1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.714 OF 2010 Smt. Ashwini Kavlekar, widow of late Madhukant alias Ashakant Kavlekar, r/o H.No. 75, Sao Pedro (Ribandar), Panvelim, Tiswadi, Goa. .. Petitioner. Versus 1. The State of Goa represented by the Mamlatdar of Tiswadi Taluka, Panaji, Goa. 2. Mrs. Mira Shamba Kavlekar, widow of late Shamba Kavlekar, major of age, r/o Sao Pedro (Ribandar) Panvelim, Tiswadi, Goa. .. Respondents Mr. V. A. Lawande, Advocate for the petitioner. Mr. V. K. Daniel, Additional Government Advocate for respondent no.1. Coram :- A. P. Lavande, J. Reserved on :- 13 th December, 2010 Pronounced on :- 7 th January , 2011 ORDER : By this petition, the petitioner challenges the order dated 1st October, 2010 passed by Administrative Tribunal, Goa in MISC/APPLN/42-09/LEAVE/LRA, MISC/ APPLN /43-09/STAY/LRA and unregistered APPEAL/LRA/09 2 by which the Tribunal has refused to grant leave to appeal against the order dated 19th January, 2009 passed by the Deputy Collector and consequently dismissed the unregistered appeal. 2. It is the case of the petitioner that she and her mother-in-law Mira Kavlekar are the tenants of the property 'FONTAINHAS' surveyed under survey no.11/7 and 11/5 of village Panelim, Tiswadi taluka. It is her case that her father- in-law was tenant in respect of the said property and after his death, respondent no.2 and petitioner are in enjoyment of the property as tenants. According to the petitioner, respondent no.2- Mira Kavlekar, who is her mother-in-law is not in talking terms with her and presently respondent no.2 is not staying in the house situated in the said property. 3. The petitioner challenged the judgment and order dated 19th January, 2009 by which the Deputy Collector directed respondent no.2 to demolish the huts existing in the property bearing Survey no.11/5 and restore the land to its original position within 3 days, failing which the Mamlatdar was directed to demolish the same and recover the costs incurred on the demolition from respondent no.2. The said order was passed pursuant to check list prepared by 3 Mamlatdar of Tiswadi requesting the Deputy Collector to initiate action under Section 33 of the Goa, Daman and Diu Land Revenue Code, 1968 ('The Code' for short). According to Mamlatdar of Tiswadi, respondent no.2 – Mira Kavlekar had erected about 20 Kachcha temporary huts covering the area of 376 square meters during two years in the property surveyed under Survey no.11/5 thereby converting agricultural land to non-agricultural purpose without obtaining conversion sanad. The Deputy Collector gave opportunity of being heard to the respondent no.2– Mira Shamba Kavlekar, but she did not avail of the same. The Deputy Collector held that the property was classified as rice land and consequently, in terms of Section 33 of the Code, the Deputy Collector directed to demolish the structures holding that regularization at that stage was out of question. The petitioner challenged this order before the Administrative Tribunal by filing appeal and filed the separate application seeking leave to appeal against the judgment passed by the Deputy Collector since she was not party to the proceedings before the Deputy Collector. 4. Before the Tribunal, it was the case of the petitioner that she had filed an application under Section 8(A) of the Agricultural Tenancy Act in which initially status-quo 4 order was granted, which was vacated, but the Mamlatdar had directed the landlord not to interfere with the possession of the applicant in respect of the residential house and four huts therein. It was further the case of the petitioner that respondent no.2 herein was in collusion with the landlord and was having strained relations with her and, therefore, no notice was given to the applicant under Section 33 of the Code. It was the case of respondent no.1 before the Tribunal that the land on which the huts were constructed was agricultural tenanted land and as such, conversion is prohibited under the Goa Land Use Act. It was further case of respondent no.1 that in the survey record, the name of Shamba Kavlekar was recorded as a tenant and, therefore, after his demise, notice was rightly issued to his widow and since the petitioner had knowledge about the said proceedings she ought to have intervened before the Deputy Collector. The Tribunal held that the property in which the construction was undertaken was agricultural tenanted land, in which paddy field cultivation was undertaken and as such, the same could not have been converted to any other use in view of the Goa Land Use Act. The Tribunal further held that even if it was assumed that the petitioner was tenant in respect of the said property, she was not entitled to undertake any construction. 5 5. Mr. Lawande, learned Counsel appearing for the petitioner submitted that the approach of the learned Tribunal in refusing to grant leave is patently unsustainable in law. He further submitted that the Tribunal has failed to appreciate that there were only huts constructed in the said property and the petitioner had established prima facie right in respect of the said huts and, therefore, leave ought to have been granted by the Tribunal. He further submitted that the Deputy Collector and the Tribunal have failed to appreciate that regularization of the huts constructed in the said property was possible in terms of the provisions of the Code and, therefore, the Tribunal ought to have granted leave to the petitioner to appeal against the judgment passed by the Deputy Collector. Mr. Lawande further reiterated the submissions made before the Tribunal and submitted that serious prejudice would be caused to the petitioner in the event the huts, which are in possession of the petitioner, are ordered to be demolished in terms of the judgment passed by the Deputy Collector, more particularly having regard to the fact that the petitioner was not heard by the Deputy Collector before passing the judgment. Mr. Lawande further submitted that the petitioner has shown prima facie right in respect of the huts, which are ordered to be demolished and, 6 therefore, leave to file appeal against the judgment passed by the Deputy Collector ought to have been granted by the Tribunal. In support of his submissions, learned Counsel relied upon the judgment of Kerala High Court in the case of N. Ramchandran Potti Vs. Kumari Thankam K. K. and others; 2004(3) KLT 183. 6. Per contra, Mr. Daniel, learned Additional Government Advocate for respondent no.1 has supported the impugned order and submitted that no fault can be found with the impugned judgment passed by the Administrative Tribunal dismissing the application for leave to appeal filed by the petitioner. 7. Having considered the rival submissions and having perused the record, I am of the considered opinion that no case has been made out for interference with the impugned judgment passed by the Tribunal . 8. In the case of N. Ramchandran Potti (supra) relied upon by Mr. Lawande, learned Single Judge of Kerala High Court has held that if a person, who is not a party to the order wants to challenge the order, he can maintain the appeal with the leave of the appellate Court, if he is able to 7 prima facie show that he is either bound by the order or is aggrieved by it or is prejudicially affected by it and in such a case, leave has to be granted. 9. In the present case, notice was given to respondent no.2, who is wife of late Shamba Kavlekar – father-in-law of the petitioner. In the proceedings before the Deputy Collector, respondent no.2 chose not to appear and as such, the Deputy Collector passed order dated 19th January, 2009 directing demolition of the huts existing in the property bearing survey no.11/5. 10. As stated above, the Tribunal has held that even if the case of the petitioner that she is a tenant in respect of the property is accepted, the construction of huts in the property, which is admittedly agricultural tenanted property is patently illegal and the same cannot be regularized in view of Goa Land Use Act. In my opinion, this finding cannot be said to be perverse or contrary to law. Even if the case of the petitioner that she is a tenant of the said property in which huts are constructed is accepted still the property being tenanted agricultural property conversion of the same to non- agricultural purpose is not possible in terms of the Goa Land Use Act. Consequently, the question of regularizing of the 8 construction undertaken in the said land does not arise. Therefore, in my considered opinion, the Administrative Tribunal cannot be faulted with in refusing leave to appeal against the judgment passed by the Deputy Collector in as much as even if the case of the petitioner is accepted still she is not entitled to seek regularization of the construction undertaken in the agricultural tenanted property. Therefore, in my considered opinion, this is not a fit case in which this Court should exercise extraordinary jurisdiction under Article 226 and/ or supervisory jurisdiction under Article 227 of the Constitution of India. 11. In my opinion, no case has been made out for interference with the impugned judgment and order. Hence, the petition stands dismissed with no order as to costs. A. P. LAVANDE, J. SMA