Document Fragment View

Matching Fragments

(xxii) In the reply affidavit filed on behalf of respondent Nos.1 and 2 in Writ Petition No.330/1991 (appellants herein), it was pleaded that the petitioner is liable to be non- suited on the ground of laches and also on the ground that disputed questions of fact are involved. It was further pleaded that the writ petition has been instituted with an oblique motive at the instance of Dr. Alvaro de Souze Macahdo, one of the co-owners of survey No.792 and developer of Machado's Cove, namely, M/s. Alcon Real Estate Private Ltd., who filed Civil Suit No.67 of 1986 for similar relief but could not persuade Civil Judge, Junior Division, Panaji to entertain their prayer for temporary injunction. The appellants alleged that after having failed to secure injunction from the civil court, Victor Albuquerque, the partner of M/s. Alcon Real Estates Private Ltd. filed Writ Petition No.284/1991 and Minguel Martins filed Writ Petition No.330/1991 and this was indicative of the fact that the petitioner was in collusion with the developer of Machado's Cove. They also questioned, the locus of the petitioner by stating that plot bearing survey No.792 has not been sub-divided and he does not have any interest in that property. On merits it was averred that road, car parking facilities and footpath leading to the beach have been provided in accordance with the condition imposed by the Chief Town Planner and Gram Panchayat and the same are in existence since 1979 and are being used by the public without any obstruction. The appellants denied existence of a pathway through survey Nos.792 and 803 and pleaded that members of the public do not have the right to access the beach through survey No.803. The appellants also relied on Section 16 of the 1894 Act and averred that even if there existed access to the beach through the acquired land, the same stood extinguished after vesting of the land in the government, possession of which was given to appellant No.1 on 26.3.1985. On the issue of extension of hotel building, the appellants pleaded that additional construction was made in accordance with the permission granted vide order dated 15.4.1988 and after obtaining approval of the proposed deviation from the competent authority. As regards, the laundry and water treatment plant, it was averred that temporary sheds were constructed for laundry after obtaining permission from the Sarpanch of the Gram Panchayat and that treated effluent are intended to be used for gardening, manuring and other purposes for which no separate permission was necessary. The appellants referred to Suit No.313/1978/A filed by Gustavo Renato da Cruz Pinto and others for decree of possession by pre-emption and averred that the so called admissions made in the written statement about the existence of public pathway through plots bearing survey Nos.792 and 803 is not binding on them because contents of the written statement were not verified by the authorized representative of appellant No.2, on the basis of personal knowledge and in their rejoinder, even the plaintiffs had not accepted the existence of such pathway. In support of their plea that there is no public pathway or access to the beach through survey Nos. 792 and 803, the appellants relied on the judgment of Special Civil Suit No. 67/1986 - Alvaro De Souza Machado and another vs. Sociedade De Fomento Industrial Pvt. Ltd. and another.

2G. The beach existing at the south of property 803 and 787 is a public resort and it is visited by members of the public from all parts of llhas Taluka. For this purpose there is a ramp (stone construction) built on the ground in property 803 as a means of access to the beach. There is also a similar ramp in the property 787. The existence of the ramps and the date of their construction is lost in antiquity but has been known to exist at least for the last seventy years.
2H. In order to have access to the portion of the beach existing in the property 803, there is a footpath starting from the ramp and going towards North upto the culvert linking property 803 with property 792 of Machado therefrom after crossing the property of Machado in the same direction, it touches the public footpath going from Dona Paula to Calapur. At present, the said footpath touches the Panaji-Dona Paula-Bambolim road and crosses the property of Machado. 2I. The way mentioned in the proceeding para 2H is being used by members of the public living in the village Calapur and also by other members of the public coming from different parts of Taluka llhas. This way is clearly visible on site.

25. Shri Anil Divan, learned senior counsel appearing for the appellants heavily relied on judgment dated 13.3.2006 passed by Civil Judge, Panaji in Special Civil Suit No.67/1986 - Alvaro De Souza Machado and another v. Sociedade De Fomento Industrial Pvt. Ltd. and another and argued that the finding recorded by the High Court on the issue of existence of public access to the beach through survey No.803 should be treated as redundant because the same is entirely based on admissions made in the written statement filed on behalf of appellant No.2 in Special Civil Suit No.313/1978/A and the competent court has found that the same are not binding on the appellants (who were defendants in Special Civil Suit No.67/1986). He pointed out that learned Civil Judge, Panaji has found that written statement was not verified by the concerned person on personal knowledge and, therefore, admissions made therein cannot be made basis for recording an adverse finding against the defendants in the suit. In the first blush, this argument of the learned senior counsel appears attractive but on a closure scrutiny, we do not find any merit in it. The learned Civil Judge who decided the suit filed by Alvaro De Souza Machado and another relied upon the judgments of this Court in Nagubai Ammal & others v. B. Shama Rao & others (supra) and of the Allahabad High Court in Anurag Misra vs. Ravindra Singh and another (supra) and held that the admissions made in the earlier suit in paragraphs 2A, 2C, 2E, 2F to 2S, etc. cannot be treated as binding on the defendants because contents of the written statement were verified by using the words "true to the best of my information which I believe as true" and not on personal knowledge. This approach of the learned Civil Judge was clearly contrary to Order VI Rule 15 of the Code of Civil Procedure, which provides for verification of pleadings. Sub-rule (1) of Rule 15 lays down that save as otherwise provided, by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. Sub-rule (2) lays down that the person verifying shall satisfy, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon the information received and believed to be true. Sub-rule (3) requires that the verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. By amending Act No. 46/1999 the requirement of filing an affidavit by the person verifying the pleadings was incorporated but that provision does not have any bearing on this case.

49. We also do not find any substance in the argument of Shri Anil Divan that Court should not insist on continuance of public access to the beach through survey No.803 (new No.246/2) because the pathway going to Dona Paula-Bambolim Road which was available through survey No.792 (new No.242/1) (Machado's Cove) does not exist any more. The premise on which Shri Divan has made this argument, namely, non-availability of pathway through survey No.792 does not find support from the record of these appeals. Therefore, it is neither proper nor justified for this Court to deny the people of their traditional right of access to the beach through survey No.803 (new No.246/2) which goes to Dona-Paola-Bambolim Road by using the roads provided in survey No.792 (new No.242/1) (Machado's Cove). Re: 4