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Judgment
A.P. Lavande, J.—Mr. Costa Frias, learned Counsel for the Petitioners seeks leave to delete the words ''Article 226'' from the cause title. Leave granted. Amendment to be carried out forthwith.
Heard Mr. Costa Frias, learned Counsel for the Petitioners and Mr. Agha, learned Counsel for Respondent No. 1.
By this petition under Article 227 of the Constitution of India, the Petitioners challenge the judgment and order dated 29th July, 2010 passed by the Administrative Tribunal dismissing the revision application preferred by the Petitioners against the order dated 31st October, 2001 passed by the Deputy Collector, South Sub-Division, Quepem by which the Deputy Collector allowed the revision application against the order dated 19th July, 1999 passed by the Joint Mamlatdar-II, Quepem in Case No. JM-II/TNC/DECL/34/1998.
One Milagres Diogo Pereira of whom the Petitioners are the legal representatives filed an application seeking declaration of tenancy in respect of an area of 21,400 square metres against the Communidade of Cacora. The case was taken up and disposed of by Shri G. A. Kudalkar, the then Mamlatdar of Quepem. The record discloses that while passing the final order, the Mamlatdar introduced name of Smt. Rekha Borkar as applicant No. 2 and declared both of them as tenants of the suit property bearing Survey No. 77/3 of village Cacora and further directed the Talathi to include the name of Milagres Pereira and Rekha Borkar in tenant''s column. It has not been seriously disputed by the learned Counsel for the parties that Rekha Borkar is the maiden name of wife of the Mamlatdar - Shri G. A. Kudalkar.
Against the said order, Communidade of Cacora preferred revision application to the Deputy Collector, who by order dated 31st October, 2001 allowed the revision application holding that there was collusion between the applicant and the Communidade and moreover, the name of applicant No. 2 was introduced in the impugned order. The Deputy Collector also gave findings on merit against the Petitioners. Before the Deputy Collector, an objection was taken on behalf of the Petitioners that the revision was not maintainable.
Against the order passed by the Deputy Collector, the Petitioners herein preferred revision application before the Administrative Tribunal which has been also dismissed by order dated 29th July, 2010 upholding the findings given by the Deputy Collector.
Mr. Costa Frias, learned Counsel for the Petitioners submitted that revision filed before the Deputy Collector by Respondent No. 1 was not maintainable since the impugned order passed by the Mamlatdar was appealable. He further submitted that even if the order passed by the Mamlatdar was collusive order, at the most, the Deputy Collector ought to have remanded the matter for fresh enquiry. He further submitted that the findings recorded by the Deputy Collector and the Administrative Tribunal on merits are not borne out from the evidence on record. He, therefore, submitted that the orders passed by the Deputy Collector and the Administrative Tribunal be quashed and set aside.
Mr. Agha, learned Counsel for Respondent No. 1 supported the impugned orders passed by the Deputy Collector and the Administrative Tribunal and submitted that the record discloses that the applicant has been in collusion with the then attorney of the Communidade against whom action has been taken by the Administrator of Communidade. He further submitted that having regard to the conduct of the Petitioners, more particularly, the fact that the original applicant did not challenge the order passed by the Mamlatdar in which not only the original applicant Milagres Pereira but also Rekha Borkar was declared tenant, the Petitioners are not entitled to any discretionary relief from this Court. He further submitted that the record prima facie discloses collusion between the Petitioners and the Mamlatdar, who passed the impugned order in which some benefit has been given to the wife of Mamlatdar by joining her as applicant No. 2 at the time of passing of the final order.
Having heard the learned Counsel for the Petitioners and Respondent No. 1, I am of the considered opinion that the conduct of the Petitioners is such that no interference is warranted with the impugned orders by this Court in exercise of super visionary jurisdiction of this Court which has to be exercised very sparingly and in exceptional circumstances. No doubt, the learned Counsel for the Petitioners is right in contending that revision before the deputy Collector was not maintainable and the appropriate remedy was by way of appeal. However, the fact remains that after the Mamlatdar passed the order in which he introduced the maiden name of his wife as applicant No. 2, the original applicant did not challenge the said order, which prima facie shows that the original applicant was in collusion with the Mamlatdar. It is also pertinent to note that although the original applicant had sought declaration of tenancy in respect of an area of 21,400 square metres, the Mamlatdar while granting declaration granted declaration in respect of the entire area bearing Survey No. 77/3 which as per the Survey record admeasures 38,700 square metres. The conduct of the original applicant is such that the Petitioners do not deserve any indulgence from this Court in exercise of jurisdiction under Article 227 of the Constitution of India. It is also well settled that even if an order is strictly not in accordance with law, this Court in exercise of jurisdiction under Article 227 of the Constitution of India may not interfere provided cause of justice is advanced. In so far as the submission of Mr. Costa Frias that findings recorded by the Deputy Collector and the Administrative Tribunal on merits are not borne out from the record is concerned, I find no merit in this submission. This being the position, I am not inclined to interfere with the impugned judgments and orders passed by the Deputy Collector and Administrative Tribunal. I do not find also any merit in the submission of Mr. Costa Frias that both the authorities below ought to have remanded the matter to the Mamlatdar for fresh enquiry after holding that there was collusion between the original applicant and the Mamlatdar. Both the authorities have also held against the Petitioners on merits and I do not find any ground to hold that the said findings are contrary to the evidence on record. This being the position, I am not inclined to entertain the petition and hence, the petition is dismissed.
Perusal of the record discloses a very sorry state of affairs. Shri G. A. Kudalkar, who was functioning Mamlatdar in the year 1999 has introduced the maiden name of his wife Rekha Borkar in the final order declaring her also to be tenant along with the original applicant in respect of the property bearing Survey No. 77/3. By order dated 21st January, 2011, Mr. Bandodkar, learned Additional Government Advocate was asked to take instructions regarding the action, if any, taken by the Government in relation to the conduct of the Mamlatdar and was directed to place the entire record before the Court for perusal of this Court in a sealed cover. The same was complied with. Perusal of the record discloses that in the enquiry conducted, Shri Kudalkar was exonerated by the enquiry officer which was also upheld by the disciplinary authority. Since the record discloses that the Mamlatdar functioning as a quasi-judicial authority has committed patent illegality by introducing the maiden name of his wife in the order declaring her along with the original applicant as tenant of the property bearing Survey No. 77/3, the same prima facie, discloses tampering of the records of the quasi-judicial proceedings. Mere fact that the Government has exonerated the Mamlatdar in departmental enquiry, would not come in the way of this Court from taking appropriate action in the matter. Since the action of the Mamlatdar in introducing the maiden name of his wife is during the course of discharging quasi-judicial function, I deem it appropriate to give notice to him before passing any further order. Therefore, notice be issued to Shri G. A. Kudalkar, who is presently functioning as Aval Karkun in the Collectorate office, South Goa to show cause as to why appropriate action should not be taken against him in the matter for tampering with the records while discharging quasi-judicial function under the Goa, Daman and Diu Agricultural Tenancy Act, 1964. Notice is made returnable on 30th March, 2011. Notice be served through Collector, South Goa. Notice is also given to State of Goa which is waived by Additional Government Advocate Shri S. Bandodkar. Records and proceedings of all the three authorities be called immediately.
Having regard to the issue involved, I deem it appropriate to appoint Amicus Curiae in the matter. Accordingly, Shri A. N. S. Nadkarni, learned Senior Counsel is appointed Amicus Curiae in the matter. Registry to furnish a copy of the petition along with all the annexures and the orders passed by this Court to Mr. Nadkarni within a period of two weeks.