The Deputy Collector (La) And Lao, Panaji And ANR., v. Shri. Joaquim Francis Fernandes (Dec) Thr. His Lrs. And 5 ORS.,

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.863 of 2016 1.

The Deputy Collector (LA) and L.A.O., Panaji 2.

The Town Planner, Town and Country Planning Dept. Panaji .. Petitioners Vs.

1.

Shri Joaquim Francis Fernandes (since deceased) through his legal heirs, 1a) Vistacao Rosa Fernandes widow, (deceased) through legal heirs 1b) Aloysium Paul Fernandes, son, 1c) Bosco Bruno Fernandes, son, 1d) Bernard Fernandes, son, 1e) Remedios James Fernandes, son 1f) Maria Juliana Fernandes, daughter, 1g) Michael Gregory Valerian Fernandes, son, 1h) Teresa Fernandes, daughter, 1i) Joaquim Fernandes, son in law, all residents of Candolim, Bardez, Goa.

2.

Smt. Ana Maria Joanita Fernandes (deceased), resident of Merces wadi, Merces, Ilhas, Goa, through her legal heirs, 2a) Joaquim Francisco Justiniano Estevs, son, 2b) Mrs. Alzira Estevs, daughter-in-law, 2c) Shri Francis Assis Justiniano Estevs, son,

2d) Mrs. Fatima Antonette Estevs, daughter in law, All residents of Bhuttem Bhat, Merces, Ilhas, Goa.

2e) Mrs. Natalina Escolastica Fernandes, daughter, 2f) Mr. Alerio Fernandes, son in law All residents of Parra, Mapusa, Bardez,Goa.

3.

Smt. Martina Adelis Fernandes, resident of Corlim, Ilhas, Goa.

4.

Smt. Arcanjela Fernandes, resident of Santa Cruz, Ilhas, Goa.

5.

Agostinho Matias Balbino Fernandes (deceased), through his legal heir, 5a) Smt. Maria Merciana Vaz e Fernandes 6.

Shri Domingos Jose Crisanto Fernandes (since deceased) 6a. Mr. Felix Oliveira Salazar Fernandes, son, and his wife 6b. Mrs. Fatima Figuereido Fernandes, Both residents of Bomonwado, Candolim, Bardez, Goa.

6c. Mr. Judas Tomas Tadeus Aquino Fernandes, and his wife, 6d. Mrs. Maria Natty Fernandes, Both residents of Bomonwado, Candolim, Bardez, Goa.

6e. Mrs. Aurita Antoneita Lalita de Souza, daughter and her husband, 6f.

Mr. Sereno Acacio Milagres Estaanislau de Suza,

Both residents of Dando, Candolim, Bardez, Goa.

6g. Mrs. Jackline Elvino Lobo, daughter, and her husband, 6h. Mr. Manuel Simao Lobo, Both residents of Dando, Candolim, Bardez, Goa.

6i.

Mr. Constancio Agnelo Fernandes, son, 6j.

Mrs. Pelifa Fatima D'Costa, and her husband, 6k. Mr. Wilfred D'Costa, Both residents of Dando, Candolim, Bardez, Goa.

6l.

Ana Severina Fernandes alias Severina Fernandes, widow of Domingos Fernandes, major of age, resident of Bamonwado, Candolim, Bardez, Goa.

..

Respondents.

Mr. Pravin N. Faldessai, Additional Government Advocate for the Petitioners.

Mr. J. Vaz, Advocate for respondent nos.1(b) to 1(i), 2(a) to 2(f), 3, 4 and 5(a).

Mr. J. Abreu Lobo, Advocate for respondent nos.6(a) to 6(l). CORAM :- C. V. BHADANG, J.

DATE:- 14 th February, 2017 ORAL JUDGMENT :

Rule, made returnable forthwith. The learned Counsel for the respective parties waive service. Heard finally by consent of the parties.

2.

The petitioners are challenging the order dated 20/04/2016, passed by the Executing Court in Execution Application No.17/2001 and 24/2011. A perusal of the order shows that the computation of the amount payable was obtained from the Nazir. In pursuance thereof, the petitioners/ Judgment Debtors are found to be liable to pay Rs.1,14,82,194/- as on 31/12/2014.

3.

The only contention raised on behalf of the petitioners is that in the computation of the Nazir, (at page no.118 of the compilation), the amount of Rs.44,20,063/- deposited by the Acquiring Body on 04/08/2012 before the District Court, has not been taken into consideration.

The learned Additional Government Advocate submits that this will also have a bearing on the amount of interest, to which the respondents are entitled. 4.

In such circumstances, the parties submit that the matter can be sent back to the Executing Court for passing fresh orders. In such circumstances and by consent of the parties, the following order is passed :

(i) Writ Petition is partly allowed.

(ii) The impugned order is hereby set aside.

(iii) The Executing Court shall obtain fresh computation from the Nazir and shall decide the application in accordance with law.

(iv) The parties are entitled to produce their respective computation before the Executing Court. (v) The amount of Rs.57,41,097/- deposited before Judgment is corrected as per order dated 12/04/2017 in W.P.863/16.

Sd/- P.S.

this Court shall be transferred to the Executing Court, along with interest, if any.

(vi) Rule is partly made absolute in the aforesaid terms, with no order as to costs.

C. V. BHADANG, J.

SMA