CPC Appellate Exercise

CPC APPELLATE EXERCISE
DONE BY- : GARVIT CHAUDHARY

ROLL NUMBER-: 26
BRIEF:
This appeal is in the form of a Misc. Civil Application No. 590 of 2010, and is filed by Goan
Real Estate& Construction Ltd. and Goa Hotels & Clubs Pvt. Ltd. It is filed for the dismissal
of the Writ Petition filed against the appellants No. 403 of 2007 by People’s Movement of
Civic Action & Goa foundations, who are the petitioners in the Writ petition and respondents
in this civil application.
GROUNDS OF ISSUES ON BEHALF OF THE APPELLANTS ( Against certain orders

passed in a suit before its final decision also appeal is provided under Section 104 read with
Order 43, Rule 1 C.P.C. These appeals in the District Courts are called Miscellaneous
Appeals and in Allahabad High Court as First Appeals from Orders (F AFO).)
 IT IS THE CASE OF APPELLANTS THAT THEY HAD COMMENCED

CONSTRUCTION IN ACCORDANCE WITH NEWLY APPROVED PLANS
WHICH REVALIDATED FROM TIME TO TIME AND ARE VALID TILL
DATE
The Appellant is the owner of the land, It submitted plans in the year 1993 for
construction of a hotel and a residential complex, MOEF issued CRZ notification
dated February 19, 1991, as per which the area upto 100 metres from the High Tide
Line was marked as “No Development Zone” and no construction was allowed.
However, another notification was issued on August 16 th 1994, amending the previous
notification and relaxing the “No Development Zone” from 100 mt. To 50 mt. Due to
this the appellant got additional construction of 18 blocks between 50 mt. To 100 mt.
Approved by The Town and Country Planning Authority on July 31, 1995. Based on
this order the village panchayat sanctioned their plans and granted permission to
construct.
 APPELANTS GOT THE LAND SURVEYED
The appellants made an application to the panchayat to inspect the construction made
on Survey No. 12/1 and 99/2 which were stretches of lands lying between 50 mt. And
100 mt. A Panchayat official inspected the site on September 25, 1996 and his report
indicated that the construction work was completed till foundation level, and in some
areas of the property, the construction of the building was complete and ready for
occupation.
 STOP WORK NOTICE ILLEGAL
Based on a complaint of Goa Bachao Abhiyan to the Chief Secretary regarding
alleged violation of CRZ norms, a stop work order was issued on December 22, 2006.
On December 28, 2006, Appellant made a representation to the MOEF to issue
clarification that the project of the Appellant was an On-Going Project and the same
was sanctioned according to the rules and regulations then applicable, the stop work
notice by Additional Collector was illegal.
 GOA COASTAL ZONE MANAGEMENT AUTHORITY DID NOT ACT

UPON THE DIRECTIONS
The MOEF by a letter dated January 24 th, 2007 clarified that new development
activities to be carried out in the zone of 50-100 mt. According to CRZ notification of
1991 from the date of the order of the Supreme Court, from April 18 th, 1996. In spite
of the receipt of the abovementioned communication, the Goa Coastal Zone
Management Authority did not act upon the directions issued by MOEF.
 CLARIFICATIONS SOUGHT AGAIN IN FEBRUARY 2007
A further clarification dated February 13th 2007, was issued by MOEF that any
development activity which initiated between August 16 1994 and April 18 1996 after
obtaining all the requisite clearances should be construed as On-Going Project. Even
after this clarification Stop-Work notice was not lifted.
 WRIT PETITION FILED BY THE APPELANT
Writ Petition No. 365 of 2007 in the High Court of Bombay at Goa, was filed by the
appellant to challenge the stop work orders, However it was disposed off because the
appellants did not press the said Writ petition as GCZMA had agreed to withdraw
their Stop work orders within a week.
 REFERRANCE TO NATIONAL COASTAL ZONE MANAGEMENT
AUTHORITY
It considered the matter in detail on October 30 th 2007. The authority concluded that
the stand taken by the MOEF was applicable to all cases, it was reported by the
NCZMA that this court while setting aside 2 out of 6 amendments dated August 16,
1994. In Writ Petition No. 664 of 1993 had not passed any orders with regard to cases
in which the construction had been completed or was in progress and, therefore all the
properties in which construction had been completed or was in progress, in between
August 16, 1994 and April 18, 1996 was valid.
 ORDER WAS NOT CHALLENGED BY THE RESPONDENTS
This Order by NCZMA pursuant to the order passed by the division bench of the
Bombay High Court, It is well to remember that the said order was never challenged
by the respondents before a higher forum and by their conduct, the respondents
permitted the said order to attain finality.
 APPELLANT WON’T GET ANY BENEFIT OF INTERPRETATION
A bare glance at the decision of NCZMA meetings makes it clear that the conclusion
that the stand taken by MOEF vide letters dated January 24th, 2007 & February 13th,
2007 was correct and was in accordance with CRZ notification 1991. It was
applicable to all the cases in coastal areas of the country. Therefore the plea taken that
only Appellants have been favoured by the authority and therefore the petition should
be dismissed and cannot be accepted.
Order VII Rule 11(d) Res Judicata
11. Rejection of plaint— The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law :
Section 11 Of CPC Explanation IV, V, and VI
11. Res judicata— No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Explanation IV.—Any matter which might and ought to have been made ground of defence or attack
in such former suit shall be deemed to have been a matter directly and substantially in issue in such
suit.
Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall,
for the purposes of this section, be deemed to have been refused.
Explanation VI.—Where persons litigate bona fide in respect of public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.
It is on the above material that Mr. Kamdar, learned senior counsel appearing on behalf of the
Appellants submits that this is a judgement (Indian Council for Enviro-Legal Action case)
between the same parties, the appellants are not relying on the observations and conclusions
as if this judgement of the supreme court is a precedent for some other case, it is the facts of
the very case, and between the same parties and noting their rival stands, that the supreme
court held as above. This judgement of the Hon’ble Supreme Court will, therefore, bind both,
the appellants as well as the original petitioners and other respondents. Now if, the writ
petition is perused together with its annexures, it would be apparent that this event being
subsequent and dealing with the same controversy, nothing survives for determination of this
Court in the writ petition. The writ petition is, therefore, liable to be dismissed.

CPC Appellate Exercise

Uploaded by

Copyright:

Available Formats

CPC Appellate Exercise

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

CPC Appellate Exercise

Uploaded by

Copyright:

Available Formats

CPC APPELLATE EXERCISE

DONE BY- : GARVIT CHAUDHARY

GROUNDS OF ISSUES ON BEHALF OF THE APPELLANTS ( Against certain orders

 IT IS THE CASE OF APPELLANTS THAT THEY HAD COMMENCED

 GOA COASTAL ZONE MANAGEMENT AUTHORITY DID NOT ACT

(a) where it does not disclose a cause of action;

Section 11 Of CPC Explanation IV, V, and VI

You might also like