Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.      6383                      of     2012   ( Arising out of SLP (Civil)No. 29081 of 2011)

M/s. Real Estate Agencies … Appellant(s)

Versus

Govt. of Goa & Ors.        … Respondent(s)

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J.   

Leave granted.

2. This appeal has been filed to challenge the order  

dated 18th August, 2011 passed by the High Court of  

Bombay (Panaji Bench) in Writ Petition No.98/11 by

Page 2

which the reliefs sought in the writ petition have been  

refused and the writ petitioner has been left with the  

option of approaching the civil court for the redressal of  

his grievances.

3. The facts in brief may be noted at the very outset:

(i) The petitioner herein (writ petitioner before the  

High Court) is a registered partnership firm which had  

developed a residential colony in Miramar, Goa, known  

as La Campala residential colony. It is the case of the  

petitioner that after completion of the developmental  

work the residual land of the colony, including all open  

plots that were meant to be kept open as “vacant space”,  

were transferred in favour of the petitioner under a  

registered deed dated 16th November, 1977. Such open  

spaces, according to the petitioner, included a piece of  

land measuring about 19250 sq.mtrs. bearing Chalta  

2

Page 3

No.18 of PT Sheet No. 120, Miramar, Panaji, Goa  

(hereinafter referred to as ‘the land in question’). The  

petitioner claims that the right, title and interest in the  

said open land undisputedly vested in the petitioner and  

the petitioner has exclusive right to develop the said  

open land which is to the knowledge of all concerned  

including the respondents in the present appeal.  

(ii) In the writ petition filed, it was further claimed that  

sometime in the year 1981 the petitioner wanted to raise  

construction in an area of about 7,000 sq.mtrs.  

(consisting of 14 plots of 500 sq.mtrs. each) out of the  

aforesaid open space of 19250 sq.mtrs. According to the  

petitioner, such construction over the 7,000 sq.mtrs. of  

land would still have  kept more than 12,000 sq.mtrs. as  

open space which area would have been within the  

prescriptions contained in the existing Municipal Rules  

and Regulations. However some of the purchasers of the  

3

Page 4

plots who had constructed their buildings thereon and  

had formed a co-operative society i.e. Model Cooperative  

Housing Society, approached the Bombay High Court by  

way of a civil suit bearing No.1/B of 1981 claiming an  

easementary right in respect of the entire vacant/open  

space of 19250 sq.mtrs. In the aforesaid suit, the Co-

operative Society, as the plaintiff, contended that in the  

brochures published at the time of development of the  

housing colony it was represented that 19250 sq.mtrs. of  

open space will be available in order to ensure plenty of  

light and ventilation besides serving as a recreational  

ground for the children of the members of the Society. In  

these circumstances a decree of injunction was sought  

against the defendants in Suit No. 1/B of 1981  

particularly the defendant No.9 i.e. the petitioner herein  

from raising any construction on the land in question.  

By judgment and order dated 29th April, 1983 the said  

suit was decreed. L.P.A. No. 26/83 filed by the present  

4

Page 5

petitioner against the said judgment and order dated  

29th April, 1983 was dismissed and the decree passed by  

the Learned Single Judge was affirmed. According to the  

petitioner, in the course of the aforesaid proceedings, no  

issue with regard to the title of the petitioner to the land  

in question was raised and it was accepted by all the  

contesting parties that the petitioner was the owner of  

the said land measuring 19250 sq.mtrs. In fact, the only  

issue in the suit was with regard to the right of the  

petitioner to raise constructions on the said land or on  

any part thereof.  

(iii) It was the further case of the petitioner in the writ  

petition that an area of about 625 sq. mtrs. out of the  

open space in question was acquired under the  

provisions of the Land Acquisition Act, 1894 sometime in  

the year 1990 and in the said acquisition proceeding, the  

petitioner was treated as the absolute owner of the land.  

5

Page 6

In fact, according to the petitioner, the compensation  

payable under the Award was paid to the petitioner who  

had also filed a Reference Application under Section 18  

of the Act and had further carried the matter in an  

appeal to the High Court of Bombay.  

4. According to the petitioner the aforesaid facts show  

and establish the undisputed title of the petitioner to the  

land in question. Certain activities were, however,  

undertaken on the said land on 2nd January, 2011 and  

the inquiries made on behalf of the petitioner indicated  

that alongwith a project of beautification of the adjoining  

Miramar lake a project to develop the open land in  

question was proposed to be undertaken. Specifically, a  

jogging track, walk ways, recreational centres etc. were  

proposed. According to the petitioner, further inquiries  

revealed that such developmental work on the land was  

6

Page 7

proposed to be undertaken at the instance of the  

respondent No. 3 who is the local Municipal Councilor  

and, in fact, a Government Order dated 30th June, 2010  

had been passed in the matter by the Principal Chief  

Engineer, Public Works Department, Government of  

Goa. The petitioner had also averred in the writ petition  

filed, that the very first stipulation in the order dated  

30th June, 2010 required that tenders in respect of the  

developmental work on the land shall not be issued  

unless the land itself is acquired. However, without  

initiating any proceeding to acquire the land, a tender  

was floated sometime in September, 2010 and the  

respondent No. 4 was awarded the Work Order sometime  

in December, 2010 requiring completion of the  

developmental works on the land within 180 days. It is  

pursuant thereto that the works on the land were  

undertaken w.e.f. 2nd January, 2011. As the aforesaid  

actions of the respondents were not only in violation of  

7

Page 8

the Government Order dated 30th June, 2010 but also  

had the effect of depriving the petitioner of the  

ownership in the property in question, the petitioner  

filed the writ petition in question seeking interference of  

the High Court in the proposed developmental work  

which according to the petitioner had already  

commenced.

5. The respondents in the writ petition, including the  

Government of Goa and the Corporation of the city of  

Panaji apart from the Model Co-operative Housing  

Society, filed separate counter affidavits/written  

statements in the case. According to the State the open  

space in question was required to be kept free from any  

kind of construction under the planning laws in force  

and that the plot owners in the residential colony have  

an easementary right on and over the open space which  

8

Page 9

had been so declared by the High Court of Bombay in  

Civil Suit No.1/B/1981 and L.P.A. No.26/1983.  

Furthermore in terms of the judgments of the High Court  

in the aforesaid cases the petitioner was obliged to keep  

the open space so available and vacant at all times. In  

the affidavit filed the State had also contended that at no  

point of time the petitioner was interested in developing  

the open space and the same had become a dumping  

ground of garbage. In such a situation the Local  

Corporator of the Panaji Municipal Corporation was  

requested by the residents to intervene in the matter and  

develop the land into a recreational area. Initially the  

work was entrusted to the Goa State Infrastructure  

Development Corporation. Thereafter, the Goa State  

Urban Development Agency was entrusted with the  

responsibility. However, as both the aforesaid entities  

faced the problem of shortage of funds it was decided  

that the work will be carried out by the PWD, Goa. In the  

9

Page 10

affidavit filed it was further stated that the open space  

was to be developed into (a) Children Playing area, (b)  

Joggers Track, (c) Water Harvesting Pond, (d) Multi-

purpose court for cricket/football and (e) a Tennis court  

and an Amphitheatre. Such development which was to  

be to the benefit of all the residents, particularly the  

children and the elders, was estimated to cost around  

Rs.2.92 crores. It was specifically stated in the affidavit  

of the State, that the work had already commenced and  

almost 14% thereof had been completed.

In para 14 of the affidavit it was stated that in  

terms of the decision of this Court in Chet Ram Vashist  

v. Municipal Corporation of Delhi1, the petitioner has  

ceased to be the legal owner of the land and its position  

was that of a trustee holding the land for the benefit of  

the members of the Housing Society and the public at  

1  (1995) 1 SCC 47

1

Page 11

large. The petitioner had no right to use the land for any  

developmental work or to transfer or sell the same; it  

was merely a trustee of the land holding the same for a  

specific purpose i.e. beneficial utilization as an open  

space by the community at large. In a situation where  

the petitioner had done nothing to develop the open  

space for the public good, the Government had decided  

to step in and carry out the project for the benefit of the  

residents.  

6. In the affidavit filed by the respondent No.2 –  

Commissioner of the Municipal Corporation, Panaji, a  

claim that the open space had vested in the Corporation  

had been raised whereas in the affidavit filed on behalf of  

respondent No. 5 i.e. Model Cooperative Housing Society,  

the details of the judgment in Civil Suit No. 1/B of 1981  

had been mentioned under which the land in question is  

1

Page 12

required to be maintained as an open space so to enable  

the residents to have free access to light and air apart  

from recreational facilities. In the affidavit filed by the  

respondent No. 5, the decision of this Court in Chet  

Ram Vashist ‘s case (supra) had also been relied upon  

to contend that the legal title of the petitioner in the said  

open space stood extinguished and petitioner is holding  

the land only as a trustee on behalf of the residents of  

the locality.  As the petitioner had not discharged the  

duties cast upon it as a trustee and had utterly failed to  

develop the open space, the residents of the locality had  

approached the local Ward Councilor (respondent No.3)  

who had taken the initiative to develop the land in  

question.

7. The aforesaid detailed recital of the facts projected  

by the parties had become necessary as the order of the  

1

Page 13

High Court assailed in the present SLP does not contain  

any reference to the relevant circumstances in which the  

High Court had passed the impugned order or the  

reasons why the petitioner was relegated to the remedy  

of initiating a civil action.  Time and again this Court has  

emphasized that such a course of action by a Court  

cannot lead to a legally acceptable conclusion inasmuch  

as the manner of reaching the decision and the reasons  

therefor are sacrosanct to the judicial process.  However,  

we do not wish to dilate the aforesaid aspect of the  

matter any further in view of the clear and consistent  

insistence of this Court on the aforesaid fundamental  

requirement.

8. A reading of the order of the High Court would go to  

show that its refusal to interdict the developmental  

works undertaken or about to be undertaken is on the  

ground that the Petitioner has an efficacious alternative  

1

Page 14

remedy, i.e. a suit for injunction. The Writ Court  

exercising jurisdiction under Article 26 of the  

Constitution is fully empowered to interdict the State or  

its instrumentalities from embarking upon a course of  

action to detriment of the rights of the citizens, though,  

in the exercise of jurisdiction in the domain of public law  

such a restraint order may not be issued against a  

private individual.  This, of course, is not due to any  

inherent lack of jurisdiction but on the basis that the  

public law remedy should not be readily extended to  

settlement of private disputes between individuals. Even  

where such an order is sought against a public body the  

Writ Court may refuse to interfere, if in the process of  

determination disputed questions of fact or title would  

require to be adjudicated.   

1

Page 15

9. However, there is no universal rule or principle of  

law which debars the Writ Court from entertaining  

adjudications involving disputed questions of fact.  In  

fact, in the realm of legal theory, no question or issue  

would be beyond the adjudicatory jurisdiction under  

Article 226, even if such adjudication would require  

taking of oral evidence.  However, as a matter of  

prudence, the High Court under Article 226 of the  

Constitution, normally would not entertain a dispute  

which would require it to adjudicate contested questions  

and conflicting claims of the parties to determine the  

correct facts for due application of the law.  In ABL  

International Ltd. & Anr. V. Export Credit  

Guarantee Corporation of India Ltd.2, the precise  

position of the law in this regard has been explained in  

paragraphs 16, 17 and 19 of the Judgment in the course  

of which the earlier views of this Court in Smt.  

2 [2004 (3) SCC 553]

1

Page 16

Gunwant Kaur & Ors. v. Municipal Committee,  

Bhatinda & Ors.3 and Century Spg. & Mfg. Co. Ltd.  

v. Ulhasnagar Municipal Council4 has been referred  

to.  The aforesaid paragraphs of the judgment in ABL  

International Ltd. & Anr. v. Export Credit  

Guarantee Corporation of India Ltd. (supra) may,  

therefore, be usefully extracted below:

“16.   A perusal of this judgment though shows  that a writ petition involving serious disputed  questions of facts which requires consideration of  evidence which is not on record, will not normally  be entertained by a court in the exercise of its  jurisdiction under Article 226 of the Constitution  of India. This decision again, in our opinion, does  not lay down an absolute rule that in all cases  involving disputed questions of fact the parties  should be relegated to a civil suit. In this view of  ours, we are supported by a judgment of this  Court in the case of Gunwant Kaur v. Municipal  Committee, Bhatinda - 1969 (3) SCC 769 where  dealing with such a situation of disputed  questions of fact in a writ petition this Court  held: (SCC p. 774, paras 14-16)

“14. The High Court observed that they  will not determine disputed question of fact  in a writ petition. But what facts were in  

3 [1969 (3) SCC 769] 4 [1970 (1) SCC 582]

1

Page 17

dispute and what were admitted could only  be determined after an affidavit-in-reply  was filed by the State. The High Court,  however, proceeded to dismiss the petition  in limine. The High Court is not deprived of  its jurisdiction to entertain a petition under  Article 226 merely because in considering  the petitioner's right to relief questions of  fact may fall to be determined. In a petition  under Article 226 the High Court has  jurisdiction to try issues both of fact and  law. Exercise of the jurisdiction is, it is  true, discretionary, but the discretion must  be exercised on sound judicial principles.  When the petition raises questions of fact  of a complex nature, which may for their  determination require oral evidence to be  taken, and on that account the High Court  is of the view that the dispute may not  appropriately be tried in a writ petition, the  High Court may decline to try a petition.  Rejection of a petition in limine will  normally be justified, where the High Court  is of the view that the petition is frivolous  or because of the nature of the claim made  dispute sought to be agitated, or that the  petition against the party against whom  relief is claimed is not maintainable or that  the dispute raised thereby is such that it  would be inappropriate to try it in the writ  jurisdiction, or for analogous reasons.

15. From the averments made in the petition  filed by the appellants it is clear that in proof  of a large number of allegations the  appellants relied upon documentary  evidence and the only matter in respect of  which conflict of facts may possibly arise  related to the due publication of the  notification under Section 4 by the Collector.

1

Page 18

16. In the present case, in our judgment, the  High Court was not justified in dismissing  the petition on the ground that it will not  determine disputed question of fact. The  High Court has jurisdiction to determine  questions of fact, even if they are in dispute  and the present, in our judgment, is a case  in which in the interests of both the parties  the High Court should have entertained the  petition and called for an affidavit-in-reply  from the respondents, and should have  proceeded to try the petition instead of  relegating the appellants to a separate suit.”

17. The above judgment of Gunwant Kaur (supra)  finds support from another judgment of this Court  in the case of Century Spg. and Mfg. Co. Ltd. v.  Ulhasnagar Municipal Council –  1970 (1) SCC 582  wherein this Court held: (SCC p. 587, para 13)

“Merely because a question of fact is  raised, the High Court will not be justified  in requiring the party to seek relief by the  somewhat lengthy, dilatory and expensive  process by a civil suit against a public  body. The questions of fact raised by the  petition in this case are elementary.”

xxx xxx xxx

19. Therefore, it is clear from the above  enunciation of law that merely because one of the  parties to the litigation raises a dispute in regard to  the facts of the case, the court entertaining such  petition under Article 226 of the Constitution is not  always bound to relegate the parties to a suit. In  the above case of Gunwant Kaur (supra) this Court  even went to the extent of holding that in a writ  petition, if the facts require, even oral evidence can  be taken. This clearly shows that in an appropriate  case, the writ court has the jurisdiction to  

1

Page 19

entertain a writ petition involving disputed  questions of fact and there is no absolute bar for  entertaining a writ petition even if the same arises  out of a contractual obligation and/or involves  some disputed questions of fact.

10. The Petitioner in the present case claimed title to  

the land in question on the basis of the deed of  

Indenture dated 16.11.1977; the order of the Bombay  

High Court in Suit No. 1/B/1981 and LPA No. 26 of  

1983 as well as the proceedings of acquisition in respect  

of an area of about 625 sq. m. out of the open space in  

question.  The State did not claim any title to the land  

but had contended that by virtue of the judgment of this  

Court in Pt. Chet Ram (supra) the Petitioner had ceased  

to hold the normal attributes of ownership of immovable  

property in respect of the land in question and its  

position was more akin to that of a trustee holding the  

land for the benefit of the public at large.  The Housing  

Society (defendant No.5), on the other hand, claim  

1

Page 20

easementary right of enjoyment of the open space.  It is  

only the Municipal Corporation, Panaji (defendant No.2),  

who had claimed that the land has vested in it.  How and  

in what manner such vesting had occurred, however,  

had not been stated in support of the claim of the  

Corporation. There is complete silence in this regard. In  

such circumstances, it was incumbent on the High  

Court to undertake a deeper probe in the matter in order  

to find out whether the claim of the Corporation had any  

substance or had been so raised merely to relegate the  

Petitioner to a more “lengthy, dilatory and expensive  

process”  that is inherent in a civil suit. The High Court,  

in our considered view, ought not to have disposed of the  

Writ Petition at the stage and in the manner it had so  

done and, instead, ought to have satisfied itself that  

there was actually a serious dispute between the parties  

on the question of ownership or title.  Only in that event,  

the High Court would have been justified to relegate the  

2

Page 21

Petitioner to the Civil Court to seek his remedies by way  

of a suit.

11. On the view that we have taken, we have to  

conclude that the impugned order dated 18.08.2011  

passed by the High Court is not tenable in law.  

However, having arrived at the aforesaid conclusion the  

next question that has to engage our attention is what  

would be the appropriate order in the facts and  

circumstances of the case?

12. In the counter affidavit filed before this Court, the  

Respondent claims that about 40% of the work has been  

completed and extension of time for completion of the  

remaining work, as per the terms of the Contract, is  

being processed. Though the Petitioner disputes the  

aforesaid position, it may be reasonable to assume that  

2

Page 22

in absence of any interim order some progress in the  

execution of the developmental work has taken place  

during pendency of the present proceeding.  There is  

also no manner of doubt that the land in question being  

earmarked as open space and the said fact having been  

affirmed by the High Court in Civil Suit No. 1/B/1981  

and LPA No. 26 of 1983, the normal attributes of legal  

ownership of the land have ceased insofar as the  

Petitioner is concerned who is holding the land as a  

Trustee on behalf of the residents and other members of  

the Public.  The Petitioner cannot transfer the land or  

use the same in any other manner except by keeping it  

as an open space.  The aforesaid position flows from the  

decision of this Court in Pt. Chet Ram Vashist (supra)  

wherein such a conclusion had been reached by this  

Court in a largely similar set of facts.

2

Page 23

13. Keeping in mind the very limited rights of the  

Petitioner that are disclosed at this stage by the  

materials on record and taking into account the nature  

of the developmental works that were proposed and the  

fact that a part of the work may have been executed in  

the meantime, we are of the view that the Respondents  

should be permitted to complete the remaining work on  

the land and the petitioner should be left with the option  

of raising a claim before the appropriate forum for such  

loss and compensation, if any, to which he may be  

entitled to in law. Naturally, if any such claim of  

compensation is required to be founded on proof of  

title/ownership or any other such relevant fact(s), the  

Petitioner will have to establish the same. No part of the  

present order shall be construed to be an expression of  

any opinion of this Court with regard to the ownership or  

any other right or entitlement of the Petitioner which has  

to be proved in accordance with law.   

2

Page 24

14. Consequently, we dispose of the Civil Appeal in the  

above terms.

...……………………J.   [P SATHASIVAM]

………………………J.   [RANJAN GOGOI]

New Delhi, 10th September, 2012.      

2