AI Structured Summary
Not yet generated for this judgment
Judgment
U.V. Bakre
The above writ petitions filed under Articles 226 and 227 of the Constitution of India pertain to the same subject matter and involve common questions of facts and law and hence, are disposed of by this common judgment. In the Writ Petition No. 506/2009, the petitioners have prayed as under :
(A) This Hon''ble Court be pleased to issue a writ of mandamus or a writ in the nature of 11 mandamus or any other appropriate writ, order or direction, directing the Collector to revoke Conversion Sanad bearing No. CNV/TIS/41/90.
(B) This Hon''ble Court also be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the records and proceedings in Special Civil Suit No. 128/1982/A; Special Civil Suit No. 15/2001/A and Special Civil Suit No.222/1994/B, and after considering the legality and propriety of the Judgments and Decrees, be pleased to quash and set aside the same;
(C) This Hon''ble Court also be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Collector to decide the question in Case No. ILL/CNV/19/2009/881, whether there was any tenancy on the date on which the Goa Land Use Regulation, 1991 came into force; and whether any illegal conversion had taken place in respect of the said lands;
(D) This Hon''ble Court also be pleased to issue a writ of Prohibition or a writ in the nature of Declaration or any other appropriate writ, order or direction, directing the Deputy Collector not to consider the Judgments and 12 Decrees made in Special Civil Suit No. 128/1982/A; Special Civil Suit No. 15/2001/A and Special Civil Suit No. 222/1994/B, as the same are illegal, void ab-inito; and furthermore; not to consider conversion sanad bearing no. CNV/TIS/41/90 whilst proceeding with the inquiry in terms of the directions given by the Hon''ble High Court in Writ Petition No. 102/2009;
In Writ Petition No.557/2009, the prayer are as follows :
(A) This Hon''ble court may be pleased to issue a Writ of Mandamus or any other Writ, Order or Direction directing the Administrator of Communidade to comply with the direction of the High Court made in Writ Petition No.102/09 and redress the grievances of the Petitioner.
(B) For a Writ of Mandamus or any other Writ Order or Direction under Articles 226 and/or 227 of the Constitution of India directing the Administrator to exercise his powers under Article 371 of the Code of Communidade and to remove and demolish all the illegal construction constructed in the Communidade land bearing survey Nos.89/3, 90/1, 93/2, 93/3 and 93/4 of Bambolim Village.
(C ) For a Writ of Certiorari or any other Writ Order or direction calling for the records and proceedings before the Administrator of Communidade and after considering the legality, correctness and propriety of the Order dated 3.7.2009, this Hon''ble Court may be pleased to issue a Writ of Certiorari to quash and set aside the Order dated 3.7.09 and to Order/direct the Administrator of Communidade to take action under Article 371 of the Code of Communidade against Respondent Nos.3, 4, 5, 6, 7 and 8.
D) That the Petitioners are entitled for a Writ of Mandamus or any other appropriate Writ, Order of Direction in the nature of Mandamus to direct the Collector or the Administrator of Communidade to initiate proceedings under the Goa Land (Prohibition) Act against Respondent Nos. 8 to 13 and to prevent and demolish the illegal construction put up by Respondent Nos.10, 11, 12 and 13 and to further prevent Respondent Nos.8 to 13 from carrying out any further construction in Survey Nos.89/3, 90/1, 93/2, 93/3 and 93/4 of Bambolim Village.
(E) That the Petitioners are entitled for a Writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus to direct the Respondents authorities to stop all further construction in the properties surveyed under Survey Nos.89/3, 90/1, 93/2, 93/3 and 93/4 of Bambolim Village.
(F) That the Petitioners are entitled for a Writ of Certiorari or any other appropriate Writ, Order or Direction in the nature of Mandamus to recall/ revoke and cancel the construction license in the property surveyed under Survey Nos.89/3, to Mr. Sebastiao Botelho.
(G) That the Petitioners are entitled for a Writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus to order demolition of the illegal structure erected by Mr. Sebastiao Botelho in Survey Nos. 89/3 in terms of the Notice for demolition issued by the Administrator of Communidade.
(H) That the Petitioners are entitled for a Writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus to quash and set aside the mutation done in respect of Survey Nos.89/3, 90/1, 93/2, 93/3 and 93/4 of Bambolim Village deleting the names of the tenants.
(I) That the Petitioner is also entitled for a Writ of Mandamus or any other appropriate Writ, Order of Direction in the nature of Mandamus to direct Respondent Nos. 8, 9, 10, 11, 12 and 13 to stop all construction in Survey Nos. 89/3, 90/1, 93/2, 93/3 and 93/4 of Bambolim Village.
The petitioners in the Writ Petition No.577/2009 have prayed as under :
(A) That the Petitioners are entitled for a Writ of Mandamus or any other Writ, Order or Directions that the land surrendered by the tenants i.e. Survey No.90/1 be disposed off in the manner provided under sub section 2 of Section 18J of the Agricultural Tenancy Act, 1964.
(B) That the Petitioners are entitled for a Writ of Mandamus or Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction directing the State of Goa, Dy. Collector and SDO and the Mamlatdar to comply with the directions issued by the Hon''ble High Court made in Writ Petition No. 213/1998 and immediately stop the transfer of agricultural tenanted land under the provisions of the Goa Land Use (Regulations) Act, 1991, Goa Land Revenue Code and the Goa, Daman and Diu Agricultural Tenancy Act.
(C) That the Petitioners are entitled for a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction directing the State of Goa, Dy. Collector and the Mamlatdar, Tiswadi Taluka to comply with the directions issued by the Hon''ble High Court in Writ Petition No.213/1998 and Writ Petition No. 304/2000 and conduct an inquiry whether Respondent no.4, M/s. Raghurai Tamba has got a title to sell agricultural tenanted property and further more, to examine whether there was any tenancy in survey No. 90/1 of Bambolim village on the date on which the Goa Land Use (Regulations) Act, 1991 came into force and whether any illegal conversion had taken place.
Lastly in Writ Petition No.657/2011, the following are the prayers:
(A) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ Order or direction directing the Respondents State authorities No. 2 & 3 to identify and demarcate the Agricultural Tenant Properties as per the tenancy declaration orders dated 10/12/1971 and 20/12/1971 in Case bearing Nos. CAJ/ARC/PRC/10/END-11/71 and CAJ/ARC/18/71.
(B) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ Order or direction commanding the Respondents No.1, 2 & 3 to take action u/s 10 of the Agricultural Tenancy Act and transfer the land bearing Survey Nos. 89/3, 90/1, 93/2, 93/3 & 93/4 of Bambolim Village to the Government or to the Communidade of Bambolim.
(C) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction, directing an inquiry into the functioning of the Respondent No.5 the Communidade of Bambolim especially with regard to Survey Nos. 89/3, 90/1, 93/2, 93/3 & 93/4 of Bambolim Village
(D) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction, directing the Respondent No.1 to take over the management of the Respondent no.5 the Communidade of Bambolim.
(E) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ Order or direction, directing the Respondents not to proceed with any developmental works or transfer the title or create any third party rights upon Survey No.89/3, 90/1, 93/2, 93/3 & 93/4 of Bambolim Village.
(F) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ Order or direction, directing the Respondents No.3 to produce all the records pertaining to the tenancy status of land bearing Survey No. 89/3, 90/1, 93/2, 93/3 & 93/4 of Bambolim Village.
(G) For a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ Order or direction, directing the Respondents No. 1, 2 & 3 to treat this as a case of violation of the Agricultural Tenancy Act, the Goa Land Use Act and the Code of Communidade and to take appropriate action thereupon.
(H) For a Writ of Mandamus directing the Respondent Nos. 6 & 7 not to proceed with any allotment of the proposed plots in Survey Nos. 89/3, 90/1, 93/2, 93/3 & 93/4 of Bambolim Village.
The petitioners claim to be Gaunkars of the Communidade of Bambolim and say that under the Code of Communidades, they are entitled to file litigation to protect and preserve the land belonging to the said Communidade.
The petitions pertain to the properties bearing Survey nos. 89/3, 90/1, 93/2, 93/3 and 93/4 of village Bambolim. According to the petitioners, the said properties belong to the Communidade of Bambolim. They say that the property "OROS" bearing Lot No. 43, as per Tombassao Book No. 1, admeasuring 37,975 square metres, belongs to the Communidade and it bears survey nos. 89/3 and 90/1 whereas the property known as "SAVELI GALI", bearing Lots no. 47, 48 and 49, as per Tombassao Book No.1, admeasuring 97,500 square metres, also belongs to the Communidade and bears survey nos. 93/2, 93/3 and 93/4.
The petitioners, in short, have stated as under;
On 20/12/1971, late Raiu Ishwar Gaunso from Bambolim obtained a declaration of tenancy through case No. CAJ/ARC/PRC/18/71 from Mamlatdar of Tiswadi by making late Salvador Bartolomeu Monteiro along with the Communidade of Bambolim as parties to the said proceedings, in respect of cashew garden known as ''OROS'' situated at Bambolim. On 12/12/1971, various persons namely Parshuram Cuncolkar, Luis Rosario, Sebastiao Gomes and Bicario Gomes obtained declaration as deemed tenants of the cashew garden namely (a) "SAVELI GALI SEGUNDO LANSO" and (b) ''SAVELI GAL TERCEIRO LANCO''. These tenanted lands are situated within the property belonging to the Communidade bearing Survey nos. 89/3, 90/1, 93/2, 93/3 and 93/4 of Bambolim village. Thereafter, the tenant Raiu Ishwar Gauns filed Special Civil Suit No.128/1982/A before the Court of Civil Judge, Senior Division at Panaji and by judgment dated 06/08/1986, the Communidade of Bambolim was directed to pay to the said Raiu Gauns, a sum equivalent to 50 % compensation received by the Communidade of Bambolim under the Land Acquisition Act with interest at the rate of 6 % p.a. This judgment was made primarily on the ground that RaIu Ishwar Gauns was declared as a deemed tenant by the Mamlatdar in respect of Cashew garden situated in Survey nos. 89/3 and 90/1 of Bambolim village. It came to light that a collusive suit was filed by Mrs. Dionisia Dias e Mergulhao Vs. Raiu Ishwar Gauns bearing Special Civil Suit No.15/2001/A which came to be decreed on admissions and the name of Raiu Ishwar Gauns was ordered to be deleted from Forms No. I and XIV of Survey No.90/1, as a tenant. The Communidade of Bambolim had also filed Special Suit No.222/1994/B against late Maximo Mergulhao before the Court of Civil Judge, Senior Division at Panaji and this suit was compromised by filing consent terms whereby the suit property was agreed to be developed and plots were agreed to be allotted to the parties. The Communidade of Bambolim had no authority in law to give consent and to agree with any party to develop, sell or agree to sell or agree to permanently alienate the Communidade''s lands without prior permission of Government of Goa or the prior consent or permission of a President of the Administrative Tribunal. The said judgment and decree passed in Special Civil Suit No.222/1994/B is dated 21/11/1998. Another suit being Regular Civil Suit No.6/2007/C was filed in the Court of Civil Judge, Junior Division, Panaji by Pascoal Trinidade against the legal representatives of Parshuram Cuncolkar, Luis Rosario, Sebastiao Gomes and Bicario Gomes and in this suit also consent terms were filed and the persons who were declared as tenants made a declaration before the Civil Court that their names have been erroneously recorded as tenants in tenant''s column. The said judgments and decrees were obtained by fraud and collusion by respondents no.3 to 21 and the petitioners came to know about this fraud when such respondents filed their replies in case No. ILL/CNV/19/2009- 881 before the Deputy Collector and S.D.O., Panaji who was conducting an inquiry pursuant to the directions given by Hon''ble High Court in Writ Petition No. 102/2009. The parties in Special Civil Suit No. 15/2001/A and Regular Civil Suit No. 6/2007/C have grossly abused the process of the Civil Court as there is prohibition imposed by the Goa Land Use (Regulation) Act. The aforesaid tenants could not have obtained declaration before the Civil Court to delete their names from the tenant''s column. On the basis of the declaration obtained by the respondents no. 3 to 21 before the Civil Court in the decrees made in Special Civil Suit No.128/1982/A, Special Civil Suit No. 15/2001/A and Regular Civil Suit No. 222/1994/B, the Collector has issued conversion sanad. The petitioners, being aggrieved by the said consent decrees in the Special Civil Suits and refusal of the Collector in deciding the case No. ILL/COV/19/2009/881 regarding the questions whether there was any tenancy on the date on which the Goa Land Use (Regulation) Act, 1991 came into force and whether any illegal conversion had taken place in respect of the said lands, filed Writ Petition No.506/2009.
According to the petitioners, further facts came to their knowledge, which have been stated by them in Writ Petition No. 557/2009 and they are; On 25/04/2006, three sale deeds were made by the tenants in favour of Raghurai Tamba. On 21/12/2004, a sale deed was executed by the tenant in favour of Mr. Sebastiao Bothelho with respect to Survey No. 89/3 of Bambolim village. On 05/09/2007, construction licence was granted by the Village Panchayat of Bambolim to Mr. Sebastiao Bothelho with respect to said Survey No.89/3 at Bambolim village. On 12/12/2008, the Administrator of Communidades Central Zone, Panaji issued show cause notice to Mr. Sebastiao Bothelho with respect to illegal construction in the said Survey No. 89/3 of Bambolim village and a direction for demolition of the same. However, since the Administrator of Communidades did not take any further action, the petitioners, in January, 2009, filed Writ Petition No.102/2009. This Court disposed of the said Writ Petition No.102/2009 by directing the Administrator of Communidades and the Collector to inquire into the grievances of the petitioners and thereafter to pass appropriate orders, in any case not later than six weeks and preferably after giving the petitioners hearing in accordance with law. On 22/05/2009, the Administrator of Communidades issued a letter to the petitioners to remain present in his office on 27/05/2009 at 11.00 a.m. On 02/07/2009, the petitioners sent a legal representation to the Administrator of Communidades notifying him to give the petitioners a hearing while complying with the order of the High Court dated 18/02/2009. On 03/07/2009, the Administrator of Communidades passed an order stating that although there is fraud being played by the builders to grab the property of the Communidade of Bambolim, the Administrator is unable to take action under Article 371 of the Code of Communidade, thereby protecting respondents no. 3 to 8 of the Writ Petition No. 557/2009 from legal consequences. Aggrieved by the inaction on the part of the Administrator of Communidades, the petitioners filed the said Writ Petition No. 557/2009.
The petitioners say that it was found that M/s Raghurai Tamba continued to sell the properties about which the matter was pending before the Deputy Collector and S.D.O. at Panaji which properties were agricultural tenanted properties and which were being transferred in spite of the directions issued by the High Court and statutory bar that no agricultural tenanted land can be allowed to be transferred, sold unless and until procedure established by law is followed. On 11/09/2009, the petitioners made a representation to the Mamlatdar and Deputy Collector, S.D.O. at Panaji to immediately stop the sale of the property under Survey No. 90/1 of Bambolim Village as the same has been declared to be an agricultural tenanted property by the Mamlatdar and that the orders of the Civil Court is without jurisdiction. Therefore, for appropriate further reliefs, Writ Petition No. 577/2009 came to be filed.
Writ Petition No. 102/2009 was disposed of with a direction to the Administrator and to the Collector to conduct enquiries regarding alleged illegal, unauthorized constructions carried out by private respondents on the agricultural land and without compliance of any statutory provisions. The Deputy Collector and S.D.O. at Panaji started enquiry under Case No. ILL/CNV/TIS/19/2009 and in the course of enquiry, the Mamlatdar under cross-examination stated that the declarations of tenancy made in Case No. CAJ/ARC/PRC/18/71 dated 20/12/1971 and Case No. CAJ/ARC/PRC/10/71 and 11/71 dated 10/12/1971 are not traceable and that the xerox copies of the same produced on record are bogus.
On 04/01/2009, an application was made by the petitioners before the Deputy Collector and S.D.O. for direction to the Mamlatdar to produce records pertaining to the tenancy, before the Deputy collector, in the said enquiry. The application came to be rejected by the Deputy Collector and S.D.O., constraining the petitioners to file Writ Petition No.9/2010, which came to be disposed of, inter alia, by directing the Deputy Collector and S.D.O. to conduct enquiry and ascertain as to how the orders are not traceable in the office. In the said writ Petition No. 9/2010, it was further directed that the certified copy of the document at exhibit PW1/A, produced in Special Civil suit No. 128/1982, should be produced before the Deputy Collector and S.D.O. who should treat the same as true certified copy of the said document. On 01/08/2011, the said case no. ILL/CNV/TIS/19/2009/881 came to be concluded. Aggrieved by the said order dated 01/08/2011 made in the case no. ILL/CNV/19/2009/881, on the ground that the Deputy Collector and S.D.O. has deliberately refused to comply with the direction made by this Court in Writ Petitions no.102/2009 and 9/2010, the petitioners filed Writ Petition No.657/2011.
The Attorney of the Communidade, namely Felix Monteiro has filed Affidavit-in-reply in the Writ Petitions No. 506/2009 and 577/2009. He has stated as under:
The Communidade of Bambolim is the owner of the properties surveyed under no. 89/3, 90/1, 93/2, 93/3 and 93/4 of village Bambolim. On 1/12/1994, the Communidade filed the Special Suit NO. 222/1994/A, for declaration of ownership, against Maximo Margulhao, in respect of survey no. 89/3. On 19/11/1998, compromise terms came to be filed in the said suit, without approval/resolution of the General Body and without approval of the Administrative Tribunal, as required under the Code of Communidades. By the said compromise terms, the Communidade relinquished their claim to the properties surveyed under nos. 89/3, 90/1, 93/2, 93/3 and 93/4 admeasuring about 1,35,000 square metres, in favour of the legal representative of deceased Maximo Mergulhao, namely Mrs. Dionisia, for consideration of 5 plots of developed land to be allotted to the Communidade and 40 plots to be allotted to the Gaunkars of the Communidade of Bambolim. The Special Attorney of the Communidade had conspired with Mrs. Dionisia Dias e Mergulhao and Raghurai Tamba to compromise the said suit and thus to cheat the Communidade.
The private respondents, who have purchased the said properties for the purpose of development and construction, namely Pascoal Trinidade and Raghurai Tamba have filed their affidavits-in-replies,
It is the case of Shri Pascoal Trinidade that vide registered conveyance deed dated 25/04/2006, he became the owner of the properties bearing Survey nos. 93/2, 93/3 and 93/4 and since then, he is in occupation and physical possession of the said properties and is the bonafide purchaser of the same. The said properties were not owned by the Communidade. At no point of time, the property was mutated in the name of Communidade and at no point of time, the name of Communidade was entered into the revenue records. The said properties bearing Survey No.93/2, 93/3 and 93/4 were and are the private properties and Shri Pascoal Trinidade purchased them from previous owners for valuable consideration. Since it was found that certain names were erroneously entered in the tenant''s column by the Revenue Authorities without following any procedure prescribed by law, he filed Civil Suit against Pundalik Kunkolkar and 13 others bearing Regular Civil Suit No.6/2007/C before the Court of Civil Judge, Junior Division, Panaji for declaration that Pascoal Trinidade is the exclusive owner in possession and enjoyment of the properties bearing Survey Nos. 93/2, 93/3 and 93/4 admeasuring about 97,500 square metres and for deleting erroneous entries in the tenant''s column on survey records. The said suit was decreed by judgment and order dated 25/01/2007, inter alia, holding Shri Pascoal Trinidade as the owner of the said properties bearing Survey Nos.93/2, 93/3 and 93/4. The persons, who were made defendants in that suit, admitted that their names were wrongly recorded as tenants and that they were never tenants of those properties. At the relevant time, there was a G.R. issued by the Government of Goa stating that only the Civil Courts have jurisdiction and, therefore, Shri Pascoal Trinidade was advised to file civil suit. Pursuant to the said decree in the Regular Civil Suit No.6/2007/C, the said persons and the legal heirs, whose names were erroneously recorded in the survey records approached the Deputy Collector and filed an application u/s 103 of the Land Revenue Code, 1968 admitting that Shri Pascoal Trinidade is the owner of the properties bearing Survey Nos. 93/2, 93/3 and 93/4 and that their names were wrongly recorded in the tenant''s column and requesting to delete the same. The said application was treated as Case No. LRC/COR/8/2007 and after conducting a detailed enquiry, the Deputy Collector and S.D.O. by judgment and order dated 03/04/2007 allowed the said application and directed the Mamlatdar of Tiswadi to delete the said names from Survey Records. The Mamlatdar of Tiswadi, accordingly, carried out the deletion of the said names. Shri Parshuram Kunkolkar and others were not declared tenants with respect to the properties bearing Survey Nos. 93/2, 93/3 and 93/4 either by order in Case No. CAJ/ARC/PRC/18/71 or Cases No. CAJ/ARC/PRC/10/77 and 11/71. The Communidade of Bambolim had filed the suit being Special Civil Suit No.222/1994/B against one Mergulhao since deceased through L.R. Mrs. Dionisia Dias e Mergulhao for declaration that the property surveyed under No.89/3 is part of the property name ''OROS'' belonging to the Communidade. Vide consent decree dated 21/11/1998, the said suit was compromised and decreed. The said suit was filed by the Jeronimo Monteiro, Special Attorney of the Communidade and it was filed only in respect of Survey No.89/3 and in compromise, the Communidade agreed to take 45 plots in Survey Nos. 93/2, 93/3 and 93/4. If the case of the petitioners is assumed to be correct and the said properties exclusively belong to Communidade, one fails to understand as to why the Communidade would settle to take 45 plots in their own property. This shows that the Communidade never owned Survey nos. 93/2, 93/3 and 93/4. Pursuant to the decree, the development work is carried out by Shri Raghurai Tamba in Survey No.89/3 only. The suit between the said Mergulhao since deceased through L.R. Mrs. Dionisia Dias e Mergulhao and Communidade was only in respect of the property bearing Survey No. 89/3 and the Communidade had never claimed the properties bearing Survey Nos. 93/2, 93/3 and 93/4 in the said suit or at any time in the past or thereafter.
It is further stated by Pascoal Trinidade as follows: The development activities commenced in Survey No.89/3 in the year 1993 and after the conversion sanad was issued by the Collector. Subsequently, road, gutter and even some construction has come up in the said property. No efforts were made by the office of the Communidade or any Gaunkars to recover the possession of the said properties or to get the properties bearing Survey Nos.93/2, 93/3 and 93/4 entered in the name of the Communidade. The Forms No. I and XIV of properties bearing Survey Nos. 93/2, 93/3 and 93/4 show the name of private persons as the owners of the properties. The Deputy Collector, after carrying out the detailed inquiry as ordered by this Court, has come to the conclusion that the orders in Case nos. No. CAJ/ARC/PRC/18/71 or Case No.CAJ/ARC/PRC/10-11/71 supposedly filed by Raiu Ishwar Gauns and Parshuram Kunkolkar and others respectively against the Communidade do not and cannot pertain to the properties bearing Survey Nos.93/2, 93/3 and 93/4. The learned Deputy Collector has also rightly recorded that the entries made in the column, without there being declaration u/s 7 of the Tenancy Act, can be deleted and there is no bar to approach the Civil Court. The petitioners have failed to produce any documentary evidence to show that the properties bearing Survey Nos. 93/2, 93/3 and 93/4 were owned by the Communidade at any time. The learned Deputy Collector has taken into consideration all the directions passed by this High Court in Writ Petition No.102/2009 and Writ Petition No. 9/2010. The petitioners had produced variouis documents before the Deputy Collector. The certificate of Communidade of Bambolim, issued after examining the registered book ''Tombo'' which speaks about the properties of the Communidade namely Lote No.47, Lote No.48 and first Lote No.48 and second Lote and Lote No. 49 shows that the total area comes to about 34,571 square metres. Therefore, this document does not take the case of the petitioners any forward as it is not reflected from this document that Survey Nos. 93/2, 93/3 and 93/4 were owned by the Communidade., In fact, all the documents produced by the petitioners before the Deputy Collector were not of any assistance to the petitioners to prove that Survey Nos. 93/2, 93/3 and 93/4 were owned by the Communidade of Bambolim. The petitioner himself is the President of the Communidade of Bambolim and has suppressed this fact from this Court and has chosen to litigate in his own name. The petitioner became the President of respondent no. 5 in April, 2010 much prior to the filing of Writ Petition No. 657/2011. The petitioners have suppressed the order dated 19/09/2011 passed by this Court in the said Writ Petition No.102/2009. This Court, after taking note of the order dated 01/08/2011 passed by the Deputy Collector, has observed that no further orders are necessary. No liberty was granted to the petitioners to file fresh writ petitions. The petitioners have suppressed from this Court that many of the properties belonging to the Communidade of Bambolim were in fact acquired by the State of Goa. There are various orders passed by the authorities as well as by the Courts in respect of the acquisition of land bearing Survey No.93 from which an area was acquired and carved out as separate Survey No.93/1. However, the entries in respect of remaining subdivisions bearing Survey Nos. 93/2, 93/3 and 93/4 were kept intact. Neither the petitioners nor the Communidade of Bambolim challenged the said order and the same has attained finality. The name of the predecessor-in-title of Shri Pascoal Trinidade was recorded in the Survey Records as the owners of the said properties even prior to promulgation of the records. In terms of Section 105 of the Land Revenue Code, there exists presumption of title in favour of the person in whose name the properties stand recorded.
Shri Raghurai Tamba, in his affidavit-in-reply, filed in Writ Petition No. 506/2009 has stated as follows :
The petition raises several disputed questions of facts as also question of title to the property which cannot be gone into by this Court in exercise of extraordinary writ jurisdiction. The order dated 20/12/1971 passed by the Mamlatdar is not in relation to the properties bearing Survey Nos. 89/3, 90/1, 93/2, 93/3 and 93/4. The said properties were originally owned by Alexandre Rodrigues/ Maria Conceicao Rodrigues and later passed on to Maximo Mergulhao after which they were inherited by Mrs. Dionisia Dias e Mergulhao. The said properties, amongst others,are Surveyed under Nos. 89/3, 90/1, 93/2, 93/3 and 93/4. The Communidade has no right, title or interest in the said properties. All the properties in the said locality are known as ''OROS'' and there are many other properties existing in that name in the said area. The petitioners have suppressed the communication dated 29/09/2008 addressed by Mr. Carmon U. C. D''Souza to Shri Pascoal Trinidade which letter refers to a meeting wherein the members proposed that an amount of Rs. 5710/- per square metre be paid to the Communidade. The petitioner Noel Monteiro is signatory to the said letter. In the garb of protecting the Communidade''s land (when admittedly the land covered under the said five Survey numbers does not belong to the Communidade), the petitioners want to extort money and use the litigation to blackmail the said builders. The petitioners have made false statements on oath and, therefore, they have committed offence of perjury. The judgments and decrees passed by the Civil Courts in the civil proceedings have not been challenged in any Forum or Court having jurisdiction to set aside the same and, therefore, the petitioners are not entitled to challenge them in the writ jurisdiction and that too after lapse of considerable time. As far as Survey No. 89/3 is concerned, the Deputy Collector and S.D.O., Panaji has conducted inquiry as per the directions issued by this Court in Writ Petition No. 7/2000 and order dated 05/09/2000 in Writ Petition No. 291/2000 with Writ Petition No. 305/2000. After a detailed inquiry, the Deputy Collector has passed an order dated 15/01/2001 concluding that there is no tenancy with respect to Survey No. 89/3. The petition is grossly hit by delay and laches since the petitioners are challenging conversion sanad of the year 1993 and the judgments and decrees passed by the Court in the year 1998. The petitioners have no where explained as to why there is such a huge delay. The plots in the said properties have been sold, wherein third party rights have been created and, therefore, the petitions are bound to be dismissed. The respondents had filed an application for recall of the ex-parte order dated 18/02/2009 passed by this Court in Writ Petition No. 102/2009 on various grounds. The dispute raised by the petitioners does not involve any public interest and it does not involve any interest of the Communidade. The petitioners are deliberately trying to create confusion in so far as the judgment and decree dated 06/08/1986 by which the Communidade of Bambolim has been directed to pay Rs.15,710/- to Raiu Ishwar Gauns on the ground that he is a deemed tenant. The land concerned in the said judgment does not belong to Shri Raghurai Tamba and he is not a party to the same. The said judgment pertains to that part of the earlier total land which was surveyed under Survey No. 90/1 and land belonging to Shri Raghurai Tamba has been allotted a separate Survey number pursuant to order dated 15/01/1982 passed by the Statutory Authority under the Goa Land Revenue Code, 1968 whereby a statutory enquiry under Rule 2(2) of the Goa, Daman and Diu Land Revenue (Enquiry into the title of land) Rules 1969, to separate portion of land acquired by the Government admeasuring 25.4250 Hectares from Survey No.93 of Village Bambolim was made. The existing entries of Survey No. 93/2, 93/3 and 93/4 had been retained as per the said order and so called decree for refund of the amount of Rs.15,710/- pertained to that part of Survey No.93/1, which was tenanted land belonging to the Communidade and held by the tenant Raiu Ishwar Gauns but was not the same land as was purchased by Raghurai Tamba from Mergulhao. The Communidade of Bombolim and Administrator of Goa, Daman and Diu were parties to the said proceedings and had accepted the order which has not been challenged. The properties mentioned in the petition do not match with the Survey Records and the boundaries of the properties at loco. On 25/04/2006, three sale deeds were made by the erstwhile owner Mr. Dionisia Dias e Mergulhao in favour of Pascoal Trinidade and in these sale deeds, M/s. Raghurai Tamba was a confirming party. The alleged deemed tenants were not even parties to the sale deeds pertaining to Survey Nos. 93/2, 93/3 and 93/4 which lands are in ownership and possession of Mr. Pascoal Trinidade. Till date, the sale deeds dated 25/04/2006 have not been challenged. The conversion sanad in respect of Survey No. 89/3 was obtained way back in the year 1993 and no civil suit was filed in respect of Survey No. 89/3. The averments of the petitioners that sanad was issued on the basis of decree in the civil suit is a false statement. In so far as Survey No.89/3 is concerned, the Land Revenue Code proceedings were taken out against tenants upon having realised that in Form No.1 of Survey No.89/3, the names of certain persons namely Manguesh Kankonkar, Smt. Ganga Manguesh Kankonkar, Raiu V. Gauns, Smt. Tulsi R. Gauns were erroneously found recorded in the tenant''s column in Form No. I only and not in Form No. III as there were no tenants at all with regard to the said land. By judgment and order dated 30/04/1992, passed in Appeal No.15/1991, the Administrative Tribunal was pleased to order deletion of the said erroneous entries upon accepting the case of the parties that the said persons were not tenants of the property bearing Survey No.89/3 of village Bambolim.
It is stated by the said respondents that the petitioners have not come before the Court without clean hands and they have suppressed various material facts from the Court. According to Pascoal Trinidade, by filing petition after petition, relating to the same subject matter, the petitioners are virtually harassing the builders and are stalling the development project thereby resulting into huge monetary loss as well as agony. The petitioners, knowing fully well that they do not have any rights in respect of the land bearing Survey Nos. 93/2, 93/3, 93/4, are filing false and frivolous litigations. None of the statutory rights or fundamental rights of the petitioners are infringed. The petitioners have other alternate and efficacious remedy against the order passed by the learned Deputy Collector. Writ Petition No.657/2011 is also barred by principles of res judicata as the reliefs claimed therein are similar to those claimed in earlier writ petitions.
The contesting respondents further say that the petitions also suffer from delay and laches, which are not explained by the petitioners. Various questions of facts, decided by the Deputy Collector in the inquiry, have been disputed by the petitioners, which cannot be gone into in a writ jurisdiction. The petitioners are trying to mislead the Court by mentioning five different properties together. As far as the properties bearing Survey Nos.89/3 and 90/1 are concerned, they are not only owned by different persons, but are at different locations and the construction work has commenced with necessary permissions in the property bearing Survey No.89/3. Survey Nos. 93/2, 93/3 and 93/4 are situated at different locations and far away from Survey Nos. 89 and 90. The properties bearing Survey Nos. 93/2, 93/3 and 93/4 are private properties and all the contesting respondents are also individuals.
In the Writ Petition No.506/2009, there are affidavits-in-rejoinder and sur-rejoinder filed by the parties.
In the additional affidavit-in-reply filed by Pascoal Trinidade, in the Writ Petition No. 657/20 he has stated as follows:
The petitioners have suppressed the order dated 19/9/2011 passed by this Court in Writ Petition NO. 102/2010. This Court, after taking note of the order dated 01/08/2011 passed by the Deputy Collector, has observed that no further orders are necessary. No liberty was granted to the petitioners to file fresh writ petitions. The petitioners have suppressed from this Court that many of the properties belonging to the Communidade of Bambolim were in fact acquired by the State of Goa. There are various orders passed by the authorities as well as by the Courts in respect of the acquisition of land bearing Survey No.93 from which an area was acquired and carved out as separate Survey No.93/1. However, the entries in respect of remaining subdivisions bearing Survey Nos.93/2, 93/3 and 93/4 were kept intact. Neither the petitioners nor the Communidade of Bambolim challenged the said order and the same has attained finality. The name of the predecessor-in-title of Shri Pascoal Trinidade was recorded in the Survey Records as the owner of the said properties even prior to promulgation of the records. In terms of Section 105 of the Land Revenue Code, there exists presumption of title in favour of the person in whose name the properties stand recorded.
Heard learned Counsel for the parties and perused the entire material on record.
From the records, it is seen that in tenancy cases No. CAJ/ARC/PRC/18/71 and CAJ/ARC/PRC/10 and 11/71, the survey numbers of the property were not mentioned. There is, therefore, dispute whether the said tenancy cases pertained to Survey Nos. 89/3, 93/2, 93/3 and 93/4 or any of them. In Survey Records of Survey Nos. 89/3, 93/2, 93/3 and 93/4, the name of the Communidade was never recorded as occupant. According to Pascoal Trinidade and M/s. Raghurai Tamba, the said properties originally belonged to Alexandre Rodrigues/ Maria Conceicao Rodrigues and later on to Maximo Mergulhao and subsequently Mrs. Dionisia Dias e Mergulhao in whose name they were recorded. In the circumstances above, there is serious dispute about the original title of the said properties. It is well settled that relief under Article 226 of the Constitution is not available to decide the disputes of civil nature. There is alternative remedy for the above by way of civil suit.
Admittedly, subsequently, by sale deeds, Shri Pascoal Trinidade and M/s. Raghurai Tamba have purchased the said properties and they are bonafide owners thereof. In fact, it is seen that the said properties have been already developed and third party rights have been created in various plots. The conversion sanads obtained in respect of the said properties have been acted upon long back and are exhausted. Roads, drainages etc., were constructed long back. Approval of the sub-division of plots by the Town planner and final N.O.C. for the said sub-division has been already issued long back. The finally approved sub-divided plots have been sold to various persons, who are already in possession of those plots. Mutations in survey records have been carried out. Constructions have already come up in some of those plots. The owners of the said plots are not made parties to these writ petitions. It is well settled that when other interests have come into being and the persons having these interests are not parties, the extra-ordinary jurisdiction under Article 226 of the Constitution should not be exercised.
The orders of the Mamlatdar pertaining to tenancy are dated 20/12/1971 and 10/12/1971. The judgment and decrees of the Civil Courts are dated 06/08/1986 and 20/11/1998. The first Writ Petition i. e. bearing No. 506/2009 has been filed on 11/08/2009. Other Writ Petitions are all filed after that. There is, therefore, gross inordinate delay and laches which have not been explained at all by the petitioners.
As per the order dated 5/9/2000, passed by this Court in Writ Petitions NO. 291/2000 and 305/2000, the learned Deputy Collector and S. D. O., Panaji conducted inquiry and he arrived at a conclusion that there was no tenancy in respect of survey no. 89/3 of Bambolim Village, on the day on which Goa Land Use (Regulation) Act came into force.
It is seen that as per the order dated 18/2/2009, of this Court in Writ Petition No.102/2009, the learned Deputy Collector and S. D. O., North Goa, had conducted the full fledged inquiry in case No. Ill/CNV/TIS/19/2009, into the contention of the petitioners that the properties bearing survey nos. 89/3, 90/1, 93/2, 93/3, and 93/4 belong to the Communidade of Bambolim and that these properties are tenanted lands and in contravention of the provisions of the Agricultural Tenancy Act, Goa Land use (Regulation), Act and Goa Land (Prohibition on Construction) Act, the constructions are being carried out in these properties. By way of detailed Judgment and Order dated 1st August, 2011, the learned Deputy Collector has concluded that property under survey no. 90/1 of village Bambolim is agricultural tenanted land and hence no conversion is permissible in respect of this land. He has held that the properties bearing Survey Nos. 89/3, 93/2, 93/3 and 93/4 were not tenanted lands. It is pertinent to note that in Special Civil Suit No.222/1994/B filed by the Communidade of Bambolim against Mergulhao since deceased through L.R. Mrs. Dionisia Dias e Mergulhao for a declaration that the property bearing Survey No.89/3 is part of the property named ''OROS'' belonging to the Communidade. Consent terms were filed and a consent decree dated 21/11/1998 was passed under which the Communidade agreed to take 45 plots in Survey Nos. 93/2, 93/3 and 93/4. If the said properties exclusively belonged to the Communidade, then, there was no need for settling the matters by taking only 45 plots from that property. It is difficult to believe that the properties bearing Survey Nos. 89/3, 93/2, 93/3 and 93/4 ever belonged to the Communidade of Bambolim. The tenancy of Raiu Ishwar Gauns is found to be confined to survey no. 90/1. M/s Raghurai Tamba has purchased the land from survey no. 89/3 which was originally belonging to Maximo Mergulhao whereas Pascoal Trinidade has purchased the property under survey nos. 93/2, 93/3 and 93/4. The sale deeds have not been challenged. Admittedly, no development activities have been carried out in the property bearing survey no. 90/1. Be that as it may, questions, if any, are raised about all the above, then those would be really disputed questions and cannot be gone into in writ jurisdiction.
The learned Deputy Collector has extensively dealt with the issue of tenancy and has given finding that the cases no. CAJ/ARC/PRC/10-11/71 and CAJ/ARC/PRC-18/71 have nothing to do with the properties bearing Survey Nos. 89/3, 93/2, 93/3 and 93/4. The learned Deputy Collector has considered the validity of the judgments made in Special Civil Suit No.15/2001/A and in Regular Civil Suit No.6/2007/C. The petitioner namely Marvin Gonsalves was examined as RW 1 and he produced several documents before the learned Deputy Collector, but could not produce any evidence to prove that the properties bearing Survey Nos. 89/3, 93/2, 93/3 and 93/4 at any time belonged to the Communidade. There do not appear to be any error apparent on the face of the record in the proceedings held by the learned Deputy Collector. The said order of the learned Deputy Collector has not been challenged. The order of the Deputy Collector is well reasoned and if anybody is aggrieved, it will have to be challenged by way of suit. In the Writ Petition No. 102/2010, upon perusal of the said Order dated 1st August, 2011, passed by the learned Deputy Collector and S.D.O., Panaji, this Court, by order dated 19/9/2011, observed that no further orders are necessary,
In fact, a perusal of the grounds stated in all the writ petitions and the replies reveal that almost all the questions like ownership of Communidade, tenancy of some of the persons, survey records, orders of competent authorities, decrees of Civil Courts, etc. are disputed. The said orders of tenancy passed by the Mamlatdar and said decrees passed by Civil Courts will have to be set aside by the competent higher authorities and this cannot be done in the present writ petitions. The Writ Jurisdiction, although is wide, however, does not enable the High Court to convert itself into a Court of appeal and examine the correctness of the decisions of the competent authorities.
Shri Rohit B. De Sa, learned Counsel for the petitioners, has relied upon the judgment in the case of "Shri Ganapati Devasthan Saunsthan and another Versus The Collector, North Goa and others" [2000 (4) All M R 846], wherein it has been held that permission to transfer agricultural tenanted land can be granted only when the land is to be used for agricultural purposes and such transfer can only be to categories of persons set out in section 18J of the Goa, Daman and Diu Agricultural Tenancy Act. It has further been held that the Goa Land Use (Regulation) Act, 1991 prohibits conversion of tenanted agricultural lands. He has also relied upon the judgment in the case of Balvant N. Viswamitra and Others Vs. Yadav Sadashiv Mule (dead) through Lrs. and Others, , wherein it has been held that a void decree can be challenged at any stage, even in execution or collateral proceedings. However, in the case (supra), it has been also held that an erroneous or illegal decision which is not void, cannot be objected to in execution or collateral proceedings. He has also relied upon the judgment in the case of A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, , wherein it has been held that the judgment, decree or order obtained by fraud has to be treated as non-est or nullity whether by the Court of first instance or by the final Court and it can be challenged in any Court at any time in appeal, revision, writ or even in collateral proceedings. Lastly, learned Counsel for the petitioners has relied upon the judgment in the case of Pilerne Citizens Forum Vs. The State of Goa and Others, , wherein it has been held that where the Court lacks inherent jurisdiction in passing a decree or making an order, the decree or order passed by such Court, will be without jurisdiction, non-est and void ab-initio. It has been further held that a defect of jurisdiction of the Court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order and such defect has always been treated as basic and fundamental and the decree or order passed by a Court or authority having no jurisdiction is a nullity and validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. The principles laid down in the above citations are not disputed. The above decisions do not help the petitioners. They have not proved that the orders of tenancy passed by the Mamlatdar or the judgments of the Civil Courts which have been challenged, are non-est or ab-initio void. It is not shown that the orders of the learned Deputy Collector, passed, after due inquiry, are erroneous. The petitioners have not made out a case in the present writ petitions for application of the principles laid down by the above Judgments. Hence, the said citations are not applicable to the present petitions. In "Pilerne''s" case (supra) the Court proceeded on the basis of undisputed factual position and the questions of fact as noted by us in this case were not involved therein. Hence, that decision is distinguishable. The Petitioners cannot rely upon the above decision unless they are successful in proving their allegations as set out in the petition by approaching competent forums or courts. The inquiry which they desire cannot be undertaken in our limited jurisdiction. In the result, all the Writ Petitions do not bear any substance and are liable to be dismissed without being admitted. Hence, all the Writ Petitions are dismissed, however, with no order as to costs.