1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION NO.358/2009. IN WRIT PETITION NO. 224/2005 1. Shri Shliston Furtado Major of age, Resident of House no.93/1, Sernabatim, Ambeaxir, Colva, Goa .. Petitioner Versus 1. The Goa Coastal Zone Management Authority c/o Department of Science, Technology & Environment, Opp. Saligao Seminary, P.O. Saligao, Bardez, Goa – 403 511 .. Respondent. AND Shri Agostinho Godinho Major, Married, resident of House No.57/2 Copelwaddo Sernabatim, Colva, Salcete, Goa represented through his Daughter and Power of Attorney Ms. Shirley Godinho Resident of House No.57/2 Sernabatim, Colva, Salcete Goa. .. Applicant Mr. V. P. Thali, Advocate for the applicant. Mr. S. D. Lotlikar,Advocate for the petitioner. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE ORDER : 8 th January, 2010. 2 DATE OF PRONOUNCING THE ORDER : 15 th January, 2010. ORDER : One Agostinho Godinho of Sernabatim, Colva, Goa has moved this application for his impleadment as a party respondent to W.P. No.224/2005 moved by one Shliston Furtado of Sernabatim against the Goa Coastal Zone Management Authority for quashing the order of demolition of structures standing on Survey No.12/4 of village Sernabatim passed on 23.5.2005. 2. The applicant claims to be the owner in possession of the landed property on which the said structure is standing. He has given elaborate account of how he happened to acquire the said property along with other adjoining properties through series of inventory proceedings from his maternal ancestors late Mr. Alexandar Gonsalves and Smt. Deliciosa Coelho Gonsalves. According to the applicant, the petitioner Shliston Furtado and others have raised the illegal constructions / extensions in his property so acquired bearing Survey Nos. 12/1, 12/2, 12/3, 12/4 (the property on which illegal construction referred to in the 3 petition stands) 12/6, 12/7, 12/13 of village Sernabatim in violation of norms and regulations stipulated for protection of coastal environment. 3. The applicant states that he had moved the Division Bench of this Court in W.P. No. 362/2007 for redressal of his grievance that no action was being taken by the respondent authority against the said illegal constructions/ extensions; and all the encroachers, who had carried out illegal constructions/ extensions on his property were made parties to the said writ petition. In the course of hearing of the said petition, the respondent authority made a statement that show cause notices were already issued to the persons / encroachers, who had effected such constructions and the appropriate decision was to be taken in accordance with law as expeditiously as possible after hearing all the persons/ encroachers, to whom the notices were issued as well as the petitioner therein/ the applicant herein. In view of the said statement made by the respondent authority, the Division Bench of this Court had allowed the applicant to withdraw the said writ petition with liberty to approach the Court in case of need arising in the matter. This Court expected the respondent authority to dispose of the 4 proceedings initiated consequent to the issuance of show cause notices as expeditiously as possible and in any case before 31st March 2008 vide order dated 29.10.2007. 4. The applicant further states that the demolition of the said illegal structure/s has been stayed despite the demolition order dated 23.5.2005 passed by the respondent authority on the ground of the admission of the said W.P. No.224/2005 and the interim relief protecting the said structure/s being granted therein. 5. The applicant submits that he is necessary and interested party to the present W.P. No.224/2005 for the proper adjudication therein and, therefore, his joinder to the said writ petition as a party respondent is justified. 6. The application has been resisted by the petitioner with reply dated 11.6.2009. The petitioner contends that the applicant has nothing to do whatsoever with Survey no.12/4 at village Sernabatim and has absolutely no locus standi to intervene in the matter. The petitioner has denied that the applicant is proper or necessary party to the writ petition. The petitioner states that an order of 5 demolition sought to be challenged in the present writ petition has not been passed in consequence of any complaint made by the applicant and the applicant was not party to the proceedings before the respondent nor he was heard in the matter by the said authority while passing the said order of demolition. The applicant rejoined this reply with rejoinder dated 13.7.2009 and sur sur-rejoinder dated 17.12.2009 in response to the sur-rejoinder of the petitioner dated 29.7.2009. 7. Controversy over the issue whether the applicant is necessary party to the present writ petition or not, is made murkier with the claim and counterclaim to the landed property on which the structure/s sought to be protected in the petition stands. On one hand, the applicant is interested in getting the structure standing on the said properties demolished so as to remove blot on his claim to the ownership of the said landed properties and on the other hand the petitioner is interested in protecting the said structure from demolition at the hands of the respondent authority. A question, therefore, arises as to whether the individual interest should prevail over the interest of the lis generated in the present writ petition. 6 8. Learned Advocate Thali for the petitioner submitted that order dated 19.01.2007 in W.P. No.362/2007 was not challenged by the petitioner though the petitioner was made party to it, and the said order requires that the applicant be heard in the matter of demolition of the said structure. He further argued at length that the outcome of this writ petition is likely to affect the interest of the applicant, the lawful owner of the said landed properties. On the other hand, he argued, the petitioner herein has no title to the said landed properties and, therefore, his resistance to the present application is only to defeat the ownership rights of the applicant to the said landed property. He further submitted that in order to give meaning to the directions of the Division Bench of this Court vide order dated 29.10.2007, it is just and necessary to implead the applicant to the present writ petition. 9. Learned Advocate Lotlikar for the petitioner submitted that the scope of the present petition is limited to the legality of the proceedings taken by the respondent authority in the demolition of the structure belonging to or constructed by the petitioner. Joinder of the applicant to 7 such petition would unnecessarily widen the scope of the enquiry. He further submitted that whatever may be the controversy over the landed property over which the structure in question stands, the present petition cannot be used for making enquiry into such controversy over the title. He pointed out that the structure in question was ordered to be demolished long before the order in W.P. No.362/2007 was passed and the demolition was not pursuant to the complaint made by the applicant and the applicant had not put in any inputs before the authority for issuance of the order of demolition. Inviting the attention of this Court to the judgment of the Apex Court reported in 1992(3) Bombay Cases Reporter 110 Ramesh Hirachand Kundanmal Versus Municipal Corporation of Greater Bombay and others, particularly para 14 therein, he expounded the main object of addition of a party to the legal proceedings and further submitted that the joinder of the applicant to the present petition is not necessary for effectual and complete settlement of the lis therein. 10. In rejoinder, learned Advocate Thali for the applicant cited unreported orders in writ petitions : (i) order dated 15.4.2009 in W.P. No.744/2008 – Shri Laxman 8 Candolkar Versus V.P. Of Candolim (ii) order dated 2.5.2009 in W.P. 255/2009 – Narednra Naik Versus V.P. Penha De Franca (iii)order 20.11.2009 in M.C.A. 916/2009 in W.P. 565/2009- V.P. Of Saligao Versus Santana Nazareth & Anr. and advanced an argument to show how necessary it was felt to make one a party in the writ petition concerning demolition of the illegal structure or concerning matters wherein such party had interest. Reading from explanation to Section 141 of C.P.C., he pointed out that the provisions of Order 1, Rule 10 governing the addition of parties to the civil proceedings do not apply to the proceedings under Article 226 of Constitution. Reacting sharply to this submission, learned Advocate Lotlikar for the petitioner submitted that such submission would in fact remove plank from underneath the applicant with the support of which he has proposed the present application for joinder to the present writ petition. 11. Reading from Section 141 of C.P.C., it can very well be understood that the provisions of Code are not applicable to the proceedings under Article 226 of Constitution. However, a fact cannot be overlooked that the Code of Civil Procedure has been framed to consolidate and amend the laws relating to the procedure to the Courts of 9 Civil Judicature. It embodies in itself the philosophy of the law governing the civil procedure and, therefore, there should be no hesitation to borrow therefrom any of the empirical principles therein in order to exercise the discretion within the powers under very Article to render justice as the situation warrants. Moreover, there is no prohibition in law to do so. 12. With this observation, there should be no hesitation in looking into the main object of the Order 1, Rule 10 of C.P.C. as articulated in the judgment of the Apex Court in Ramesh Hirachand Kundanmal's case (supra). Para 14 therein reads as under : “It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has 10 thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. ” Applying the principles crystalised in Ramesh Hirachand Kundanmal's case (supra), it is necessary to find out the merit of the plea for joinder of the applicant to the present petition as a party respondent. 13. The impugned order of demolition dated 23.05.2005 reveals that the respondent authority was not satisfied with the reply and documents submitted by the petitioner in response to the show cause notices dated 11 2.5.2001 and 9.9.2003 Exh.A and C respectively annexed to the petition and after giving personal hearing to the parties and upon considering the documents produced before it, had reached the conclusion that the construction/s were carried out illegally without approved plan within no development zone of CRZ after enforcement of CRZ Notification of 1991 in gross violation of the Environment (Protection) Act, 1986. Essentially, therefore, the issue in the petition does not concern the title to the landed property over which such structure stands, but concerns the legality of the structures. It may be that the applicant may have many things to show regarding construction of such structures on the said landed property, but that would only make him a necessary witness. It may also happen that the petitioner may succeed in preventing the demolition of the said structures in the present petition, but the applicant would not be bound by the result of the present petition in as much as he would remain free to take recourse to appropriate legal remedy to get his landed property vacated of the encroachments. It can very well be seen that there can be effectual and complete settlement of the question concerning legality of the constructions/ structures in the present petition without impleading the applicant. Joinder of the applicant to the 12 present petition would only open flood gate of one more controversy over the title to the landed property over which the suit structure stands, adjudication of which is not necessary for the purposes of deciding the legality of the structure in question. 14. The main grievance in the W.P. No.362/2007 was the inaction of the respondent authority in matter of enforcing law in relation to the structures/ constructions constructed illegally within no development zone of CRZ in gross violation of the Environment (Protection) Act 1986. It is also seen from the statement made on behalf of the authority and recorded in the order dated 29.10.2007 in W.P. No.362/2007 that the steps were already taken by the respondent authority for enforcing law against such illegal constructions. The respondent authority was expected to arrive at appropriate decision after hearing all the persons including the applicant herein. However, it appears that the decision of demolition was already taken much before order dated 29.10.2007 after hearing the petitioner herein. Needless to add, yardsticks employed in the cases cited on behalf of the applicant to answer the issue of joinder do not apply to the present case. 13 15. Considering these facts and circumstances, it would be appropriate for the respondent authority to remain informed and consider the inputs furnished by the applicant and use such relevant inputs while defending itself in the present petition, if need arises. If it appears that it is necessary in the public interest to hear the applicant on any question of law in the present petition, this Court may consider at appropriate stage of the proceedings the participation of the applicant in the present proceedings as may be required. 16. In view of the aforesaid discussion, M.C.A. No.358/2009 is rejected with no order as to costs. The respondent authority shall remain informed and consider inputs furnished by the applicant and use such relevant inputs while defending itself in the present petition. U. D. SALVI, J. SMA