1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.53 OF 2011 Communidade of Calangute represented by its Attorney, Mr. Antonio Francisco A. De Souza …. Petitioner V/s. The State of Goa Through Chief Secretary & 21 Ors. …. Respondents Mr. Rohit Bras De Sa, Advocate for the Petitioner. Mr. Vivek Rodrigues, Additional Government Advocate, Respondents Nos.1 to 6 & 8 to 10. Mr. H.D. Naik, Advocate for Respondent No.7. CORAM : S.B. DESHMUKH & F.M. REIS, JJ. DATE : 2nd FEBRUARY, 2011 ORDER : We have heard learned Counsel for the petitioner. 2. This petition was filed by the petitioner on 29/10/2010. Objections raised by the Registry were cleared by the petitioner on 26/11/2010. On grant of circulation today, petition is listed before us. This petition is filed by the Communidade of Calangute, who is represented by its attorney Mr. Antonio Francisco. Respondent No.1 is the State of Goa. Respondents nos. 2 to 6 are various authorities of the respondent no.1, State of Goa. Respondent No.7 2 is Village Panchayat of Calangute through its Secretary. Respondents nos.8,9 & 10 are the Collector, North Goa, Deputy Collector and SDO, and the Mamlatdar, Mapusa, Bardez. From serial nos.11 to 22 are private persons in the array of respondents. Respondent no.21 seems to be the company incorporated under the Companies Act, 1956. Respondent no.22, the last respondent seems to be deceased person. 3. Counsel appearing for the petitioner states that Civil Suit No.1/1976 was filed before the learned Civil Judge, Junior Division, Mapusa wherein casual admission of the attorney of Communidade of Calangute, the petitioner was recorded and a declaration was made that respondent no.11, Mr. Surya Mahadev Vengurlekar in this Writ Petition was a tenant. This declaration granted was made by the Civil Court, which does not have power and jurisdiction under the provisions of the Goa, Daman & Diu Agricultural Tenancy Act, 1964. 4. Respondent No.11 filed purchase proceedings bearing No.TNC/SR/2/96 in the year 1996 against the petitioner. The said proceedings were filed before the Mamlatdar under Section 18C of the Goa, Daman & Diu Agricultural Tenancy Act, 1964 (herein 3 after referred to as “the said Act”). The said property was purchased by respondent no.11 under Section 18C of the said Act being tenant of the property and in accordance with provisions of the said Act. This proceeding was on the basis of the declaration made by the tenant in favour of respondent no.11 made by the Civil Court in Civil Suit No.1/1976. It is also contended on behalf of the petitioner that purchase proceedings bearing No.TNC/SR/2/1996, was filed by respondent no.11 before the Mamlatdar seeking permission of the said authority to sell agricultural tenancy property under Section 18K of the said Act. Grievance is that Mamlatdar concerned granted blanket permission in favour of respondent no.11. Copy of the said proceedings is placed on record (page 85 of the compilation). It appears from this copy of the proceedings that it was an application dated 1/03/1996 filed by respondent no.11, Mr. Surya Mahadev Vengurlekar, who was applicant therein. Prayer in the application was seeking permission to transfer the land under Section 18K of the said Act. In this order dated 12/04/1996, facts have been recorded by the authority concerned i.e. Mamlatdar of Bardez, Mapusa. In this order, the Mamlatdar has referred to Rule 6 of Goa, Daman and Diu Agricultural Tenancy (Special Rights and Privileges of Tenants) Rules, 1977 (if necessary, herein after referred to as “Rules, 1977” 4 for short). The grounds on which such permission of transfer of land was sought by respondent no.11, Mr. Surya Mahadev Vengurlekar, have been mentioned in this order at paras (a) to (g). Statement of the applicant is recorded that applicant i.e. respondent no.11, Mr. Surya Mahadev Vengurlekar is not enjoying good health and was also mentally disturbed due to continuous deaths in his family and was unable to cultivate land personally as well as none of his family members were able to cultivate the said lands. The mamlatdar has accepted one of the grounds viz. the ground at (g) of respondent no.11, Mr. Surya Mahadev Vengurlekar, who was applicant therein which reads as follows: (g) that the land is being partitioned among the heirs/survivors of the deceased landowner on the ground that he is personally rendered unable to cultivate the land personally and none of his family members are willing to cultivate personally. 5. We make it clear that there is an ambiguity in this page 87 because grounds have been mentioned in para (a) to (g). On this, Counsel appearing for the petitioner and learned Additional Government Advocate Mr. Rodrigues have clarified the position. To avoid ambiguity, we have recorded that clause itself. The appellant has accepted this ground raised by respondent no.11 Mr. Surya Mahadev Vengurlekar and, accordingly, passed order on 5 12/04/1996. This has been reproduced in the operative part of the order. “The application of Shri Surya Vengurlekar for transfer of land surveyed under no.29/2 of Calangute Village purchased by him under Section 18-C is granted. Informed the party.” 6. Counsel appearing for the petitioner took us through various documents placed on record and annexed with the Writ Petition. With his assistance, we have seen documents. We may make a brief reference to some of the documents since we are on admission/ hearing of the Writ Petition. Copy of Index of Lands at page 89 is on record. Land with respect to Survey No.29, sub-division no.2 and the name of the land is mentioned as Palsan and Vazze. The area mentioned in column no.5 of this document is 24.20.00. Land appears to be under use for cashew plantation at the relevant time. In this document, important is the column no.10, which records the name of the occupant as Communidade of Calangute. We have no concern with Khata Number i.e. column no.11. We have noticed from column no.12 i.e. Name of Tenant is Mr. Surya Mahadev Vengurlekar, who is respondent no.11 in this petition. From the records, column no.17 we have noticed that Checking Officer has recorded “As per D.C. No.393”. While parting with this document it is to be kept in mind that occupant of the land was the present 6 petitioner i.e. Communidade of Calangute and respondent no.11 was shown as tenant of the said land. Further, from the document we have noticed that the compilation is at page 90. We have noticed revenue record i.e. in form no.I and XIV. This revenue records describes the area of the land as 24.20.00, survey number of the land as 29/2 and the name of the occupant mentioned as Surya M. Vengurlekar, i.e. respondent no.11. It appears that this name was recorded under Mutation No.532. Agreement for sale, is at page 91 of the compilation. The date of Agreement of Sale is 15/04/1996. Seller is the respondent no.11 Mr. Surya M. Vengurlekar and name of proposed purchaser in whose favour this Agreement of Sale is Mr. Dattaraj V. Salgaonkar, S/o. Vassudev Salgaonkar. We have considered area under transaction Survey No.29/2. This transaction, in a body of the document shows for the consideration of Rs.1,48,00,000/- in its totality. We are not producing in this order the break up and payment mentioned in the document. Suffice to notice that transaction is of Rs.1,48,00,000/-. We have also seen another agreement dated 1/08/1996 amongst Shri Dattaram Surya Vengurlekar, S/o. respondent no.11 Shri Surya Vengurlekar and his wife Smt. Vanita Dattaram Vengurlekar, D/o. Bhiku Gopal Bogde, Mr. Avdhut Surya Vengurlekar, S/o. Surya Mahadev Vengurlekar and his wife Smt. Laximi Avdhut 7 Vengurlekar. We have seen all the names of the vendors who are party to this document and purchaser i.e. Goa Agrotech Pvt. Ltd. i.e. respondent no.21 in this Writ Petition. This agreement pertains to 2,42,000 square metres area comprised in holding survey no.29/2 of Calangute i.e. the property which is owned by the petitioner Communidade and was being occupied as tenant by respondent no.11 Mr. Surya Mahadev Vengurlekar. Earlier document which is referred to at page 91 is Agreement for Sale dated 15/04/1996, amongst respondent no.11 Surya Mahadev Vengurlekar and private individual Mr. Dattaraj V. Salgaonkar. We have also recorded consideration for present transaction i.e. Agreement of Sale dated 1/08/1996 which has the amount of Rs.1,48,00,000/-. We have noticed the payment schedule for payments and dates amongst the parties, but we do not find it necessary to record in this order. 7. With the assistance of the Counsel present before the Court we have noticed that these documents are Agreement to Sale. Counsel appearing for the petitioner states that as of today there is no Sale Deed. Counsel for the petitioner, on instructions, states whatever instructions they have received on the filing of the Writ Petition, have been embodied in this Writ Petition, that is also to the knowledge of the petitioner. Suffice to notice that as of today 8 there is no grievance of transfer of property by Sale Deed by respondent no.11 to respondents nos.20 and 21. 8. Learned Counsel for the petitioner also points out a copy of the order passed by Joint Mamlatdar Bardez, page 81A of the compilation. It was registered as case No.TNC/PUR/Cal/1/92. Respondent no.11 Surya Mahadev Vengurlekar is shown as applicant and respondent is Communidade of Calangute. After recording description of the property operative part of this order directs the applicant to deposit with Mamlatdar Bardez the first installment of Rs.4,880/- within six months from passing of this order and subsequent installments within a period of one year from the date on which the previous installment was due. This order appears to have been made by Mamlatdar Bardez on 15/2/1993. 9. In substance grievance is that there is a statutory fraud committed by the person concerned on the property to which rights have been acquired in favour of respondent no.11, Surya Mahadev Vengurlekar. Counsel for the petitioner urged that Civil Court does not have power of jurisdiction to grant declaration that particular person is a tenant in view of the provision of the Agricultural Tenancy Act. Second contention is that to grant a permission for 9 transfer of the land is also subject matter of the jurisdiction of the competent authority under the Act. According to the learned Counsel for the petitioner, even though petition is filed on 29/10/2010, there are no delay and latches on the part of the petitioner. Petitioner on perception of the fact of fraud and without delay rushed to this Court and has filed this petition. In case the petitioner is relegated to some other forum there would be multiple litigations. Learned Counsel also submits that date of knowledge to the petitioner is material and such petition cannot be turned out only on the ground of latches. While addressing the Court, he also made reference to Section 17 of the Limitation Act. Our attention has been invited to the judgment of the Supreme Court in the matter of Pallav Sheth V/s. Custodian & Ors. (2001) 7 SCC 549. It is a larger Bench judgment (three Hon'ble Judges of the Supreme Court). In this matter, Section 20 of the Contempt of Courts Act, 1971 providing period of limitation for any contempt proceedings was under consideration of the larger Bench of the Hon'ble Supreme Court. Earlier judgment of the Hon'ble Supreme Court on the point of limitation for the initiation of contempt proceedings have been considered. Contempt, particularly, is a matter of Article 215 of the Constitution of India. Contempt of Courts Act, 1971 is a central legislation. Inherent powers of the higher Courts i.e. 10 Hon'ble Supreme Court and High Court flows from Article 215. Thus, considering the provisions of Contempt of Courts Act, 1971 and Article 215 of the constitution, the larger Bench has considered and interpreted Section 17 of the Limitation Act. We have seen the facts which were brought before the Hon'ble Supreme Court in the matter of Pallav Sheth (supra). Observations made by the Hon'ble Supreme Court in para 41 are relevant for our purpose. It is stated that: “One of the principles underlying the law of limitation is that a litigant must act diligently and not sleep over its rights. In this background such an interpretation should be placed on Section 20 of the Act which does not lead to an anomalous result causing hardship to the party who may have acted with utmost diligence and because of the inactin on the part of the court, a contemner cannot be made to suffer. Section 20 of the Contempt of Courts Act, 1971, therefore, has to be construed in a manner which would avoid such an anomaly and hardship both as regards the litigants as also by placing a pointless fetter on the part of the court to punish for its contempt. An interpretation of Section 20, like the one canvassed by the appellant, which would render the constitutional power of the courts nugatory in taking action for contempt even in cases of gross contempt, successfully hidden for a period of one year by practising fraud by the contemner would render Section 20 as liable to be regarded as being in conflict with Article 129 and/or Article 215. Such a rigid interpretation must therefore be avoided.” 10. The Hon'ble Supreme Court in para 42 has referred to another judgment in the matter of Om Prakash Jaiswal's case 11 which appears to have been referred to in the earlier part of the judgment. Para 47 according to us in relation to Section 17 of the Limitation Act is relevant from this judgment. It records that: “Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent [Section 17(1)(b)] or where any document necessary to establish the right of the plaintiff or the applicant has been fraudulently concealed from him. The period of limitation shall not begin to run until the plaintiff or the applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of concealed document, until the plaintiff o the applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity viz. that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been willfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud.” 11. We have considered the prayers made in the Writ Petition. We have given great time for hearing the submissions made by the learned Counsel appearing for the petitioner. In our considered opinion petition involves disputed questions of facts requiring investigation and/or finding after adduction of oral and documentary evidence. In the facts and circumstances of the present case, in our opinion, such exercise under Article 226 is not 12 permissible. We are inclined to dismiss the Writ Petition with liberty in favour of the petitioner to approach to alternate remedy under the law. We make it clear that we have not recorded our findings on merits in this Writ Petition. If petitioner seeks alternate remedy of Civil Court or any other authority, the authority concerned shall consider the material brought on record and may pass appropriate order. 12. Writ Petition stands dismissed with liberty in favour of the petitioner to approach to alternate remedy, if advised. S.B. DESHMUKH, J. F.M. REIS, J. NH/-