1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 365/2000 Novodaya Co-operative Housing Society Ltd., through its Chairman, Shri Ganapati Subrai Desai, Flat No.HHF-45, (HIG-Complex), Near Sanjay School, Alto-Porvorim, Bardez, Goa. ......... Petitioners. Versus. 1. State of Goa, through its Chief Secretary, with Office at Secretariat, Panaji, Goa. 2. The Goa Housing Board (North), through its Managing Director, having its Registered Office at Alto-Porvorim, Journalist Colony, Bardez, Goa. 3. The Director of Panchayats, Junta House, 3rd Floor, Panaji, Goa. 4. The Sarpanch, Village Panchayat of Penha De Franca, Britona, Bardez, Goa. 5. The Asstt. Engineer (Technical Officer) Sub-Division-III, Works Division-V (B.N.) Public Works Department, Mapusa, Goa. 6. Town Planner, Town and Country Planning Department, Mapusa, Goa. 2 7. Commissioner of Income Tax, Goa, Panaji, Goa. ......... Respondents. Mr. S. K. Kakodkar, Senior Advocate with Mr. Rama Rivonkar, Advocate for the petitioner. Mr. A. Kamat, Addl. Govt. Advocate for respondents No. 1, 3, 5 and 6. Mr. A. N. S. Nadkarni, and Mr. H. D. Naik, Advocates for respondent No.2. Mr. S. R. Rivonkar, Advocate for respondent No.7. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. . Date of reserving the Judgment : 27th August, 2008. Date of pronouncing Judgment : 16th September, 2008. J U D G M E N T : (Per DHARMADHIKARI, J.) 1. By this petition under Article 226 of the Constitution of India, the petitioner Co-operative Housing Society is, inter alia, praying for the following reliefs : (a) Issue a Writ of Mandamus or any other appropriate writ in the nature of Mandamus or other writ directing the respondent No.2 to act and transfer the title of plot “A” admeasuring 10561 sq. metres as per the 3 approved plan in favour of the petitioners. (b) Issue writ in the nature of Mandamus or any other appropriate writ directing the respondent No.4 to act upon the complaint of the petitioner and take action as per law against the illegal encroachment made by the petitioner and remove the encroachment of illegal construction done by the respondent No.2 on internal road and on plot “A”.” 2. The first respondent to this petition is the State of Goa. In fact, respondents No.1, 3, 4, 5 and 6 are not the contesting respondents. Respondent No.2 is the Housing Board which is a Statutory Body, registered under the Goa Housing Board Act, 1968. 3. Respondent No.7 is impleaded as it is alleged that Plot “B” is occupied by the employees of the Income Tax Department. There are 18 flats constructed on Plot “B” and it is alleged that the concerned occupants/their Society has encroached upon the plot belonging to the Petitioner. 4. Factual position leading to the relief reproduced above, is as follows : Respondent No.2, Housing Board after purchase of the said entire property bearing Survey No.34/1, sub-divided the same in the year 4 1987 after obtaining approvals from the Town and Country Planning Authority and Panchayat vide approval dated 16.7.1987. In the year 1993, respondent No.2, Board in order to take up housing scheme, got the said sub-division revised from the Town and Country Planning Authority vide approval dated 10.11.1993. As per the said approval, various plots identified as Plots “A”, “B”, “C” and so on, were carved out. As per the said revised approved sub-division plan, the area reserved under Plot “A” is 10,561 sq. metres with clearly identified open space of 1584 sq. metres. A copy of the said sub-division plan showing the various plots and approved sub-divided plot “A” and the open space therein is annexed and marked as Exhibit A. Plot “A” is identified with yellow colour and the open space therein is identified with green colour. Plot B is identified with saffron colour. On the eastern side of plot A is approved internal sub-division road of 12 metres wide and beyond which lies Plot B. The said internal road is identified with red colour on the said plan. 5. In the years 1995 respondent No.2 relying upon the said sub- division plot A, framed housing scheme (referred to as “the First Scheme”) of 72 double bedrooms flats on Plot A on an area of 10561 sq. metres and submitted the site plan and construction plans to the appropriate authorities. The respondent no.6, the Town and Country Planning Department by its approval No.DB/9838/1292/95 dated 21.6.1995, approved the said building 5 plans upon certain conditions such as parking place, open space, boundaries, set backs, FAR, etc. The copy of the said approved plan of the Town and Country Planning Department is annexed to the Petition and marked as “Exhibit-B”. The respondent no.4 upon approval from the Town and Country Planning Department and from respondent no.5, PWD thereafter granted the licence to respondent no.2 to construct building in plot “A” vide its licence No. VP/PDF/Const-licen/95-96. 6. The respondent no.2 by its Notice GHB/ADM/18/95 dated 6.10.1995 offered the said 72 flats for sale under the advanced contribution scheme for the price of Rs.6,40,000/- on the ground floor and first floor and for Rs.6,35,000/- on the second floor. The respondent no.2, after accepting the entire payment of cost of the said flats, handed over the possession of the flats to the respective purchasers from April/May 1997 to 1999 and further advised the allottees of the said flats to form a Housing Co-op Society in order to transfer the possession and title of the said approved plot “A” to the Society. Annexed to the Petition and marked as “Exhibit B-1” Collectively are copies of the Scheme and allotment letter of Flat No. HHF-45 in favour of Shri Ganpati Subrai Dessai, Chairman of the petitioner Society. 7. In the meantime in the year 1997 the respondent no.2, Goa Housing Board prepared another Housing Scheme (hereinafter referred to as 6 “the Second Scheme”) of 18 double bedroom flats on its approved sub- divided plot “B” as approved by planning authority No. PDA/3475/1526/87 dated 16.7.1987 and submitted the building plans of building to be constructed in plot “B”. In the said plan the building is shown in plot “B” and towards the west lies the internal road. The respondent no.6 granted approval vide its approval No. DB/9838/97/1101 dated 2.9.1997 and based on the said approval the respondent no.4, granted licence to the respondent no.2 to construct the said building of 18 flats. The copy of said plan showing the location of plot “B”, building thereon and the internal sub-division road is annexed and marked as “Exhibit -C”. The plot “B” is identified with yellow colour and building thereon is identified with red colour. 8. The respondent no.2 by its circular letters dated 13.4.1998 convened a meeting of allottees of flats on 14.4.1998, which was poorly attended. As the said First Meeting was poorly attended the respondent Board on 11.9.1998 issued another circular to the allottees of 72 flats under the First Scheme in plot “A” to attend the meeting convened on 14.4.1998 failing which it threatened to discontinue the services of pump operation w.e.f. 30.9.1998. At the said meeting held on 14.4.1998 there was a strong protest from the allottees of flats on account of poor quality of construction done by the respondent no.2. The copy of the said Circular dated 11.9.1998 is annexed and marked as “Exhibit -D”. 7 9. Despite protest from the allottees of flats of poor construction, there was no compliance from the respondent no.2, the allottees of flats wrote a joint appeal dated 4.10.1998 to the respondent no.2, Housing Board to comply with requirements. On 23.11.1998 a meeting of the allottees of 72 flats was held and it was decided to promote a Co-operative Housing Society. The copy of the said appeal dated 4.10.1998 is annexed and marked as “Exhibit -E”. As the addresses of all the allottees of flats were not known the respondent no.2, Housing Board vide its letter No. GHB/EE/(N)/1243/98 dated 25.11.1998 supplied the addresses of allottees of flats to get majority to form Society. 10. During the process of formation of Housing Society the respondent no.2 GHB issued No Objection letter No.GHB/EE/(N)/1101/98 dated 27.10.1998 to the petitioner that the title of the land under plot “A” covering the said project of 72-HIG flats and building will be handed over by the Board to the petitioner by executing a sale deed in favour of the Society. The copy of the said No Objection Certificate is annexed and marked as “Exhibit -F”. 11. On 10.11.1998 the respondent no.2, Goa Housing Board vide its reply No.GHB/EE(N)/TECH/1183/98 dated 10.11.1998 to the joint appeal of 8 the allottees of the 72 flats dated 4.10.1998, informed that the title of the plot “A” will be transferred only in the name of Society. The copy of the said reply is annexed and marked as “Exhibit-G.” 12. As the allottees of flats required the copy of the approved building plan of the said project of 72 flats, the allottees by their letter dated 8.12.1998 requested the respondent no.2, Housing Board to supply to them the copy of the approved site plan and the building plan of 72 HIG flats. The copy of the said letter dated 8.12.1998 is annexed to the petition and marked as “Exhibit-H”. 13. The respondent no.2, Board on 24.12.1998 issued Certificate promising to transfer the title of land covering the 72 flats and the building as per the plans approved by the Town Planner vide No. DB/9838/1292/95 dated 21.4.1995 and as approved by the respondent no.4, Village Panchayat under reference no. VP/PDF/Const-licen/54/95-96 dated 28.11.1995. Based on the said Certificate issued by the Housing Board the promoters submitted the application for registration of Society. The copy of the said Certificate dated 24.12.1998 is annexed and marked as “Exhibit-I”. 14. Thereafter, it is alleged that there were meetings held between the Chief Promoter of the petitioner Society and the Goa Housing Board and 9 the Housing Board was requested to supply certified true copy of the sub- division plan of survey No.34/1 and Plot “A”. On 26.3.1999, the proposed Society was registered under the present name and style and copy of the registration certificate is annexed as Annexure “K” to the petition. The petitioner Society immediately informed respondent No.2 Board about incorporation and registration of the petitioner Society and called upon the Board to execute the sale deed in its favour. The Goa Housing Board, issued a letter dated 12.4.1999, copy of which is annexed and marked as Annexure “M” agreeing to transfer the title of Plot A on which high income group 72 flats have been constructed and in occupation of the flat holders who are Members of the petitioner. It appears that correspondence ensued with regard to supplying of a draft of the sale deed, but nothing fruitful emerged therefrom. It is alleged that respondent No.2 did not forward the draft of the sale deed and transfer the Plot “A” on the ground that some of the Allottees have not paid their dues. However, the petitioner informed the Board that it will not be possible for the petitioner to take up maintenance of the building unless the title of the plot A is transferred in the name of the petitioner and pointed out that even Plot B has been developed, 18 flats constructed and an occupancy certificate is also sought to be obtained hastily. 15. The petitioner became suspicious because Plot B was developed and in fact though there is some problem with regard to actual 10 location of the plots, it appears that Panchayat on account of representations and complaints did not issue occupancy certificate in respect of those 18 flats constructed on plot B. In view of demarcation of Plot A being in progress, the Housing Board avoided to execute the sale deed. 16 In paragraphs 28 to 31, the petitioner has referred to the correspondence on the issue of re-examination and inspection of the site. Further, they referred to the meetings with the High Powered Officials, including the Chairman of the Housing Board and the Housing Minister. It is, in these circumstances, that the petitioner has approached this Court complaining about inaction of the Board to execute the sale deed in its favour. 17. After this petition was filed and notice was issued by this Court on 20.11.2000 affidavits were field. The Secretary and Managing Director of the Housing Board filed an affidavit and contended that the Goa Housing Board is a Statutory Body, governed by the Goa Housing Board Act, 1968. It is engaged in framing schemes of housing and construction of houses/tenements thereon. The affidavit admits that the allotment of flats has been done and the terms and conditions thereof are clear. He urged that there is allotment of flats to only individuals. There is no allotment in favour of the Society. The Housing Board has permitted formation of Co-operative Housing Society of the Allottees for the maintenance of the buildings and 11 there is no allotment in favour of the Society, nor is there is any agreement made in that behalf. It is alleged by him that some of the Members of the Petitioner have not paid the entire amount towards dues of the Board/penalty and therefore, the petitioner Society cannot pressurise the Board by filing the instant petition. It is alleged by him that the construction of building in plot B is an independent scheme and the petitioners are not concerned with the same. 18. In paras 8 and 12 of affidavit, this is what is alleged : “8. I state that the property admeasuring 11.6 hectares under Survey no. 34/1 situated at Penha de Franca Panchayat area was purchased by the Goa Housing Board in the year 1979. I say that the Goa Housing Board framed Housing Scheme of 72 double bedroom flats in 1995 to be constructed on scheme area of 6145 sq. mts. I say that the Scheme was approved by Planning and Development Authority on 10.11.1993. I say that the building to be constructed was with ground plus two floors. I say that these 72 flats were offered for sale by Notice dated 6.10.1995 under Advance Contribution Scheme and the price of flats on Ground, First and Second floors were fixed. I say that the flats were allotted to the different applicants/purchasers. I say that the possession of the flats were also handed over to the purchasers from 1997 to 1999. I say that the Society was formed by the 12 purchasers of the flats for maintenance of the building. I say that some of the allotees/members of the Society have not yet paid the entire dues of Goa Housing Board. As there was delay in payment by some of the allotess, I say that the Petitioner Society has demanded execution of Sale Deed of an area of 10.561 sq. mts. I say that the petitioner Society is not entitled for this area when indeed the scheme area is 6145 sq . mts. and allotment to them is of particular flats in terms of Allotment order. 12. I say that the Building on Plot 'B' is already complete, which is allotted to the Department of Income Tax, Grave loss and prejudice will be caused to the Respondent no.2 if any order is passed against the Board. I crave leave to produce Construction Licence dated 5.9.1995 and 23.10.1997 and Completion Certificate dated 24.3.2000 as also complaint dated 31.10.2000 to the Police authorities. I say that the petitioner Society is not entitled for an area of 10,561 sq. mts. when indeed Scheme area is 6145 sq.mts. I say that the purported Report dated 11.5.2000 of Mr. Prazeres A. Gonsalves marked as Exhibit X at page 139 of the petition is not the correct Report. I say that notice of any such inspection was never given to the Board.” 19. The petitioner filed a rejoinder and pointed out that the affidavit of the Board is nothing but an afterthought. It is urged by the 13 petitioner that the Society has been formed pursuant to the terms and conditions of the allotment letters themselves. The terms contemplate formation of a Co-operative Housing Society for maintenance of the building in which flats have been constructed. The petitioner pointed out that the Board has clearly represented to the Allottees that they would be permitted to form a Co-operative Housing Society and maintain the building by formation of Society. If there is a permission to form a Co-operative Housing Society, then, the same must be formed for the purposes of maintenance and maintenance cannot be undertaken unless the title of the land is transferred in favour of the petitioner. Further, the obligation is of the Board to remove the encroachment and there is no question of the petitioner being called upon to do so or they exerting any pressure on the Board. The petitioner has pointed out that only some amounts are due and payable by one Carmel D’Souza and Vinayak Naik, but they have not applied for membership of the Society. Further, the petitioner denied that the area is 6145 sq. metres. They asserted that the Board proposed and executed the scheme of 72 flats in Plot “A” admeasuring 10561 sq. metres. Hence, all contents to the contrary are false and are denied by the petitioner. 20. Thereafter, another affidavit was filed by respondent No.5 and in the affidavit filed on 27.11.2000, respondent No.5 referred to the approval from the Planning and Development Authority for sub-division of the plots, 14 approval for putting up buildings and approval of plans in that behalf. However, the Technical Officer denied that there is any encroachment on Plot A. The scheme with regard to Plot B was also approved according to respondent No.5 and he referred to the date of completion and occupancy of the building. 21. Thereafter, an additional affidavit has been filed on behalf of the Board, but prior thereto this Court admitted the writ petition. This Court noted that respondent No.2 Board, so also others have raised issue of maintainability of the petition and, therefore, in its order admitting the petition, this Court clarified that preliminary objections with regard to maintainability are being kept open and subject to that the petition is admitted. 22. An additional affidavit on behalf of the Board came to be filed on 7.2.04 and 14.2.04 and it stated that the Board of Directors of the Housing Board in a meeting held on 17.12.2003 decided to execute the sale deed with individual Allottees in view of the problems faced on account of dispute between Members of the Society. Therefore, upon request of individual Allottees, the Board decided to execute the sale deeds in their individual names and conveyed and placed that fact on record of this petition. 23. The petitioner then filed an affidavit of its Chairman and 15 pointed out that the decision of the Board to allegedly execute individual sale deeds is illegal and malafide, so also contrary to the terms and conditions of the allotment. There cannot be individual sale deeds of the land and the petitioner, therefore, challenges the decision of the Board to execute the individual sale deeds. The affidavit in that behalf is filed on 1.3.2004. In the meanwhile, the Income-Tax Department also filed an affidavit to this petition and denied that there was any encroachment. On the other hand, it contended that the road and the flats of the petitioner and the Middle Income Group flats were in existence prior to the construction of the building purchased by the Income Tax Department. 24. An additional affidavit has been filed on behalf of the Board in this petition on 6.9.04 and the Board has denied that a decision was ever taken to execute any sale deed in favour of the petitioner to transfer 10,561 sq. metres of land. The petitioner was never promised that Plot A admeasuring this area would be transferred. In paras 5 and 6 of this affidavit this is what is stated : “5. I state that the petitioners have produced letter written by Executive Engineer Mr. A.V. Radhakrishnan which are dated 11.9.98, 27.10.98, 10.11.98, 24.12.98, 12.4.99 etc. I state that these letters have not been issued on behalf of the Housing Board as alleged. I state that these letters are issued 16 by the Executive Engineer and it cannot be considered to be issued by the Housing Board. The letter dated 3.4.2000, which is submitted by the petitioners itself shows that many of the allottees were not members of the Society and no promise as such was given to the petitioners. 6. I state that under section 3 of Goa Housing Board Act 1968, Goa Housing Board is body corporate and acting through its Board of Directors. I state that there is no resolution of the Board of Directors to transfer land admeasuring 10561 sq. mts. to the petitioner’s society nor these letters were placed before the Board of Directors. Therefore, letters referred herein above which are issued by the Executive Engineer does not in any manner be considered as promise to the members of the petitioners. I state that all the letters referred by the petitioners are after issuing of allotment orders and therefore there is no question of representation to the members or the Allottees.” The affidavit once again reiterates the decision to execute individual sale deeds and points out that some of the members of the petitioner have opted to do so. 25. The petitioner had to file a rejoinder to this affidavit and while denying the contents of the affidavit filed additionally by the Board, the 17 petitioner reiterated the contents of their earlier affidavits and the writ petition. Further, the petitioner pointed out in the affidavit filed on 20.9.04 that whenever Middle Income Group flat holders requested for transfer of the title of flats in individual names, the Board has replied that the request cannot be considered as it has decided to execute sale deed in favour of a Co-operative Housing Society formed by the flat owners. The petitioner relied upon letter of the Board to this effect issued to one Dharamchandra Chodankar, Purchaser of Flat No.MCG-25 in M.I.G. flats Scheme at Porvorim. Despite this fact, the Board filed another affidavit and urged that the entity at Porvorim (MIG flats) is a distinct scheme and, therefore, reliance cannot be placed on the letter addressed to Chodankar. The Board sought to explain its stand further by stating as under : “ 4. I state that the Goa Housing Board in its meeting of Board of Directors held on 17.12.03 has resolved to execute sale deed in the name of individual allottees. However all the members of Golden Era Co-operative Society through the Society have represented before the Goa Housing Board that sale deed should be executed in favour of the society and they do not want sale deed in their name. I state that in view of this, matter was again placed before Board of Directors in respect of their request. The Board of Directors in its meeting held on 12.5.04 resolved to execute sale deed in favour of Golden Era Society as a special case. In view of this 18 resolution, the application of member of the said society Mr. Dharamchandra Chodankar could not be considered and accordingly letter dated 16.8.04 was issued to him. 5. I state that the Golden Era Society has all the Allottees as the members where as petitioner No.1 Society do not have all Allottees enrolled as members. Besides this, some of the members of the petitioner’s themselves requested to execute individual sale deed and one of allotttee Mrs. Brance M.D. Miranda has already executed sale deed dated 30/4/98 in her favour. I state that petitioner society was not active for long time and there is no consensus among the members. I state that resolution of Board dated 17.12.03 is applicable to the petitioners and petitioners are not entitled to say that there is discrimination against them.” 26. In these circumstances, when this writ petition appeared before a Division Bench of this Court on 22.7.08, that the Division