IN THE HIGH COURT OF BOMBAY AT GOA *** WRIT PETITION NO.251/2001 1. ‘DOWN MANGOR VALLEY’, Residents’ Welfare Association, represented through its President, Mr.Cruz Dias, First Floor, Flat No.06, Ave Maria Bldg., Down Mangor Valley, Mangor Hill, Vasco da Gama, Goa 403 802, and 2. Mr. Carmelino Machado, Joint Secretary, ‘Down Mangor Valley’ Residents’ Welfare Association, Mangor Hill, Vasco da Gama, Goa. ... Petitioners. Versus 1. Mormugao Municipal Council, through its Chief Officer, Vasco da Gama, Goa, 2. Shri A. W. Awale, Chief Officer, Mormugao Municipal Council, Vasco da Gama, Goa, 403 802, 3. State of Goa, through its Chief Secretary, having office at Secretariat, Panaji, Goa, 4. Shri Babu Laxman Rao, 5. Shri Vithal R. Deshmukh, 6. Shri Hirappa Kahndapnur, 7. Shri Makanu Kattimani, 8. Shri Amunsab Kattimani, 9. Shri Makdum Kattimani, 10. Ms. Renuka Rathod, 11. Mrs. Kassimbi Dastagir Shaikh, 12. Shri Babu Makandar, 13. Mrs. Timarva Patrod alias Mrs. Tima Paturtit, 14. Shri Abdul Razak Shaikh, - 2 - 15. Mrs. Mumtaina Shaikh alias Magdumsab Shaikh, all r/o Opposite Nitin Store, Down Mangor Hill, Vasco da Gama, Goa. ... Respondents. Shri M. S. Sonak, advocate for the petitioners. Shri S. G. Dessai, Senior Advocate with Shri S. D. Padiyar, advocate for respondents no.1 and 2. Shri A.N.S. Nadkarni, Advocate General with Shri S. Vahidulla, Addl. Government Advocate for respondent no.3. Shri S. K. Pai, advocate for respondents no.10, 11, 13 and 15, under L.A.S. CORAM: F. I. REBELLO & A. S. AGUIAR, JJ. DATE : 8th January, 2002. ORAL JUDGMENT (Per Rebello, J.) This Court while adjourning the matter on 12th December, 2001, had adjourned it with notice to the parties that the matter on the adjourned date would be heard both on admission and final hearing. In the light of that, Rule. Heard forthwith. 2. Petitioners, M/s. Down Mangor Valley Residents’ Welfare Association, are registered under the Societies Registration Act. One of its aims and objectives is to provide for a children’s park/garden in the open space identified as Plot ‘C’ of property known as ‘Babquiadi’ surveyed under Survey No.59, P.T. Sheet No.150, Mangor Hill, Vasco da Gama. The petitioner no.2 is the Joint Secretary of petitioner no.1. The President and the Joint Secretary have been duly authorised by a - 3 - Resolution of petitioner no.1 to file the present petition. A few facts which are relevant for the purpose of disposal of this petition may now be set out. Late Bruno Lizardo Fernandes was the owner of the property which is the subject-matter of the present petition. The said owner had applied to the respondent no.1 for permission for development of the said property. By a letter dated 30th December, 1966, President of respondent no.1 communicated to the owner, the Town Planning Committee the decision which reads as under:- "The Town Planning Committee, has no objection to the sale of plots marked A,B,D.12 with plot C left as open space but this does not give approval for the plots already sold. The road pattern will affect the plots as shown in blue". Next document is a Deed of Exchange dated 9th October, 1967, entered into between the owner and the second executing party, being one Daud Abubakar, by which a portion of the land belonging to the owner was exchanged. However, what is relevant in respect of the exchanged land is that on the western side was shown Plot ‘C’ destined as open space. Next is the letter dated 11th January, 1979, by the Chief Town Planner addressed to the predecessor-in-title of the first respondent, wherein the Chief Town Planner informed that they had received a - 4 - communication from one Maria Virginia Da Silva Fernandes of Mangor Hill, Vasco da Gama, regarding the compulsory open space reserved by the original owner Bruno Fernandes to be converted into a garden/park at Mangor Hill. The Chief Town Planner requested the President to take necessary action in the matter under intimation to their office. Letter dated 21st June, 1980, is addressed by the Chief Town Planner to the Member Secretary, Mormugao Planning & Development Authority. One of the subjects to which the attention of the investigators carrying out land survey had been referred to included the approved sub-division plan of late Bruno Fernandes, wherein one plot was reserved as open space in Babquiadi at Mangor Hill, in which it was stated was now occupied by illegal huts. On 4th July, 2001, respondent no.1 had issued a public notice and in the public notice under the signature of respondent no.2, it was informed that the respondent no.1 proposed to take possession of the property described in the Schedule attached to the notice to develop as garden/park for the benefits of the resident of Down Mangor Valley. More importantly, the notice set out that the said property was handed over to the Council by the then landlord Bruno L. Fernandes by his formal letter dated 30th March, 1978, addressed to the Ex-President of the Council. It seems that the owners of the plot/occupants, from the affidavit of Mrs. Virginia Da Silva Fernandes, annexed as annexure to the petition, have - 5 - been personally writing to various authorities regarding vacating the plot and building a garden/park on it, for which it was originally designated. There are averments to that effect in paragraph 4 of the petition which have not been denied in the affidavit-in-reply filed by the respondent no.1. The grievance of the petitioners also is that protection was being given to the illegal hutments by politicians by putting pressure on the Municipal authorities. On record is also Notice dated 29th August, 1980, issued by the Chief Officer of the first respondent under Section 184 of the Goa Municipalities Act, 1968 (hereinafter referred to as the ‘Municipalities Act"). In the said Notice, it is pointed out that illegal constructions had been carried out without due licence from the respondent no.1 and to stop the work of construction of the buildings forthwith and to demolish/pull down the entire work already completed within fifteen days of the service of the Notice. It was then mentioned that if the noticee did not comply with the demand in terms of the Notice, the Chief Officer proposed to act under the powers conferred on him. 3. On 30th March, 2001, the residents of Down Mangor Valley again intimated to the Chief Officer that illegal constructions galore are taking place under the nose of the petitioner no.1 and would like to know the action that had been taken. Copies of the illegal - 6 - constructions with photographs were forwarded. This communication was received in the office of the second respondent on 9th April, 2001. On 18th April, 2001, the second respondent issued notices to those occupying the constructions put up in the plot reserved as open space. It was set out that in the inspection held on 12th April, 2001, the occupants had carried out illegal construction without taking prior permission as required under the Municipalities Act. It was further pointed out that the construction being illegal was in contravention of Section 184 of the Municipalities Act. The noticees were called upon to show cause as to why an order under Section 184 (1) (a) of the Act should not be passed for demolition of the said structure. The noticees, it seems, showed cause by the reply of 19th April, 2001. It was then set out that the houses/tenements were existing for the last more than 40 years and they had been inherited from their parents after their death; that the noticees were born in the same residences. In support they also produced the election voters’ list, ration cards and postal letters. It was mentioned that the constructions were old and no new changes had been recently done and in view of the above, requested the Council to withdraw/cancel the demolition notices and regularize the dwellings. On 4th June, 2001, the second respondent addressed a letter to the Director of Municipal Administration. In the said letter it was pointed out that a complaint was received - 7 - from the residents of Down Mangor Valley in the matter of illegal construction with a request to demolish the same as it was kept as an open space for the purpose of garden/park by the owner of the land. A news item had also been published in the newspapers. In that connection, the second respondent set out that he had issued notices to the concerned persons. Reference is then made to the Reports submitted by the Junior Engineer of the Council that nearly nine families had constructed houses illegally on that land and three persons had obtained the assistance of house tax receipts from the Council by submitting false documents. The letter also points out that in that matter investigation was on going and in the meantime, the house tax of the aforesaid three persons has been revoked to avoid further complications. It was pointed out that the complainants were pressing hard for issuance of final notices to the nine persons who had constructed houses illegally in the open space bearing Chalta no.59 of P.T. Sheet no.150, which is reserved for garden/park. More important is the following extract from that communication:- " Once the final notices are issued under Section 184(8) of the Municipalities Act, 1968 I am bound to take necessary action to demolish the said illegal constructions after completion of 14 days." It is then set out that the Government had a policy decision to rehabilitate such persons before they are - 8 - evicted from the land if they continue on such land for a long period. In the instant case, it was contended that 11 families have claimed that they are residing in the aforesaid land for the last 30 to 40 years and that their claim was supported by delegation from that area consisting of nearly twenty persons. It is then set out that no supporting documents had been produced to prove their plea; that the second respondent had personally inspected the illegal constructions and confirmed that the same are not less than 20 years old on the said open space. Request was made that the matter be placed before the Government for consideration and intimation to the Council whether the Government had any plans to rehabilitate these 11 families either on Government or Comunidade land nearby the said area and if so, to intimate the decision of the Government. In response to that letter the Additional Director of Municipal Administration wrote to the second respondent that the Municipalities Act had specific provisions to deal with cases of illegal constructions. The second respondent was directed to take appropriate action against illegal constructions as per the provisions of the Act. On considering the representations made by the noticees, by a Final Notice dated 20th July, 2001, the second respondent held that cause shown was found unsatisfactory for the reasons that:- - 9 - (a) no permission/licence for the said structure/hutment had been produced; and (b) no document had been produced in support of ownership. In these circumstances, the second respondent in exercise of the powers vested in him under Section 184 (8) of the Municipalities Act, called on the noticees to demolish the illegal construction of structures/hutments within fifteen days from the service of notice and if no demolition is commenced within the said time, the second respondent would cause the illegal structures to be demolished. Subsequent to this Notice the Deputy Collector, Vasco da Gama by letter of 13th August, 2001, informed the second respondent that the Government had no scheme of rehabilitation; that in the matter of regularization of illegal construction, on the Government/Comunidade land they had no instructions till that date. On 31st July, 2001, a representation was made to the second respondent that mundkar cases have been filed and not to take any action till the matters are decided by the Mamlatdar of Mormugao. On 2nd August, 2001, in respect of the Final Notice dated 20th July, 2001, further representation was made not to take any action in the matter and more so as mundkarial applications had been filed. - 10 - In the meantime, by an Order of 31st May, 2001, in respect of those who had obtained house numbers, the second respondent in view of the false information and false documents submitted for obtaining the house numbers, cancelled the same and forfeited the amounts paid to the Municipal treasury. At this stage it may be relevant to note that to enable the occupants on the open space who had construction thereon to obtain house registration numbers, affidavits had been submitted to the office of the first respondent. In the said affidavit it was set out as under:- " The illegal structure would continue to be illegal for all practical purposes and structure will remain as illegal." 4. On 6th August, 2001, the second respondent by an order withdrew the Final Notice issued to the persons set out in the said Notice. The reasons given for withdrawal of the Final Notice were as under:- (i) that the families of the said persons were residing in that area for the last more than twenty years peacefully and without causing disturbances to the nearby residents; (ii) that the original landlord late Bruno Fernandes has not filed any complaint personally with the Council for eviction of the residents till the - 11 - date of the Order and the present complaint is lodged by a third party without considering the question of their rehabilitation in view of the fact that they are residing there for quite a long time; (iii) that the aforesaid persons are born and brought up in the said area and are continuing there for the last more than 20 years. Accordingly they had produced the true copies of the same in support of their claim; (iv) that they had obtained permanent ration cards from the Mamlatdar of Mormugao and their names are already appearing on the electoral rolls of that area; (v) that another group of twenty residents residing nearby that area had filed an application before the second respondent that the dwellers are residing at the site for the last 40 years and they have not caused any disturbance in the neighbourhood and had appealed that they should be allowed to continue until alternate arrangements for rehabilitation are made; (vi) that one of the applicants from the complainants’ side requested in the year 1998 to the Council and the Government to rehabilitate those families somewhere else to vacate the area and Government had - 12 - assured that as and when general rehabilitation programme in Mormugao Taluka is taken, her request would be considered; (vii) that the Government had taken a policy decision recently to regularise illegal constructions of such persons on Government and Comunidade lands and not to demolish the houses of such families unless they are rehabilitated; (viii) that the families are residing for more than 20 years and they desire to rehabilitate them either on Government or Comunidade of Municipal land with the approval of the Government on humanitarian grounds before their homes are demolished; (ix) that the aforesaid persons during the personal hearing given by the first respondent had claimed that they are staying in that area for the last 40 years with the permission of the landlord; and (x) that the matter is subjudice as the said persons had filed cases before the Mamlatdar of Mormugao, Vasco da Gama on 31st July, 2001. Immediately after that, the Health Officer of the first respondent addressed a letter to the Chairman of - 13 - the first respondent based on a complaint received by him dated 11th September, 2001. Therein he cited the report of the Sanitary Inspector where it was reported that there are constructions there without any sanitary facilities. Due to the absence of toilet facilities the dwellers defecate and urinate behind the wall of the house belonging to the complainant in the open space, creating unhygienic conditions. The public tap located in the area is without a drainage system resulting in stagnation of water and breeding of mosquitoes. It was requested that early action be taken in the matter. 5. The case of the petitioners is that the first respondent allowed the late Bruno Fernandes to develop the land by imposing a condition on the plot that it would be reserved as an open space. That condition was accepted by the late Bruno Fernandes, who left Plot ‘C’ as an open space. The correspondence including the Public Notice issued by the second respondent itself would show that the said open space was handed over to the first respondent on 30th March, 1978, though the first Notice indicates that that the first respondent proposes to take possession. Once the area is left as an open space, it is an amenity for the residents who have purchased plots in the land which has been allowed to be developed and no construction can be permitted on the said land. It is further pointed out that the very fact that the Plot ‘C’ - 14 - was allowed to be kept as an open space by itself would indicate that there were no constructions at the relevant time, as otherwise it would not be an open space, nor was there any direction to the late Bruno Fernandes to remove the structures before permission to develop was granted. It is further pointed out that therefore, in these circumstances, the space has to be kept open and the first and second respondents by virtue of the mandatory duty cast upon them are bound to keep the space open. 6. It is then contended that once the Final Notice was issued, the second respondent had no power to review the said Order which is styled as a Final Notice, by virtue of the provisions of Section 184(13) of the Municipalities Act, as an appeal is provided. In other words, it is sought to be pointed out that the order passed by the second respondent after hearing the persons affected, is a quasi-judicial order and once there is a quasi-judicial order, in the absence of any power under the Municipalities Act to review the decision, the second respondent could not have recalled the Final Notice by the subsequent Order dated 6th August, 2001. 7. Next it is contended that the reasons given for withdrawing the Notice are extraneous to the provisions of the Municipalities Act. The second respondent has been conferred certain statutory powers - 15 - under the Act. In the exercise of those statutory powers all that can be examined are the provisions of the Municipalities Act, Rules and Bye-laws and other relevant statutes, if applicable. Various considerations given for recalling the Order or reviewing the Order are extraneous to the Act and unconnected with the discharge of power by the second respondent and on that count itself the Order is liable to be quashed and set aside. 8. On the other hand on behalf of respondents no.1 and 2, Shri A.S. Awale as Chief Officer of the second respondent has filed a reply dated 6th January, 2002. The first contention taken is that the petition is not a pro-bono petition and the petitioners are not pursuing the petition bona fide. The structures on the site are there for the last more than 20 years to the knowledge of the petitioners. It is then set out that the property where the structures are situated does not belong to the Municipal Council and continues to be in private ownership and that there is no formal handing over of the property to the Municipal Council. It is then set out that regarding the petitioners’ claim regarding the property being earmarked as open space for garden/park and being handed over to the Council, necessary records were searched, but the Municipality records do not disclose that the property ‘Babquiadi’ had been handed over to the Municipal Council in terms of law. It is pointed out that - 16 - subsequent to the Notice issued by the Council for taking possession, a legal notice from the advocate of the heirs of the late Bruno Fernandes was received resisting municipal claims over the property and that the petition filed on the basis that the property is an open space belonging to the Mormugao Municipal Council is without any basis and foundation. Therefore it is set out as to what transpired after the Final Notice was issued which is practically a reiteration of what is set out in the order recalling the Final Notice. The second respondent then has set out that the Government has taken a policy decision to regularize illegal constructions on the Comunidade lands and on the aspect of rehabilitation of the people therein, he found it desirable that the occupants of the structures are rehabilitated either on Government/Comunidade/Municipal land with the approval of the Government, on humanitarian grounds before their homes were demolished. It may also be pointed out that it was sought to be contended on behalf of respondents no.1 and 2 that possession or ownership of the land not being there of the respondent no.1, the petition itself was not maintainable and further, that the occupants are residing therein for over 20 years. No affidavits have been filed on behalf of the other respondents. 9. With the above background, the first question to be considered is whether the second respondent - 17 - has the power of recalling the Final Notice issued under Section 184 (8) of the Municipalities Act. It is now a settled proposition of law that the power of review or recall has to be specifically conferred if a quasi-judicial authority has to review an order passed. If authority be needed in support thereof, gainful reference may be made to the Judgment of the Apex Court in the case of Dr. (Smt.) Kuntesh Gupta Dr. (Smt.) Kuntesh Gupta Dr. (Smt.) Kuntesh Gupta vs. Management of Management of Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors, Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors, Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors, (1987) 4 SCC 525. The Apex Court therein held that it is now well-established that a quasi-judicial authority cannot review its own order unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. Under Section 184 of the Municipalities Act no person can construct a building without following the procedure complying with the requirements therein. On failure by a party to comply with the requirements, powers have been conferred on the Chief Officer under Sub-section (4) of Section 184 of the Municipalities Act. Thereafter, in Sub-section (8) of Section 184 on failure to give notice or comply with the other requirements, there is power conferred on the Chief Officer to direct or stop the construction and to alter or demolish any construction made as specified in the notice. Against an order passed under Sub-section (8) of Section 184, an appeal lies to the Appellate Tribunal under Sub-section (13). Therefore, it would be clear that - 18 - before passing an order an opportunity has to be given to the party and after hearing him an order can be passed. There can be, therefore, no difficulty in holding that the Final Notice/Order is quasi-judicial in character, or has all the trappings thereof, as the second respondent acted on a complaint. Once that be the case, the second respondent acted without jurisdiction in passing the Order dated 6th August, 2001, as the Municipalities Act has no power of review. That order dated 6th August, 2001, therefore, will have to be quashed and set aside, being without jurisdiction. 10. We may now deal with the main issue of open spaces which are reserved as part of a development project. It is no doubt true that there is some material on record to indicate that respondents no. 4 to 15 have been occupying the structures on