Bombay High Court
Mormugao Port Authority vs Lalita A. Kankonkar on 20 February, 2025
2025:BHC-GOA:263
2025:BHC-GOA:263 (13) WP 365.2021
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 365 OF 2021
MORMUGAO PORT AUTHORITY ...Petitioner
(formerly known as Mormugao Port Trust), Amendment
A body constituted under the carried out as
Major Port Authorities Act, 2021 per order dated
04.01.2024.
Having its office at Headland,
Sada-Goa.
Versus
Smt. Lalita A. Kankonkar
House No. 16,
Near MPT Old Office,
Mormugao Harbour, Goa. ...Respondent
Mr. Yogesh Nadkarni with Mr. Nilay Naik and Ms. Simran
Khadilkar, Advocates for the Petitioner.
Mr. Vledson Lucio Braganza with Mr. Ramchandra Phadte,
Advocates for the Respondent.
CORAM : VALMIKI MENEZES, J.
DATED : 20TH FEBRUARY, 2025.
ORAL JUDGMENT:
1. Heard learned Counsel for the parties.
2. Rule. Rule is made returnable forthwith; at the request of
and with the consent of learned counsel for the parties, the
matter is finally heard and disposed of.
20th February, 2025
(13) WP 365.2021
3. This petition takes exception to order dated 10.12.2018,
dismissing an Execution Application filed by the Petitioners,
who are the Decree Holders in Execution Application No.
21/2013, before the Civil Judge Senior Division at Vasco Da
Gama.
4. The Civil Court had decreed Special Civil Suit No.
12/2008/C by Judgment and Decree dated 10.04.2013. The
Decree attained finality for want of the Respondents filing any
Appeal and was sought to be executed to seek the demolition
of the house and the retaining wall in the suit property. In the
impugned order, the suit property was originally described
under Chalta No. 8 of P.T Sheet No.13 of the city survey of
Vasco. In the evidence, it has come on record, as recorded in
the findings of the Trial Court at paragraph No. 24, that the
Land Survey Department vide its letter dated 22.09.2008 at
Exhibit C-80 of the suit file, has shown land under old Chalta
No. 8 (which was the original description of the suit property),
to have been now allotted new Chalta No.4 of P.T. Sheet
No. 8. The findings in the Judgment and the Decree in the suit,
therefore, pertain to the suit property which, as noticed by the
Court to be new Chalta No. 4 of P.T Sheet No. 8. The suit
structure is described in paragraph No. 31 of the Judgment and
Decree and consists of a new illegally constructed house
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(13) WP 365.2021
encroaching upon 45 sq. mtrs. within the original plinth area,
and the retaining wall with the length of 10.60 mtrs.
5. The Executing Court appears to have proceeded on the
basis that there was no structure shown in the survey plan of
the land under Chalta No. 4 of P.T. Sheet No. 8 of city survey
Vasco, when in fact that was precisely the case of the
Petitioner/original Decree Holder before the Civil Court, that
construction, in the nature of an illegal house structure
admeasuring 45 sq. mtrs. and an illegal retaining wall of 10.60
mtrs was carried out by the Judgment Debtor in that very survey
number. The executing court has obviously proceeded on an
erroneous factual basis and has failed to exercise jurisdiction
vested in under the Code of Civil Procedure.
6. An executing Court would have all the powers within the
provisions of Section 51 CPC to determine all questions
relating to and including identity of the structures which were
the subject matter of the Decree. These powers can be exercised
in various manners by the Executing Court including by
appointing a Commissioner, inspecting the site, and
determining which was the structure(s) to be demolished under
the Decree. In the present matter, the Executing Court has
failed to exercise jurisdiction vested in it under provisions of
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(13) WP 365.2021
Section 51 CPC, which has resulted in the passing of the
impugned order.
7. The impugned order is therefore quashed and set aside
and the matter is remanded back to the executing Court to
follow the procedure laid down in Order 21 read with Section
51 CPC. The executing Court shall exercise such powers
vested in it to identify the structures which are the subject
matter of the Decree and proceed to execute the Decree in
accordance with law.
8. The impugned order stands quashed and set aside with
direction as mentioned above.
9. Rule is made absolute in the above terms. No order as to
costs.
10. The parties to appear before the Executing Court on
11.03.2025.
VALMIKI MENEZES, J.
20th February, 2025
