-1- IN THE HIGH COURT OF BOMBAY AT GOA PANAJI WRIT PETITION NO. 555 OF 2008 1. La Marvel Residents' Welfare Associ0ation, a Society registered under the Societies Registration Act, 1860, represented by its President, Mr. Evaristo Fernandes, Plot No, C-18, La Marvel Colony Raj Bhavan Road, Dona Paula-Goa-403 004. 2. Shri Rohit Lobo of major age, Indian National, resident of Plot No.C-14, La Marvel Colony, Raj Bhavan Road, Dona Paula,Goa. (Registered Addresses). ...... Petitioners V e r s u s 1. Corporation of City of Panaji, through its Commissioners, Panaji, Goa. 2. The Collector of North Goa District, State of Goa, having office at Collectorate Building, Panaji-Goa. 3. Shri Augustin Rodrigues, President/SEcretary, Chapel Committee, La Marvel Village, Dona Paula, Goa, 403 004. (Registered addresses) ...... Respondents Mr. M. S. Sonak, Advocate for the Petitioners. -2- Mr. Shivan Dessai, Advocate for Respondent no.1. Mr. G. A. Shirodkar, Additional Government Advocate for Respondent no.2. Mr. V. A. Lawande, Advocate for the Respondent no.3. CORAM : S. C. DHARMADHIKARI R.C. CHAVAN , JJ. DATE : 23 rd September 2008. ORAL ORDER (S. C. DHARMADHIKARI, J.) Petitioner no.1 is a Welfare Association and Petitioner no.2 is the owner of plot no.2 La Marvel Colony, Dona Paula, Goa. 2. It is contended in the petition that Respondent no.3 in the capacity of President/Secretary of Chapel Committee, commenced construction of an illegal and unauthorized structure in the open space provided for the Colony, which is a Residential Colony. Several complaints were lodged to the Corporation and to Collector so also Police Authorities but no action was taken. Complaints have been lodged from the year 2005 and our attention has been invited to annexure 'B' to the Petition, which is a show cause notice dated 20.04.2005. Although the show cause notice was issued to respondent no.3, nothing happened in pursuance thereof and the construction was being used for shows/performances even at odd hours and that forced the Petitioners to lodge further protests in writing which are at annexure 'C'. -3- 3. In Para 6 of the petition, this is what is alleged : “The petitioners state that number of residents from La Marvel Colony approached the office of the Respondent no.1 with a plea to initiate action in the matter and demolish the illegal and unauthorized constructions in the Open Space. The petitioners state that the Commissioner of Respondent no.1 initially maintained that he was unaware of anything as at the relevant time he was not the Commissioner. However, the Commissioner called for the file and offered inspection thereof to the residents of La Marvel Colony. In the file, the residents came across Final Notice issued in May 2006 for demolition of the illegal construction. A Xerox copy of such Final Notice/Demolition Order was furnished to the residents and the Commissioner assured the residents that action would be taken to implement the same.” 4. Despite the above undisputed facts and even the Commissioner noticing in the file that proceedings pursuant to the show cause notice culminated in a final demolition notice in May 2006, there was complete inaction on the part of the Authorities. 5. That compelled the Petitioners to issue a legal notice and approach this Court. -4- 6. Meanwhile, in August 2008, the Petitioners noticed further illegal construction coming up in the open space adjacent to the earlier construction and reliance is placed upon the photographs by Shri Sonak, who contended that, by no stretch of imagination, can these structures be said to be temporary or erected for the purpose of single performance. This is a clear case of encroachment on the open space meant for public use. 7. The Petitioners are left with no alternative according to Shri Sonak but to approach this Court so that appropriate directions can be issued to the Authorities to act in accordance with law against the subject construction. 8. When notice was issued, Mr. Dessai appeared on behalf of respondent no.1-Corporation and filed an affidavit affirmed on 15.09.08. That affidavit of the Commissioner clearly states that a final Order is passed on 12.09.2008 to carry out demolition and removal of the structure in pursuance of the demolition notice issued way back in 2006. 9. As far as the new construction carried out, the respondent no.1, through its Commissioner, stated that a show cause notice is issued on 12.09.08 and the reply is sought from respondent no.3 within seven days and presently the matter is pending. -5- 10. Today, another affidavit is filed by the Commissioner and we are rather surprised to note that the Commissioner has put on record that the Corporation is unable to carry out demolition of the structure in pursuance of its final notice in May 2006 because respondent no.3 has now approached the Appellate Authority and filed a Municipal Appeal of which notice has been received by the Corporation. 11. We do not see as to how mere service of a notice of an Appeal being filed along with the Stay application would mean that the Corporation is prevented from acting in accordance with law in pursuance of its demolition notice. Mere filing of an appeal does not operate as a Stay of demolition, is an undisputed fact. Further, challenging the final notice of May 2006, Mr. Lawande would not dispute that the appeal is filed on 18.09.08, which means that the delay is also not condoned. In such circumstances, we are surprised as to why the Corporation instead of pursuing its demolition notice, prefers to wait the outcome of the appeal. 12. We strongly deprecate the state of affairs and in ordinary circumstances would direct immediate demolition of the unauthorized structure but since Shri Lawande prays for an opportunity to seek discretionary and equitable orders in the pending appeal, we grant 72 hours to respondent no.3 to obtain such Orders as are permissible in law from the -6- Appellate Authority, failing which, on the expiry of the said period, the Corporation to proceed and demolish the construction in pursuance to the demolition Order/Notice and more particularly in the light of the direction of the Commissioner issued on 12.09.08. The State of Goa to grant such assistance including availability of police force at site so that demolition can be carried out. 13. As far as the other construction which has been newly put up, we direct the Corporation to complete the proceedings which are initiated vide show cause notice dated 12.09.2008 as expeditiously as possible and, in any event, conclude them by 10.10.2008. No further extension will be granted under any circumstances and the Corporation need not wait for respondent no.3 to appear as, respondent no.3, has enough notice of the pendency of the proceedings. It is represented by Shri Lawande before us. We fix 29.09.2008 as a date of appearance by respondent no.3 before the concerned Authority or the Corporation. 14. Needless to state, that it would be open for Corporation to pass final Orders and it should follow the same course inasmuch as if there is no Order of Stay received from the Appellate Authority, in case any appeal is filed, the Corporation is at liberty to demolish the said construction in accordance with law with police protection. -7- 15. In the peculiar facts of this case, and since the inaction of the Corporation is writ large, we direct that when the Appellate Authority considers the application for condonation of delay so also Stay, representatives of the Petitioners or Petitioner no.2 shall be permitted to intervene and make their submissions. 16. Petition disposed off. S. C. DHARMADHIKARI, J. R. C. CHAVAN, J. arp/*