IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 737 OF 2009 SHRI JOE MARTINS ... Petitioner Versus THE COMMISSIONER, CORPORATION OF THE CITRY OF PANAJI AND ANR., ... Respondents Mr. D. J. Pangam, Advocate for the Appellant. Mr. A.F. Diniz, Advocate for Respondent no.1. Mr. S.D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for Respodnents nos2 a,b,c. Coram:- A. S. OKA & F. M. REIS, JJ. Date:- 23rd June, 2010 P.C: We have heard the Learned Counsel appearing for the Petitioner. The Petitioner claims to have filed this writ petition in public interest. The only substantive prayer made in this petition is for quashing aside the impugned order dated 21st May, 2009, passed by the Commissioner of City Corporation of Panaji on a Show Cause Notice dated 21st November,2007. 2. The grievance is as regards construction of a building carried out by the Respondent no.2 on the basis of a permission under Section 44 of the Town and Country Planning Act, 1974. The case of the Petitioner is that in violation of the conditions imposed by the first respondent while granting license to construct the building, the second respondent constructed a compound wall whereby the width of a public road was reduced by two meters. It appears that a show cause notice dated 21st November, 2007 was issued by the first respondent to the second respondent alleging that second respondent has constructed a compound wall admeasuring 46.25 meters without obtaining alignment from his office as required under condition no.1 of the licence. The second allegation is that the compound wall constructed by the second respondent is not as per the sanctioned plan. The Petitioner approached this Court by filing a writ petition. The petition was disposed by order dated 22nd January 2008 by which the Respondent no.1 was directed to decide the show cause notice dated 21st November, 2007 within a period of four weeks from the receipt of the order after giving an opportunity to being heard to all concerned. 3. Accordingly, the show cause notice was taken up for hearing and it was disposed of within four weeks. It is not in dispute that the Petitioner was given a personal hearing, by the respondent no.1. After giving hearing, the order dated 21st May 2009 has been passed by the Commissioner by which the show cause notice has been discharged by observing that there is no illegal construction carried out by the Respondent no.2. 4. The Learned Counsel appearing for the Petitioner reiterates that the petition has been filed in public interest. He submitted that the Respondent no.1 has not dealt with the allegations made in the show cause notice. He submitted that the allegations made in the show cause notice are that the compound wall constructed is not in conformity with the provisions of the plan and that the construction of the compound wall has been made without obtaining alignment from the office of the first respondent. He submitted that in the civil suit filed by the petitioner and others,he has not challenged the said order and the scope of the suit in the Civil Court is totally different in the sense that the relief claimed in the civil suit is as regards public road having width of 6 meters. He submitted that it was the duty of the respondent no.1 to consider the breaches alleged in the show cause notice and to record a finding as regards the said breaches. Inviting our attention to the impugned order, he submitted that the Respondent no.1 was unnecessarily impressed by the prima facie findings recorded in the civil suit. He submitted that this is a case of patent illegality in as much as without obtaining alignment, the construction of a compound wall has been made by the respondent no.2 and thus he has committed breach of condition no.1 imposed by the respondent no.1 in the licence. He submitted that the respondent no.1 be directed to reconsider the show cause notice and to pass appropriate orders. 5. We have considered the submissions of the learned Counsel appearing for the Petitioner.The Petitioner has filed civil suit no.66 of 2007 against the present respondents and others. The first prayer in the civil suit is for directing the Respondent no.1 to 4 therein (the State of Goa, City Corporation of Panaji,Panaji Planning Development Authority and Inquiry Officer,respectively) to remove illegal obstruction of 6 meters wide tarred road/public access falling in the newly created chalta no.147 PT sheet 159. It is alleged that by constructing the compound wall, the respondent no.2 herein has obstructed the said 6 meters wide public road/access.A prayer was made for a decree directing the by respondent no.2 in the present petition and some other defendants to remove the obstruction of the public road made by the construction of a compound wall. 6. The averment made in the plaint by the petitioner is that there exists a public road having width of 6 meters.It is further alleged that without obtaining alignment, the construction of a compound wall has been carried out by the respondent no.2 thereby obstructing the said public road. Applications for temporary injunction were filed by the petitioner in the said suit. One of the prayers in the first application was for directing the defendants in the suit to remove the unlawful obstruction to the said access caused by construction of the compound wall. Injunction was prayed restraining the respondent no.2 from carrying out any construction of the said road. By Judgment and Order dated 3rd May, 2008, the applications for temporary injunction made by the plaintiff were dismissed by the trial Court holding that the petitioner failed to prove the existence of a public road as alleged by him. An Appeal from order was preferred by the petitioner before this Court. The appeal has been dismissed by confirming the findings recorded by the trial Court. Thus, there is a finding recorded that the petitioner has failed to show existence of a public road. 7. Perusal of the impugned order passed by the first respondent and in particular paragraph 12 thereof shows that the contention of the petitioner before the first respondent was that there is a public road in existence and the compound wall has been constructed on the said public road. In paragraph 12 of the impugned order it is recorded that the said contention regarding existence of public a road is the main bone of contention of the petitioner's oral submissions made before the Commissioner. There is no ground taken in the petition that the said observation made in paragraph 12 by the first respondent is factually incorrect. The contentions raised by the petitioner have been negated by the Commissioner. 8. In view of the prima facie finding recorded by the Civil Court in the civil suit filed by the petitioner and in view of the fact that the suit filed by the petitioner is still pending, we find that the petitioner is not entitled to maintain this petition in public interest. In fact filing of this petition is nothing but abuse of process of law. After having failed to obtain a relief of temporary injunction, the present petition has been filed by the petitioner in August, 2009. The application for temporary injunction was rejected in May 2008. In fact the findings of the trial Court have been confirmed by this Court on 23rd October, 2008 by dismissing the Appeal From Order. Hence, we decline to entertain this writ petition. 9. The writ petition is accordingly rejected. We make it clear that this Court has not made any adjudication as regards the alleged illegality in the construction carried out by the second respondent. A. S. OKA, J. F. M. REIS, J. ap/-