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TMI Blog2012 (9) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... red deed dated 16th November, 1977. Such open spaces, according to the petitioner, included a piece of land measuring about 19250 sq.mtrs. bearing Chalta 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 plots who had constructed their buildings thereon and had formed a co-operative society i.e. Model Cooperative Hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court in Chet Ram Vashist v. Municipal Corporation of Delhi[(1995) 1 SCC 47], 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 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 required to be maintained as an open space so to enable the residents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination disputed questions of fact or title would require to be adjudicated. 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.[ [2004 (3) SCC 553]], 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. Gunwant Kaur & Ors. v. Municipal Committee, Bhatinda & Ors.[ [1969 (3) SCC 769]] and Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council[[1970 (1) SCC 582]] has been referred to. The aforesaid paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 in absence of any interim order some progress in the execution of the developmental work ..... X X X X Extracts X X X X X X X X Extracts X X X X
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