Court : Mumbai Goa
oral judgment:- heard shri shivan desai, learned counsel appearing for the petitioners and shri a. d. bhobe, learned counsel appearing for the respondent no.1. 2. the above petition challenges the judgment passed by the learned administrative tribunal dated 14.07.2010 whereby the tenancy revision preferred by the respondent no.1 came to be allowed and the application for condonation of delay filed by the petitioners before the dy. collector along with the application for leave to challenge the judgment passed by the learned mamlatdar came to be quashed and set aside. 3. shri desai, learned counsel appearing for the petitioners has assailed the impugned judgment on the ground that the dy. collector upon appreciating the evidence on record has come to the conclusion that the petitioners have made out a case to condone the delay. the learned counsel has pointed out that the petitioners have filed an application for condonation of delay immediately after they learnt about the order passed by the learned mamlatdar before the learned dy. collector who after appreciating the contentions raised by both the parties found favour with the explanation given by the petitioners and condoned the delay. the learned counsel further pointed out that the dy. collector on the basis of appreciating material on record has further found that sub-delegated attorney of the petitioners by name nitin kudav who had filed an application to recall the order of the learned mamlatdar was not authorised to .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri s. d. lotlikar, learned senior counsel appearing for the petitioner and shri j. vaz, learned special public prosecutor appearing for the respondents. 2. rule. by consent heard forthwith. 3. the learned counsel appearing for the respondents waives service. 4. the above petition challenges an order passed by the learned special judge, n.d.p.s., court dated 25.10.2012 whereby an application filed by the respondents under section 36-a(4) of the n.d.p.s. act, 1985 for extension of time came to be partly allowed and the period was extended for a period of 90 days. 5. shri s. d. lotlikar, learned senior counsel appearing for the petitioner has assailed the impugned order essentially on the ground that this court by order dated 15.10.2012 had remanded the matter to the learned special judge to decide the extension as prayed by the respondents afresh in accordance with the material as available as on 01.09.2012 after hearing the parties in accordance with law. shri s. d. lotlikar, learned senior counsel has pointed out that the learned special judge though has accepted the ratio as laid down by the apex court in the judgment reported in (2009)17 scc page 631 in the case of sanjay kumar kedia v/s intelligence officer, narcotics control bureau and another, to the effect that the seriousness of the offence should not be considered at the time of granting such application nevertheless while disposing of the application, the learned special judge has been carried .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri shivan desai, learned counsel appearing for the petitioner and shri m. salkar, learned counsel appearing for respondent no.1. 2. rule. heard forthwith with the consent of the learned counsel. shri salkar, learned counsel appearing for respondent no.1 waives service. the notice was issued to the respondents that the above petition may be disposed of finally at the stage of admission. none appears for the remaining respondents. 3. the short point for consideration in the above petition is that an application filed by the petitioner for modification of an order of temporary injunction passed by the learned civil judge senior division at panjim by order dated 9/01/2012 whereby the learned judge inter alia directed the petitioner to deposit a sum of rs. 1,50,00,000/- (rupees one crore fifty lacs only) before the court be modified to the extent that instead of depositing the amount the petitioner would furnish a bank guarantee for the said amount came to be dismissed. 4. the learned judge by the impugned order dated 30/06/2012 has dismissed the said application essentially on the ground that the contentions of the petitioner do not come within the provisions of order 39 rule 4 of the civil procedure code. 5. shri shivan desai, learned counsel appearing for the petitioner has assailed the impugned order on the ground that the petitioner only desires to secure the amount directed to be deposited by the learned judge whilst disposing of the application for .....
Tag this Judgment!Court : Mumbai Goa
u.v. bakre, j. the above second appeal is filed by the plaintiffs of regular civil suit no. 397/88/jr. 2. the plaintiffs had filed the said suit for permanent injunction restraining the defendants, their agents, servants and/or any other persons acting on their behalf, from interfering in any manner with the suit access. 3. case of the plaintiffs, in short, was as follows:- they are occupying a house as mundkars situated in the suit property bearing survey no. 229/25 of calangute village, for more than 50 years. the suit property is land locked and on the southern side of the same there is a property managed and looked after by the defendants, beyond which there exists a public road. the plaintiffs were always using an access having width of about 3 metres leading from the public road to the suit property, through this property of the defendants since the time they and their family members started occupying the house in the suit property. the said property of the defendants bears survey no. 229/33 and the suit access is being used as motorable access since time immemorial, openly, peacefully and without any interference from anybody and that it is the only access available to them to go to the public road. the suit access is also a traditional access and as a right of necessity and customary easement for them. in the month of august, 1998, defendants brought two trucks load of mud in their property and two days thereafter they planted coconut saplings in order to obstruct the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: the above two appeals are taken up jointly for disposal as they pertain to the land adjacent to one another acquired under the same notification under section 4(1) of the land acquisition act, 1894 (l.a. act). 2. land was acquired for construction of a road from querim to dyghode in ponda taluka. the notification under section 4(1) of the l.a. act was published in the official gazette dated 7/2/1989. this, inter alia, included land from survey nos. 101/1 and 105/1 of village priol of ponda taluka. an area admeasuring 380 square metres was acquired from survey no. 101/1 (part) and an area of 1250 square metres was acquired from survey no. 105/1. the appellant of f. a. no. 323/2003 had laid claim for undivided 50% share in the said acquired land. the remaining 50% share belonged to shri sadanand g. s. priolkar. the said acquisition, inter alia, also included land from survey nos. 101/3 and 102/1. an area of 310 square metres was acquired from survey no. 101/3 (part) whereas an area of 1775 square metres was acquired from survey no.102/1. the appellant of f. a. no. 324/2003 had laid his claim to the said acquired land. the learned land acquisition officer (l.a.o.), by award dated 25/10/1991 awarded the universal rate of rs. 6/- per square metre to the entire land acquired vide the said notification under section 4(1) of the l.a. act, published on 7/2/1989. 3. not being satisfied with the offer made by the l.a.o., both the appellants filed applications under .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard 2. rule, returnable forthwith. 3. shri mangeshkar, learned counsel waives notice on behalf of respondent no.1, who is only the contesting party to this petition. 4. the only point which arises for consideration in this case is:- whether the impugned order dated 16.2.2013 allowing counter claim of respondent no.1 passed by learned civil judge, senior division, ponda is illegal and arbitrary? 5. the facts leading to the presentation of the present petition are stated in brief as under:- the petitioners are the plaintiffs who had filed a suit against respondent no.1 and 2 for specific performance of the agreement dated 14.08.1996 and for damages. plaint was presented in the month of august, 2007. it was resisted by respondent no.1 who filed his written statement dated 1.4.2008. the dispute between the petitioners and respondent no.1 revolves around the delivery of second flat, s-2, as a part consideration of the agreement for sale of the suit plot executed between the petitioners and respondent no.1. this flat was having an area of 75 sq. mts and after construction of the building, it was revealed that this flat was having an area of 94 sq. mts and not of 75 sq. mts. therefore, respondent no.1 requested the petitioners to pay up for the difference amount of the cost of this flat, which was of rs.81,000/-. first flat that was to be delivered to the petitioners as part consideration was also having an area of 94 sq. mts instead of agreed area of 75 sq. mts .....
Tag this Judgment!Court : Mumbai Goa
oral judgment:- 1. heard mr. s. d. lotlikar, learned senior counsel appearing for the appellant and mr. m. b. da costa, learned senior counsel appearing for the respondents. 2. the above appeal came to be admitted on the following substantial question of law by order dated 16.07.2009. whether the year in which encroachment has been alleged in the plaint is determinative in a suit for restoration of possession of the encroached land and for recovery of possession based on title particularly when the court has negated the defence of acquiring the title by prescription raised by defendant? 3. mr. s. d. lotlikar, learned senior counsel appearing for the appellant has submitted that the appellant has purchased the property pursuant to the sale deed dated 20.05.1981 which was surveyed under nos.207/1 and 207/2 besides another property known as 'gorbat' as identified in the schedule attached to the said sale deed. the learned senior counsel has taken me through the said sale deed and pointed out that the disputed property in the present case is the one which is surveyed under no.207/1 which has been purchased by the appellant excluding an area of 500 square metres which was reserved for the vendors therein. the learned senior counsel further pointed out that on the basis of the said sale deed, the appellant has acquired title to the disputed property and as such the appellant is entitled to the ownership and possession thereof. the learned senior counsel further pointed out that .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard mr. rivankar, learned public prosecutor appearing on behalf of the appellant and mr. de sa, learned counsel appearing on behalf of the respondents. 2. this is a state appeal against acquittal. 3. the respondents (accused) were tried by the learned judicial magistrate first class in criminal case no. 35/s/2003/a for offences punishable under sections 324, 341, 504, 506(ii) r/w. section 34 of the indian penal code (i.p.c.). the said case was a culmination of a charge sheet filed by quepem police alleging that on 21/09/2002 at 22.30 hours at ganesh shetkar shop, cotto, amona junction, all the accused in furtherance of their common intention wrongfully restrained shri sameer naik (pw2) by catching hold of his t-shirt and hands and assaulted him with soda bottles on his head thereby causing simple injury to him and further gave him bad words and also threatened to kill him. 4. the respondents had pleaded not guilty to the charge framed by the learned judicial magistrate first class, quepem (trial magistrate) and thereafter the prosecution had examined all together 23 witnesses in order to prove its case. the statements of accused persons came to be recorded under section 313 of the code of criminal procedure, 1973. the case of the accused persons was of denial simplicitor. they did not examine any witness in their defence. 5. upon consideration of the entire evidence on record, the learned trial magistrate found that the prosecution could not prove the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard shri vengurlekar, learned counsel appearing for the appellants and shri melo, learned counsel appearing for the respondents. 2. the above appeal has been admitted on 13.07.2007, on the following substantial question of law: (i) whether it is absolutely necessary to make prayer in the plaint for declaration regarding the existence of right of easement by prescription and if such prayer is not made, whether the suit solely seeking permanent injunction, is bound to fail? 3. during the course of the hearing of the above appeal, shri melo, learned counsel appearing for the respondents has argued in support of the cross objection filed by the respondents. after hearing both the learned counsel with that regard, the following additional substantial questions of law are framed by consent of the learned counsel : (a) could an easementary right by prescription be declared by the first appellate court, when a specific bar is created under section 17(b) of the indian easements act, 1882? (b) in absence of pleading nuisance and substantial damage caused to the appellants, could the first appellate court declare that the appellants have acquired an easementary right by prescription? 4. the matter was thereafter argued on all the aforesaid substantial questions of law. 5. before i proceed to examine the rival contentions in connection with the above substantial questions of law, it would be appropriate to briefly state the facts of the present case. the appellants .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard mr. n. sardessai, learned counsel appearing for the appellants and mr. a. f. diniz, learned counsel appearing for the respondents. 2. the above appeal came to be admitted by order dated 31.03.2008 on the following substantial questions of law. (a) whether the clauses of the agreement dated 8.12.1984 executed by the builder with the respondents, which were clearly in excess of the powers/authority given by the appellants to the builder by agreement dated 31.03.1984 and the power of attorney dated 29.03.1984 be said to be binding on the appellants especially when the respondents were aware that the builder's agreement with the appellants and the power of attorney given by the appellants to the builder did not empower the builder to execute such clauses ? (b) whether it was mandatory for the appellate court to have framed issues/points for determination and decide the same while disposing the regular civil appeal no.160/2001 ? (c) whether the findings of the courts below are unsustainable in law, for having arrived at, without considering the effect of the clause nos.4 and 11 of the agreement dated 31.03.1984 especially when it was the appellants' case that in view of the agreement dated 31.03.1984, the builder could not have legally agreed with the respondents not to put up construction of the third storey on the north-south wing of the proposed building ? (d) whether the appellate court erred in deciding the appeal without adverting to the binding nature .....
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