1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION NO.715/2009 IN WRIT PETITION NO. 531 OF 2009 1. Shri Haji Imam Ibrahim Khan Since deceased, through his legal heir, Shri Ibrahim Khan alias Anwar Khan, r/o. House No. 183, Ai-Haaji, Behind Chowgule's Temple, Mangor Hill, Vasco-da-Gama. .. Petitioner Versus 1. Shri Joao Jose Nepomociano Coelho, (Since deceased) a. Mrs. Clara D'costa e Coelho, w/o Mr. Joao Jose Nepomociano Coelho, Coelho Villa, patrong Baina, Vasco-da-Gama, Goa. b. Ms. Celina Furtado, Teacher, St. Joseph High School, Vasco-da-Gama, Goa. c. Ms. Carmen Antao, w/o. Mr. Vasquito Antao, Opp. Byculla Bib Church, Near Moti Masjid, Byculla, Mumbai 400 008. d. Ms. Chritine Peros, Coelho Villa, Patrong Baina, Vasco-da-Gama, Goa e. Mr. Sebastian Coelho, s/o Jose Nepomociano Coelho, Coleho Villa Patrong Baina, Vasco-da-Gama, Goa. 2 2. Bashir A. I. Khan, Behind Maurit Temple, Baina, Vasco-da-Gama. 3. Saunabi alias Sagura Bi, Post Kajubag, Karwar(N.K.), Karnataka 4. Noorbanu Bi, Sunday Market, Karwar(N.K.), Karnataka 5. Rasheed Bi, Bogmalo Road, Dabolim, Vasco da Gama. 6. Mujeera Bi, Hodle Bhat, Taleigao, Panaji, Goa. 7. Auliya Begum, Bank Street, Dharwar (Karnataka) 8. Collector of South Goa, Having his office at Margao, Goa 9. Administrative Tribunal, Goa Panaji, Goa. (deleted vide order dt. 10/09/2009.) .. Respondents. Mr. S. K. Kakodkar, Senior Advocate with Mr. S. D. Padiyar, Advocate for the petitioner. Mr.A. F. Diniz, Advocate for the respondent No.1(d). Mr. S. R. Rivonkar, Government Advocate for the respondent No.8. CORAM :- U. D. SALVI, J. 3 DATE OF RESERVING THE ORDER : 25 th September,2009. DATE OF PRONOUNCING THE ORDER : 09 th October,2009. ORDER : 1. At the stage of admission, the petitioner has preferred this application for amendment of the petition seeking to incorporate in the petition certain facts concerning the cabinet decision on granting approval to the proposal for issuing sanction to the grants of lands in Mormugao Taluka given for temporary construction of barracks in preliberation period vide letter dated 1.09.1983 in terms of proposed amendment annexed to the application as Schedule A. 2. The petitioner is seeking writ of certiorari for setting aside the judgment and order of the Collector, South Goa, Margao dated 19.03.1999 in case No.46/7/1997-REV/B- 427 and judgment and order dated 20.1.2009 passed by the Administrative Tribunal, Panaji, Goa in Land Revenue Appeal No.22/1999 on examining the legality and propriety thereof. According to the petitioner, he is a lessee of the land bearing government plot No.991 at Vasco-da-gama on which barrack 4 No.427 has been constructed at considerable expense ; and the Government of Goa, Daman and Diu has pursuant to the decision in the meeting of the Council of Ministers on 24.08.1983 regularised the temporary grant of land given for the construction of the said barrack on the said land held by the petitioner on payment of annual ground rent since last 60 years i.e. from the pre-liberation period. The impugned order of the Collector of South Goa at Margaon affords a look at the genesis of the controversy. It appears that one Joao Jose Coelho the deceased predecessor of the respondent Nos.1(a) to 1(e) was allotted the said land for the purpose of constructing residential house on emphyteusis (permanent lease) under the agreement dated 22.3.1967. Thereafter, it appears, a notice to show cause against the eviction from the said land came to be issued to one Haji Imam Ibrahim Khan, the predecessor of the petitioner and the respondent Nos. 2 to 7 in possession of the said land by virtue of temporary permission to put up a barrack till the allotment of land on emphyteusis under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1958. It further appears that the said Haji Imam neither vacated the plot nor appeared to show any cause in response to the said notice and consequently an ex-parte order directing the eviction of 5 the said Haji Imam from the said plot of land came to be passed on 21.2.1969 by the Deputy Collector and Estate Officer, South Sub-division, Margao. It appears that this order of eviction was assailed through the chain of legal proceedings right from the District Court to the Apex Court and ultimately, the petition to the Apex Court under Article 133(1) read with Article 137(1)(a)(b) and (c) of the Constitution of India came to be withdrawn by the said Haji Imam on 06.01.1987. 3. Meanwhile, it appears the Collector of South Goa granted disputed plot to the said Haji Imam Ibrahim Khan vide Sanad dated 17.03.1986. This Sanad was set aside by the High Court vide order dated 22.09.1998 in W.P. No.185/1990 on the premise that grant of Sanad to the said Haji Imam was done without any notice to the said Joao Jose Coelho holding the lease dated 22.03.1967. This Court remanded the matter to the Collector of South Goa to hear the contending parties and to pass an appropriate order regarding the grant of said plot. 4. From this, one can clearly see that the controversy in the present lis is over the grant/s concerning 6 the disputed land between the petitioner and the respondent No.1 through his legal heirs. The contending respondent Nos. 1(a),(d) and (e) have opposed the proposed amendment on the following grounds: (i) belated move for seeking amendment. (ii) Non-application of the decision of the Government as reflected in the letter dated 1.9.1983 to the case at hand. (iii) Failure to use the letter dated 1.9.1983 in defence in W.P. No.185/1990 and consequent non- availability of such ground in the present writ petition by virtue provisions of explanation IV of Section 11 of C.P.C.,1973. On the basis of denial, the contending respondents further challenged the maintainability of the present petition as the one arising out of disputed questions of fact. According to the contending respondents, the proposed amendments are not necessary to determine the real questions in controversy. 5. It is the case of the applicant/ petitioner that after filing of the petition, he could lay his hands on the letter dated 1.9.1983 concerning the vital decision of the Council of 7 Ministers only upon taking recourse to the remedies under the Right to Information Act. Complete ignorance regarding the said letter prior to filing of the petition has been pleaded as an explanation to the belated move to amend the petition at this stage. As regards the other exceptions taken to the proposed amendment it only needs to be mentioned that such exceptions are concerning the merits of the material sought to be incorporated in the petition through the proposed amendment, and such merits need not be evaluated at this stage, but at the stage of finally assessing the merits of the entire petition. Nonetheless the letter dated 1.9.1983 has a potential to shed more light on the controversy in the present petition thereby facilitating the determination of real questions in controversy. Amendments as proposed are, therefore, justified. 6. Permission is, therefore, granted to amend the petition as proposed. Amendments to be carried out within a week. Copies of the amended petition to be served on the respondents. This application is disposed of accordingly. U. D. SALVI, J. SMA 8