Shri Savio Clovis Da Cosa vs Government of Goa and Others

N.A. Britto, J.—Heard learned Counsel on behalf of both parties.

Admit. By consent heard forthwith.

Challenge in this appeal is to the judgment/decree dated 26/12/2007 of the learned District Judge, Panaji by which the Civil Suit filed by the appellant/plaintiff has been dismissed.

It appears that the said plaintiff is the owner of the property bearing Survey No. 1/16 situated at Assolna, wherein he had constructed six shops which were the subject matter of the dispute between the said plaintiff and respondents No. 5 to 9 herein. At the behest of the said respondents, a legal notice dated 28/11/1997 was addressed to the Deputy Director of Panchayats, as a result of which proceedings were initiated before him. The said dispute also became the subject matter of the Writ Petition filed before this Court being Writ Petition No. 411/1998 in which a direction was issued to the Deputy Director of the Village Panchayat to dispose of the proceedings by the end of March, 1999. Consequently, the proceedings were dropped on 30/03/1999. An appeal was preferred before the Director of Panchayats, being Panchayat Appeal No. 60/1999. On 26/02/2001 an ex-parte order came to be made against the plaintiff and a final order of demolition came to be passed on 17/09/2001. By this order the Director of Panchayats set aside order of the Deputy Director and ordered the demolition of the said shops (structure admeasuring 33x3 mt.).

The plaintiff filed a suit on 1/12/2001 with the allegation that the plaintiff was not served in the said proceedings before the Director of Panchayats and, as such, the order passed against the plaintiff in Panchayat Appeal No. 60/99 is null and void and, therefore, could not be acted upon. In support of his claim, the plaintiff examined himself and it appears that on behalf of the said respondents certified copy of the order sheet was filed to disprove the claim of the plaintiff and to show that the plaintiff was duly served in the said proceedings.

The learned trial Court after referring to the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, and the Central Bank of India v. Vrajlal Kapurchand Gandhi and Anr. AIR 2003 SCW 3485 came to the conclusion that the authenticity of the records of the Court could not be disputed and should be accepted as the conclusive proof of the facts stated therein. The learned trial Court also noted that the plaintiff had not filed any application before the Director of Panchayats asking for setting aside of the ex-parte order passed against him. The learned trial Court further observed that considering the facts that the record was made by a quasi-judicial authority and considering the fact that no application was filed for setting aside the ex-parte order, the plaintiff''s contention that he was not served in the proceedings and that he had no knowledge of the order passed against him, was difficult to be accepted.

Learned Counsel on behalf of the plaintiff has referred to the provisions of Rule 6, Order IX, CPC and submitted that the plaintiff could have approached either the Director of Panchayats to get the said ex-parte order set aside, as well as, he could have filed a suit for a declaration to the effect that the said order was a nullity, as it was passed without any notice to him. The learned Counsel further submits that at no stage the AD cards were available before the said Director of Panchayats to conclude that the plaintiff was duly served with notice sent to the plaintiff and, as such, it could not be said that the plaintiff was at all served in the said proceedings before the Director of Panchayats. Learned Counsel further refers to Section 235 of the Goa Panchayat Raj Act, 1994 which provides for the method of serving of notice. In short, the said Section provides that any notice be served by giving or tendering the said notice to the person to be served and in case the said person is not found, by leaving such notice at his last known place of residence or business, or by giving or tendering the same to some adult member or servant of his family; or if such person is not residing in the village or town and his address elsewhere is known to the officer directing the issue of such notice or document, by sending the same to him by registered post; or if none of the aforesaid means are available, by affixing such notice or document on some conspicuous part of the house, if any, in which the person is known to have last resided or carried on business or personally worked for gain.

On the other hand, Shri Lotlikar, the learned Senior Counsel on behalf of the said respondents has submitted that it is not the case of the plaintiff in his plaint that the Director of Panchayats had acted malafidely and, on the contrary, the learned Senior Counsel submits that there is ample evidence to show that the said Director of Panchayats did act bonafidely. In support of his submission, learned Senior Counsel has referred to the proceedings sheet in the said Panchayat Appeal. The learned Senior Counsel has further submitted that the burden was entirely on the plaintiff to show that he was not at all served with the notice of the proceedings before the Director of Panchayats.

The proceedings sheet (roznama) before the Director of Panchayats in Appeal No. 60/1999 shows that on 30/08/1999, the plaintiff who was respondent No. 2 in the said proceedings along with respondents No. 1 and 4 were ordered to proceed ex-parte. The said proceedings also show that on 31/10/2000, the Director of Panchayats had ordered the proceedings to be fixed on 12/12/2000 and the advocate of the appellant and the advocate of the respondents were required to take steps to serve the plaintiff after verifying the records as the AD card was not available on file. On 26/02/2001, the Director of Panchayats noted that the plaintiff along with respondent No. 1 in that case was absent and further noted that the service of summons of respondent No. 2 i.e. the plaintiff herein was submitted and therefore the Director of Panchayats directed to proceed ex-parte against respondents No. 1 & 2 (plaintiff) and fixed the matter for written submissions on 28/02/2001. The said proceedings on 26/02/2001 show that the Director of Panchayats had himself verified that the respondent No. 2 i.e. the plaintiff herein was duly served.

The relevant entry reads thus:

Adv. for the appellants & Resp. 3 to 7 present. Resp. No. 1 & 2 absent. The service of summons of Resp. No. 2 is submitted. Matter to proceed exparte against Resp. 1 & 2. Next date for w/submissions of Resp. No. 3 to 7.

That the said report was not available subsequently is a different matter. The roznama dated 26/02/2001 is a record made by a public servant in course of quasi-judicial proceedings. It may not be placed on a very high pedestal as in the cases decided by the Apex Court and referred to herein above. Nevertheless, the said record having been made by a public servant in discharge of his duties in quasi-judicial proceeding carried a presumption of its truthfulness or correctness. Such presumption could not be displaced only by a bare self serving assertion of the plaintiff that he had not received the notice. Something more was required. Whether sent by registered A.D. or otherwise, there was no reason why the Director of Panchayats should have made a wrong entry. The very fact that the plaintiff chose not to approach the Deputy Director of Panchayats to set aside the said ex-parte order, but chose to file a suit instead, is a strong indication that the plaintiff only wanted to gain time since it is common knowledge that suits take a longer time to be decided.

The conclusion arrived at by the learned trial Court that the plaintiff was duly served, therefore, could therefore be faulted.

I find there is no merit in this appeal and, consequently, the same is hereby dismissed with no order as to costs.