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Judgment
F.M. Reis, J.—Heard Shri R. Rao, learned Counsel appearing for the appellant and Mrs. S. Linhares, learned Additional Government Advocate appearing for the respondents. The above appeal challenges the judgment passed by the learned Ad-hoc District Judge-2, FTC-II, South Goa, Margao, dated 22.11.2006 whereby the suit filed by the appellant came to be dismissed.
It is the case of the appellant that in the year 1989-90 or thereabout the appellant constructed a house/structure in the land surveyed under no.41/1 which was allotted house no.142 by the Village Panchayat of Calem for which house tax of Rs.3/- per annum was fixed in the year 1996. The Village Panchayat collected such lumpsum tax from time to time. It is further his case that besides the said structure, there is one more structure in the said land belonging to the parents of the appellant built somewhere in the year 1989. It is further his case that the said structure has been repaired by the appellant in the year 1996 by obtaining prior written no objection certificate from the panchayat. It is further claimed by the appellant that he obtained NOC from the panchayat for obtaining electricity connection in the year 2000. It is also the contention of the appellant that the said structure has been leased by the appellant to the Education Department and a Government Primary School is functioning therein since July, 2001. According to the appellant, the Village Panchayat of Calem has also constructed a free tap water connection and sulabh sauchalaya near the suit structure. It is further the case of the appellant that he received a letter/notice dated 01.10.2002 from the respondent no.2 wherein it has been stated that the appellant had errected illegal structure admeasuring about 50 square metres in the Government land in survey no.41/1 of Costi Calem Village of Sanguem Taluka without obtaining the requisite permission from the Government. It is further stated in the said letter/notice that the said illegal construction on Government land attracts consequences provided under the Goa Land ( Prohibition on Construction) Act, 1995 ( hereinafter referred to as ''the said Act of 1995") and accordingly a direction was given to the appellant to remove the said illegal structure from the Government land and vacate the same by 07.10.2002 failing which the said illegal structure would be removed. It is further his case that action of the respondents is hit by limitation and that if any action has to be taken against the suit structure, the respondent no.2 ought to have taken recourse under the provisions of Land Revenue Code and not under the said Act of 1995. Accordingly, the suit came to be filed by the appellant for declaring the notice dated 01.10.2002 issued by the respondent no.2 under the Goa Land Protection Act, and directing the appellant to remove the suit structure as bad in law and illegal and for permanent injunction restraining the respondent no.2 from action being taken by the said letter/notice.
Written statement came to be filed on behalf of the respondents wherein it has been contended that the suit structure located in the Government land was constructed somewhere in the month of March, 2002, illegally and without any authority and as such, the action was contemplated under the provisions of the Goa Land ( Prohibition on Construction ) Act, 1995. It is further their case that the respondents have right under the said provisions of the law to demolish any construction put up in the Government land. According to the respondents, in the month of March, 2002, the appellant carried out the illegal construction occupying an area of 50 square metres and as such according to them, they are entitled to take necessary action under the provisions of the said Act of 1995. It is further their case that the Circle Inspector has confirmed that the suit structure admeasuring an area of 50 metres has been illegally constructed in the Government land in the property surveyed under No.41/1. It is further their case that another illegal structure has been put up by the appellant in the said Government land surveyed under no.41/1 somewhere in the year 1995-96 and the said structure has been given on lease to the Education Department on payment of monthly rent of Rs.1200/-. It is further their case that the respondent no.1 has informed to the A.D.E.I. to take necessary action to demolish the said structure where the said premises are occupied by the Education Department. It is further their case that two structures were put up in the property surveyed under No.41/1 by the appellant being the suit structure constructed in the year 2002 and other structure constructed in the year 1995-96. It is further their case that the structure constructed in the year 1995-96 admeasuring an area of 66 square metres and the Dy. Collector has already taken action by filing eviction proceedings u/s 40 of the Land Revenue Code.
The learned Judge after framing of issues and recording of evidence and appreciating the evidence on record has come to the conclusion that the appellant has failed to establish that the letter/notice dated 01.10.2002 of the respondent no.2 is illegal. The learned Judge further came to the conclusion that the appellant has failed to establish that the respondent no.2 had not complied with the due process of law before issuing the said notice. The learned Judge further came to the conclusion that the appellant has failed to establish that the suit structure was constructed in the year 1989-90. The learned Judge further came to the conclusion that the respondents have established that the suit structure was constructed after coming into force of the said Act of 1995. The learned Judge further came to the conclusion that the respondents have established that the Court has no jurisdiction in view of Section 7 of the said Act of 1995. The learned Judge as such dismissed the suit filed by the appellant by the impugned judgment.
Shri Rao, learned Counsel appearing for the appellant has assailed the impugned judgment essentially on the ground that according to him, there is a structure having an area of 66 square metres which is located in the property surveyed under no.41/1 of Colem village and according to him, such construction cannot be the subject matter of the proceedings initiated under the said Act of 1995. The learned Counsel further pointed out that the respondents have leased the said premises to the Education Department which itself discloses that the said structure was existing much prior to the coming into force of the said Act of 1995. The learned counsel further pointed out that as far as the second structure which is located in the property surveyed under no.41/1 admeasuring an area of 50 square metres was, according to the learned counsel constructed in the year 1989-90. The learned counsel pointed out that the respondents have not disputed the date of the construction of the said structure of 50 square metres and as such, the question of invoking provisions of the said Act of 1995 would not arise. The learned Counsel has taken me through the evidence on record as well as the findings of the learned Additional District Judge and pointed out that the learned Judge has erroneously come to the conclusion that the suit structure has come up only after the coming into force of the said Act of 1995. The learned Counsel as such submitted that considering the fact that the suit structure was constructed much before the coming into force of the said Act of 1995, the question of demolishing the said structure on the basis of said Act of 1995 is totally misplaced. The learned counsel further pointed out that considering the facts and circumstances of the case, the impugned letter/notice issued by the respondent no.2 to demolish the suit structure deserves to be set aside. The learned Counsel has further pointed out that the learned Judge has misappreciated the evidence on record and has come to an erroneous conclusion that the appellant is liable to be demolished the suit structure. The learned Counsel further pointed out that considering that the said structure was constructed before coming into force of the said Act of 1995, the question of holding that Civil Court has no jurisdiction cannot be accepted. The learned Counsel as such submitted that the impugned judgment deserves to be quashed and set aside.
On the other hand, Mrs. S. Linhares, learned Additional Government Advocate appearing for the respondents has supported the impugned judgment. The learned Counsel pointed out that the appellant is unnecessarily creating confusion alleging that two structures are constructed in the suit property surveyed under no.41/1 which includes the house of the appellant where according to the learned Additional Government Advocate, the house of the parents is located in the property surveyed under no. 40/1. The learned Counsel further pointed out that as far as the structure admeasuring 66 square metres is concerned, the proceedings u/s 40 of the Land Revenue Code have been initiated before the competent authority which are still pending. The learned Counsel further pointed out that the subject matter of the notice is a structure admeasuring only 50 square metres which has been constructed in the year 2002 after the coming into force of the said Act of 1995. As such, the learned Counsel pointed out that considering the facts and circumstances of the case, the action initiated by the respondent no.2 is in accordance with the provisions of the said Act of 1995. The learned Additional Government Advocate further pointed out that considering that the property surveyed under no.41/1 is Government land and the proceedings have been initiated under the provisions of the said Act of 1995, in view of Section 7 of the said Act, the jurisdiction of Civil Court is barred. The learned Counsel as such submitted that the appeal deserves to be rejected.
Having heard the learned Counsel and on perusal of the records, the following points arise for my determination in the present appeal :
POINT FOR DETERMINATION
Whether the contention of the appellant to the effect that the suit structure includes the premises leased by the appellant to the Education Department ?
Whether the learned Judge was justified to come to the conclusion that the said structure admeasuring an area of 50 square metres was constructed after coming into force of the said Act of 1995 ?
Whether the learned Judge was justified to come to the conclusion that the Civil Court has no jurisdiction ?
Dealing with the first point for determination, in the written statement filed by the respondents, it has been specifically averred about the identity of the suit structure. The case of the respondents is very categorical to the effect that the place where the school is being run in an area of 66 square metres is the subject matter of the proceedings initiated u/s 40 of the Land Revenue Code which are still pending. Hence, the question of claiming that the structure of 66 square metres where the school is being run is the subject matter in the present proceedings is totally erroneous. The learned Judge has rightly come to the conclusion on the basis of the material on record that the subject matter of the suit structure has an area of 50 square metres and is a new structure, besides the said structure of 66 square metres where the school is being run by the Education Department. Hence, the first point for determination is answered accordingly.
With regard to the second point for determination, on perusal of the notice at Exhibit 38, the respondent no.2 has categorically pointed out the suit structure admeasuring an area of 50 square metres. Apart from that, on perusal of the evidence of the respondents, there is a categorical statement made by the respondents that in the property surveyed under no.41/1, there are two structures, one admeasuring an area of 66 square metres and another new structure admeasuring an area of 50 square metres. The respondents have also adduced evidence to establish that the said structure was put up by the appellant after the coming into force of the said Act of 1995. In fact, during the course of the hearing of the above appeal, Shri Rao, learned Counsel appearing for the appellant has fairly conceded that no evidence has been adduced by the appellant to establish the existence of the said structure in the year 1989-90 as claimed in the plaint. Considering the said aspect, the notice which has been issued at Exhibit 38 is in respect of the structure admeasuring an area of 50 square metres which has been constructed by the appellant after the coming into force of the said Act of 1995. In view of the discussions, while dealing with point no.1, the impugned notice does not include the structure admeasuring an area of 66 square metres where a school is being run by the Education Department. The second point for determination is answered accordingly.
As far as third point is concerned, a plain reading of Section 7 of the said Act of 1995, there is a bar for the Civil Court to try and entertain a dispute under the provisions of the said Act of 1995. Considering the facts and circumstances of the case, there is no dispute that the property where the suit structure is located is a Government land, and as such the respondents are entitled to initiate an action under the provisions of the said Act of 1995. In view of Section 7 of the said Act of 1995, the Civil Court has no jurisdiction to try and entertain a dispute raised in respect of the suit structure referred to herein above. The third point is answered accordingly. In view of the above, I find no merit in the above appeal which stands accordingly dismissed with no order as to costs.