
22. Strangely, the Communidade- respondent No.1 herein itself contends that it is in its own interest to take offers of lesser value from respondent No.4 as it has done from other encroachers. It claims that it is difficult to receive rents from encroachers and it has decided in its own interest by way of General Body resolution that it would settle the disputes between itself and the encroacher without any litigation of the encroacher at a lesser value.
23. We may agree that a reasonably lesser valuation to regularise the encroachment which would be difficult to resolve in civil litigation may be in order. However, a public body which holds the Communidade land in trust and which is otherwise enjoined to grant land as specifically directed in the Code, would be transgressing its power of settling the disputes at gross undervaluation upon the premise of the pain of litigation and usual court delays. The petitioner, therefore, contends that this Court is enjoined to see that a fair valuation is obtained by the Communidade in the interest of its true beneficiaries.
24. The petitioner has produced three sale instances of neighbouring land of the years 2012-2013 to show the price prevailing at the time of valuation made and accepted by respondent No.1. It was on 28th October 2012. The three sale instances show land of 332 sq. metres sold for Rs. 50,00,000/- on 13th August, 2012; land of 456 sq. metres, sold for Rs.60,00,000/- on 13th November, 2013 and land of 500 sq. metres sold for Rs. 72,00,000/- on 26/8/2013. This would show rate of Rs. 15,060/-, 13,158/- and 14,400/- per sq. metre, respectively for the sale of the property in the locality.
25. The calculation of the value of the land in a fair manner is the usual mode for determining the entire valuation even for acquisition of property by the Government in the Land Acquisition References. Consequently, any other mode of valuation which would result in far lesser value would be eschewed by the Court.
26. It is contended on behalf of the respondents that the land is a quarry land and hence it is not equally valuable as would be other lands which are not undulated. Certain photographs have been shown of a part of the land claimed by respondent No.4 to show a deep quarry. In fact, respondent No.4 has claimed that the quarry is 4 metres deep in his application for regularization itself dated 9th November, 2011 which respondent No.4 has sought to develop. It is not known why respondent No.4 would seek to encroach upon such a quarry land if it was worthless. The fact that he has spent money to devlop the unused land shows that it has thereafter been a valuable land. In any event, if the land is worthless though developed, it is for respondent No.4 to surrender it to the Communidade under Article 380 cited above. The act of developing the property, seeking to regularise, offering payment and then claiming that it is not valuable, is an oxymoron in itself and cannot be countenanced by the Court. Respondent No.4 made his initial application for regularisation. It is for him to have regularised only part of the land which is available. Respondent No.4 can exercise his own option to surrender or regularise his encroachment. However, if respondent No.4 has sought to regularise and has not sought to surrender even the quarry land and claims possession of the entire encroached portion of 599 sq. metres despite the initial lease of only 99 sq. metres, respondent No.4 must pay the value as fixed by the Government for the Communidade lands under the aforesaid letter/order. Paying the valuation for grant of Communidade's land upon regularisation would be an effective grant, conferring title upon respondent No.4. Unless atleast such amends are made, respondent No.4 being an admitted encroacher, cannot be allowed to remain upon the land of the Communidade once the fact of unauthorised encroachment is pointed out to this Court.
27. The petitioner has relied upon the judgment of the Supreme Court in the case of JagpalSingh and Ors. vs. State of Punjab and ors., CIVIL APPEAL NO.1132/2011 @ SLP(C) No.3109/2011 dated 28th January, 2011 in respect of lands of village communities in India. The Supreme Court deplored that public utility lands in villages used for centuries for common benefit of the villagers giving them inalienable right thereto came to be grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people. The Supreme Court observed that such persons, who are neither owners nor tenants, encroached upon the community land for personal aggrandizement, obviously in connivance of the State authorities and powerful local interests. Instead of having those unauthorised evicted, the Gram Panchayat sought to recover costs of the land, upon regularising the encroachment. The act of trespassers who had encroached upon the land came to be continued without authority of law. The Supreme Court agreed with the Commissioner that regularisation of such land was not in the interest of the Gram Panchayat and that even if the encroachers had built houses upon the land, they must be ordered to remove the construction and the land must be handed back to the Gram Panchayat. The Supreme Court frowned upon the very act of regularisation. In the penultimate page of the judgment, the Supreme Court ruled that regularisation should only be permitted in exceptional cases i.e. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
28. We may accept the case of respondent No.1 that some form of settlement that of encroachment may be in order. However given the fact that respondent No.1 is a public authority and in the position of trust, such a settlement may only be for a little lesser than the market value of the land. Hence a reasonable valuation is to be made.
29. The next aspect to consider is the date of valuation. Upon a plain technical reading of Article 386(1) of the Code, it is contended on behalf of respondents No.1 and 4 that the value of the land should be as on the date of encroachment. We may state that the date of encroachment can, at the best, be only sometime at the end of December, 2007 when the stop work notice was issued. However, we do not read Article 386(1) as requiring valuation to be done even as on that date. Reading of Article 386(1) shows that the valuation to be done shall be based on the value of the land at the time of encroachment. It is, therefore, the valuation as on the date of payment of the valuation charges for regularization and not valuation as on the date of the first encroachment. It is only to be based upon such valuation as on the date of encroachment. Hence, if the valuation was Rs.100/- on the date of encroachment, reading Article 386(1) alongside the Government letter/order dated 4th October, 2006 requiring an annual increase of 10% from the rates of 2003, it would be seen that whatever be the rate at the time of the encroachment, the reasonable valuation would have to be computed adding 10% of the value from that date each year until the payment itself which was made in 2012. Having seen that there has been gross undervaluation, remainder of the valuation which would be required to be paid in future, would have to be upon a further increase of 10% each year until payment. Such would be the valuation done based upon the value of the land at the time of the encroachment.
30. The respondents contend that the value of the land at the time of encroachment was at the rate of Rs.570/- per sq. metre. At least such valuation must augment by 10% each year thereafter from 2007 until 2012 and thereafter until payment of the entire amount in view of the undervaluation respondent No.4 can be allowed to have his encroached and illegal occupation of the entire Communidade land admeasuring 599 sq. metres only upon payment of dues of such valuation. Of course, respondent No. 4 would be entitled to surrender to respondent No.1 Communidade, a part or the entire of the encroached land if he deems it not worth such valuation.
31. It is argued on behalf of the respondents that the petitioner is not a member of the Communidade and consequently does not suffer any prejudice and hence has no locus standi, in view of the General Body of the Communidade having resolved to regularise the encroachment of respondent No.4. The petitioner, indeed has no personal or pecuniary interest. The petitioner does not claim any. The petitioner claims that the Communidade must act in public interest since the income of the Communidade is essentially from the receipt of the income of the property and the grant of land on lease or aforamentobasis. The petitioner has shown the public prejudice that is caused by the action of the respondents. Even if the collusion alleged by the petitioner is not accepted, the mere undervaluation cannot also be accepted by the Court.
32. Whether or not the petitioner can apply by way of a PIL is settled since the case of S.P. Gupta vs. Union of India and another 1981 (Supp) SCC 87, popularly called œJudges' transfer case? which was decided by the Constitutional Bench of Seven Judges. In paragraphs 16 and 17 of the judgment, Bhagwati, J., inter alia, observed thus:
œ16. There is also another exception which has been carved out of this strict rule of standing which requires that the applicant for judicial redress must have suffered a legal wrong or injury in order to entitle him to maintain an action for such redress... it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. Take for example, the case of a minor to whom a legal wrong has been done or a legal injury caused. He obviously cannot on his own approach the court because of his disability arising from minority. ¦.
17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra, or Harijan workers engaged in road construction in the district of Ajmer, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public-spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico....?
33. This judgment has been aptly followed. The law of locus standi is well settled. It must be remembered that this was the case of Judges of this Country.
34. In case of Guruvayoor Devaswom Managing Committee and another vs. C.K. Rajan and others, (2003) 7 SCC 546, the Supreme Court with regard to locus standi, has in paragraph 50(iv) held thus:
œ50 (iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any legal constitutional or legal right.?
The dispute raised in the PIL was with regard to the management of a temple which violated a statute, as also the customary law by a segment of the public which related to discharge of statutory duties of the temple authority with regard to the devotees.
35. In the case of Indian Banks' Association, Bombay and others vs. Devkala Consultancy Service and others, (2004) 11 SCC 1, the Supreme Court even in commercial matters relating to the payment of interest tax, allowed a firm of Chartered Accountants to challenge higher amount of tax by way of interest to banks. The Court held that it would entertain a petition moved by a person having knowledge in the subject-matter of the lis and, thus having an interest therein in the welfare of the people as contradistinguished from a busybody. Consequently, a citizen of India can approach the court to vindicate legal injury or legal wrong caused to a section of the people by way of violation of any statutory or constitutional right.
36. As late as in the case of Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and others, (2014) 1 SCC 161, the Supreme Court has held that in a writ petition, issue of writ of quo warranto as also where jurisdiction of the Court is limited the concept of locus standi is inapplicable. The only obligation of the person bringing the action before the writ court is to satisfy the Court that the public office was held by the usurper, without legal authority. In that case, when the CEO was appointed in the State Electricity Regulatory Commission, a PIL was entertained whilst considering the service law.
37. Therefore in every field and area of law a person bonafide litigating on behalf of others to bring before the Court a case of breach of public duty or injury to the public by way of breach of any legal or constitutional right is allowed to file a PIL. In such a PIL, the merits of the matter would alone be considered. The Court would not turn a Nelson's eye to any dereliction of public duty or any collusion by any public authority which may be evidenced from the facts on record. The Court will be duty bound to right the wrong in the interest of larger section of public that would be harmed and injured if such a plea is not countenanced only because an unrelated, but bonafide citizen has brought it to its notice.
38. It is seen that in this case, the Communidade land has, admittedly, been encroached upon by respondent No.4. Even if he was granted a valid lease initially, it was only for a small portion of the disputed property. He has encroached upon further land. He desired to regularise the encroachment. He must pay the price for it. That is the value of the land. That value would have to be fixed based upon its value at the time of the encroachment. Such a fixation should be made as per the letter/order of the Government dated 4.10.2006. It is seen that the letter/order is in consonance with reality, as also reasonableness, calling for 10% increase each year. Hence, the value of the land at the time of encroachment + 10% augmentation each year, until the date of payment would be required to be paid. Such payment would legitimately regularize the otherwise unauthorised occupation of respondent no.4. As the amount which has been received from the respondent no.4 by respondent no.1 is not in accordance with the provisions of the Code of Communidade, the order of the respondent no.3 dated 27.09.2012 for regularization of the encroachment cannot stand judicial scrutiny. Apart from that, the respondents have not complied with the provisions of the Code of Communidade in accordance with the mandate therein nor obtained any consent from the Government for such purpose. Under such circumstances, we find it appropriate to quash and set aside the impugned order of the respondent no.3 dated 27.09.2012 for regularization of the encroached land and direct the respondent nos. 1, 2 and 3 to proceed with the process of regularization of the encroached land in the light of the observations made hereinabove in accordance with law.
39. Rule is disposed of in the above terms.