1. This petition is directed against the order dated 17/12/2013, passed by the Commissioner of the Corporation of the City of Panaji and judgment and order dated 26/03/2014, passed by the Minister for Urban Development (Appellate Authority), Government of Goa in Municipal Appeal No.MIN(UD)/57/2013. The facts relevant for deciding the controversy involved in the petition are stated in brief as under:
Petitioner claims tenancy right in respect of a portion of the property bearing chalta no.94 to 99 of P.T. Sheet No.46 of City Survey, Panaji. This property is allotted to four brothers in proportion of one fourth each and, therefore, the four brothers including respondent no.2 are in joint status in respect of the said property, in absence of demarcation of the same. One of the brothers, Sebastiao Azavedo, had neither sought for any construction licence nor granted any power of attorney to the prospective purchaser Shri Natwarlal Gohil to perform any functions in respect of the sale of the said property and, therefore, it is the case of the petitioner that respondent no.2 and two other co-owners have no independent right or authority to apply for any construction licence in respect of the said property. It is also the case of the petitioner that no construction licence in respect of the said property can be granted for commercial purpose.
2. The petitioner filed a complaint dated 21/09/2012, in pursuance of which the sealing of the premises at Patto Laundry, which is forming part of the said property in question, was carried out by respondent no.1, for not obtaining the necessary permission or trade licence to carry on the business of sale of bags. The premises were sealed after putting two locks over the shutters. When the petitioner visited the site on 17/09/2012, he noticed that one Maria Dias in collusion with respondent no.2, one of the co-owners and his purchaser-builder, Kalpesh, the respondent no.3, have broken open the said two locks and replaced the same by new ones and had also stacked laterite stones in the property in question. It was further submitted in the complaint that the stones were stacked apparently to carry out illegal masonry work and modification of the Patto Laundry premises without permission. It was further stated that the hind portion of the Patto Laundry was demolished. The petitioner also stated in the complaint that there was a Regular Civil Appeal No.8/2010 filed by the petitioner against said Maria Dias and her legal heirs before the Adhoc District Court, Mapusa, wherein the petitioner had prayed that the said Maria Dias and her legal heirs had no right, interest or title to the said Patto Laundry premises.
3. The petitioner further requested in the complaint that in case said Maria Dias or respondent no.2 or his purchaser applied for any grant of construction licence, it be not granted to them during pendency of the Civil Appeal. It was also pointed out that the High Court in Civil Application No.103/2007 in First Appeal No.106/2007 by an order dated 3/05/2007, had directed that pending the appeal, the respondents shall not sell the suit property or alienate, encumber or create any third party rights therein or change the status of the suit property or any part thereof.
4. It is also the case of the petitioner that he filed additional complaint dated 16/10/2012 stating that the construction licence issued by respondent no.1 to respondent no.2 and others was without verifying proper facts and therefore it was liable to be cancelled forthwith.
5. These two complaints dated 21/09/2012 and 16/10/2012 were heard by the Commissioner (respondent no.1) and were dismissed by him by his order passed on 17/12/2013.
6. The petitioner preferred an appeal against the said order bearing Municipal Appeal No.MIN(UD)/57/2013, before the Minister for Urban Development, who dismissed the appeal by the judgment and order dated 26/03/2014. Being aggrieved by these orders that the petitioner has preferred the present Writ Petition before this Court.
7. I have heard Shri Rohit Bras De Sa, learned Counsel for the petitioner, Shri V. Rodrigues, learned Counsel for respondent no.1 and Shri J.P. Mulgaonkar, learned Counsel for respondents no.2 and 3. With their assistance, I have carefully gone through the impugned order and paper book of the petition. The point which arises for my determination is:
œwhether the impugned orders suffer from vices of arbitrariness and unreasonableness, so as to warrant interference with them ??
8. The first contention of the learned Counsel for the petitioner is that construction licence ought to have been cancelled by respondent no.1 in view of the interim stay granted by this Court in Civil Application No.103/2007 in First Appeal No.106/2007. He submits that by this order passed on 3/05/2007, this Court had restrained the respondents therein from selling the suit property or alienating or encumbering or creating any third party rights therein or changing the nature of the suit property or any part thereof during the pendency of the appeal. This order, he further submits, required maintenance of the status of the suit property and the construction licence granted by the respondent no.1 to the respondent no.2 and the builder would enable the respondent no.2 and the builder to change the status of the suit property and also create third party rights therein in clear violation of the interim stay granted by this Court on 3/05/2007.
9. Learned Counsel for the respondents no.2 and 3 submits that the said stay order is not binding upon the respondents and builder as they are not parties to the said appeal and, therefore, the Commissioner as well as learned Minister have rightly held that this order not being binding upon any of the respondents herein, cannot be used against them. Learned Counsel for respondent no.1 agrees with this proposition.
10. The order passed by this Court on 3/05/2007 in Civil Application No.103/2007 in First Appeal No.106/2007 reads as under:
œP.C.:
Heard.
Pending the appeal, the respondents shall not sell the suit property or alienate, encumber or create any third party rights therein or change the status of the suit property or any part thereof.
Civil Application stands disposed of.?
11. No doubt, it imposes prohibition pending the appeal, upon the respondents therein, not to sell the suit property or alienate, encumber or create any third party rights therein or change the status of the suit property or any part thereof. This order, therefore, shall definitely bind the respondents in the said appeal. Admittedly, the respondents in the present petition are not parties in the said appeal. The said order is not an order in rem. It is an order in personem and, therefore, would be binding upon the parties therein. It cannot have any binding effect upon the persons who are not parties thereto. The respondents being admittedly not parties to the said appeal, the order would not be binding upon them. Therefore, the Commissioner as well as the learned Minister are right when they find that this order cannot be used against any of the respondents herein. I see neither any illegality nor any perversity in the findings concurrently recorded in this behalf by these authorities. The argument canvassed on behalf of the petitioner in this regard, therefore, deserves to be rejected and is rejected accordingly.
12. The next contention of the learned Counsel for the petitioner is that while granting construction licence, various objections taken by the petitioner were not considered by the respondent no.1. He submits that it was the contention of the petitioner that the property in question was under co-ownership of four brothers and to the exclusion of one brother, Sebastiao Azavedo, the other co-owners could have neither sought for any construction licence nor granted any power of attorney to the prospective purchaser. He submits that respondent no.2 and two other co-owners did not have any independent right or authority to apply for any construction licence in respect of property in question. Therefore, licence granted to respondent no.2 and remaining other two co-owners is illegal and bad in law. He also submits that there is a resolution no.6 dated 17/05/2011 according to which no construction licence can be granted for commercial purpose.
13. Learned Counsel for the petitioner has invited my attention to condition 13 of the licence dated 24/10/2011 whereby order under Section 44 of the Town and Country Planning Act, 1974 has been passed to grant the development permission wherein it is clarified that the permission is granted subject to verification of the ownership of the property by the licencing body before issuance of the licence. Learned Counsel for the petitioner submits that this condition has not been fulfilled by the licencing authority and without any verification of the exclusive ownership, the construction licence has been granted.
14. However, it is seen from the impugned orders that this very argument has been dealt with by the authorities below and rejected by them on the ground that the petitioner has no locus standi to challenge the grant of construction licence, he being not the co-owner of the property. This finding cannot be seen as perverse or against well settled principles of law.
15. The petitioner, therefore, cannot be heard to say that licencing authority failed in its duty to verify ownership of the property. It must be noted here that the licence has been granted in favour of the respondent no.2 and two other co-owners. The remaining co-owner is also a brother of the respondent no.2 and he is not taking any exception to the licence. If that is so, it can be taken that for the purpose of exercise of power to grant construction licence or otherwise, the necessary satisfaction in respect of the fulfillment of condition no.13 has been reached by the licencing authority. The condition has been imposed for the administrative purposes and it does not require the licence seeker to prove his title in the same manner as is done in a civil suit of adversarial nature. All that the licencing authority has to see is whether or not, prima facie, the statements as regards ownership of the property made by the licence seekers are correct and if any doubt about the same arises, to give an opportunity to the licence-seeker to produce additional documents supporting claim of ownership and examine them at their face value and record his satisfaction about the same. In the instant case, out of four brothers, the licence has been granted in favour of three brothers and admittedly there has been no exception taken from any member of Azavedo family to the construction licence and, therefore, there is no doubt, prima-facie, about the ownership of property and authority to seek the licence.
16. It is submitted by learned Counsel for respondents no.2 and 3 together with learned Counsel for respondent no.1, that it is not open to the petitioner to raise these objections as grant of licence is a matter only between the owners of the property and the concerned authorities and when the other co-owner has not taken any objection, no other person can have any objection about the same. They also submit that the project proposed to be developed on the property in question has been approved by the planning authority from the planning point of view in terms of Town and Country Planning Act and once the development authority namely the North Goa Planning and Development Authority, has approved the project, the licence could not have been withheld or refused by the respondent no.1.
17. The impugned orders show that all the contentions raised by both parties have been appropriately considered by the authorities below. I have also found that no illegality or arbitrariness or perversity in the finding recorded by them to the effect that the petitioner had no locus standi to question the construction licence granted by respondent no.1 to the respondent no.2 and the other co-owners, the petitioner not being the owner of the property in question could be seen. Then, after approval of plan accorded by the North Goa Planning and Development Authority, there was very little left in the discretion of the respondent no.1 to withhold or refuse the construction licence in favour of the respondent no.2 and other co-owners.
18. There is one more aspect which needs consideration. It is seen from the order dated 26/03/2014 passed by the learned Minister that he has found that nobody had challenged the grant of licence to respondent no.2 by filing an appeal and what has been challenged is the order dated 17/12/2013 passed by the Commissioner on the complaints of the petitioner. The learned Minister has taken a view that in the appeal before him, he has been only called upon to adjudicate on the merits of the order passed by the Commissioner and there could not be any challenge to the construction licence granted to the respondent no.2 on 1/03/2012 by respondent no.1, inasmuch as, the petitioner failed to show his locus standi to question the licence. The learned Minister has also found that even if it was assumed, just for the sake of argument, that the petitioner had locus standi to challenge the grant of licence, the challenge having not been made before the expiry of the limitation period, the petitioner's challenge to the grant of licence could not be entertained. The learned Minister has further found that if it is the grievance of the petitioner that the grant of licence is in breach of the interim order of stay and injunction dated 3/05/2007 passed in Civil Application No.103/2007 in First Appeal No.106/2007 by this Court, the appropriate remedy for breach of this order would be to approach the competent forum by filing contempt petition as provided under the law.
19. The view so taken by the learned Minister is based upon the consideration of relevant material available on record. So is the case with the view taken by the Commissioner. These views cannot be said to be perverse or product of any non-application of mind or so absurd that they cannot be taken at all. It is well settled law that in exercise of writ jurisdiction under Article 227, it is not permissible for this Court to reverse the orders of the Courts or authorities below only because the writ Court is of the opinion that if it were to take a view as a Court of first instance, it would have taken another view. It is also well settled that unless the orders impugned are shown to be arbitrary or unreasonable or in violation of any law or fundamental rights or perverse, no interference in exercise of extraordinary jurisdiction under Article 227 can be made. The orders impugned herein are not the ones which would fulfill the said criteria.
20. In the circumstances, the Writ Petition deserves to be dismissed. No interference in the impugned orders is called for. The point is answered accordingly. In the result, the Writ Petition stands dismissed. However, there shall be no order as to costs.
At this stage, learned Counsel for the petitioner prays for continuation of the interim stay granted by the learned Minister. However, in view of the findings recorded in this petition, the request so made cannot be granted. It stands rejected.