1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.294 OF 2008 WITH SUO MOTU WRIT PETITION NO.1 OF 2008 WRIT PETITION NO.294 OF 2008. 1. Pilerne Citizens Forum, a Society registered under the provisions of the Societies Registration Act, represented herein by its Secretary Shri Suvarnesingh Rane having office at C/o Shri Rupesh Naik, Laxmi Prasad, Next to Chandrageet Hotel, Opp. Chodankar Nursing Home, Porvorim, Goa. .. Petitioner. Versus 1. The State of Goa through its Chief Secretary, having office at Secretariat, Porvorim, Goa. 2. The Administrator of Communidades, North Goa, Mapusa, Bardez, Goa. 3. The Registrar of Communidade of Pilerne, having office at C/o Communidade of Pilerne, Pilerne, Bardez, Goa. 4. The Communidade of Pilerne through its Attorney Shri Cosmos Francis Fernandes, having office at Pilerne, Bardez, Goa 5. The Mamlatdar of Bardez (Pilerne), having office at Mapusa, Bardez, Goa 2 6. The Deputy Collector of Mapusa, having office at Mapusa, Bardez, Goa. 7. Shri Krishna Bhalchandra Hadfadkar and his wife 8. Smt. Laxmi Krishna Hadfadkar, Both r/o Saulem, Pilerne, Bardez, Goa. 9. Shri Vinayak Bhalchandra Hadfadkar 10. Smt. Vinanti Vinayak Hadfadkar Both r/o Saulem, Pilerne, Bardez, Goa. 11. Shri Somnath Bhalchandra Hadfadkar, 12. Smt. Somati Somnath Hadfadkar, Both r/o Saulem, Pilerne, Bardez, Goa. 13. Smt. Dhanashri Narayan Naik, d/o late Bhalchandra Hadfadkar, r/o Adpoi, Durbhat, Ponda, Goa 14. Shri Amar Hanumant Nanodkar, r/o Arpora, Bardez, Goa. 15. Ms. Sufal Hanumant Nanodkar, r/o Arpora, Bardez, Goa. 16. Shri Sainath Damu Naik, 17. Smt. Reema Sainath Naik, Both r/o New Waddo, Near Ganesh Temple, Vasco-da- Gama, Goa. 18. Shri Pratapsingh G. Jadhav 19. Shri Yogesh Pratapsingh Jadhav Both r/o Plot No.30, 3 Indira Niwas, Mangala Park, Kolhapur, Maharashtra. 20. Smt. Jovita Nazareth, 21. Shri Antonio Filomeno Inacio Caitano Nazareth, 22. Maria Fernandes Nazareth, 23. John Baptista Lawrence Nazareth, 24. Sandra Nazareth, All r/o Volvado, Pilerne, Bardez, Goa, represented herein by their duly constituted Power of Attorney Smt. Jovita Nazareth (Respondent No.20 herein) 25. Milroc Development Company, a Partnership Fir, having office at 5th Floor, Milroc Lar Menezes, Swami Vivekanand Road, Panaji, Goa, represented herein by its Partner Shri Kantipudi Kulasekhar .. Respondents. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. Ryan Menezes, Advocate for the petitioner. Mr. S. S. Kantak, Advocate General with Mr. P. Talaulikar, Additional Government Advocate for the respondent Nos. 1,5 and 6. Mr. M. B. D' Costa, Senior Advocate with Mr. P. A. Kamat, Advocate for the respondent No.4. Mr. S. G. Aney, Senior Advocate with Mr. M. S. Joshi, Advocate for the respondent Nos. 18 and 19. Mr. J. P. Mulgaonkar, Advocate for the respondent Nos. 7 to 12. Mr. A. D. Bhobe, Advocate for the respondent No.25. 4 Mr. V. A. Lawande, Advocate for the respondent No.21. WITH SUO MOTU WRIT PETITION NO.1 OF 2008 Vs. 1. The State Government through its Chief Secretary, Secretariat, Porvorim -Goa. 2. The Administrator of Communidades of Bardez Office at Mapusa Goa 3. The Communidade of Pilerne At Pilerne, Bardez, Goa. 4. The Collector of North Goa At Panaji, Goa. .. Respondents PURCHASER 5. M/s. Millrock Development Company, 5th Floor, Milrock Lar Menezes, Swami Vivekanand Road, Panaji-Goa. 6. Mr. Pratapsingh G. Jadhav R/o Plot No.30, Indiv Niwas, Nagala Park, Kolhapur. 7. Mr. Yogesh Pratapsingh Jadhav R/o. Plot No.30, Indiv Niwas, Nagala Park, Kolhapur. VENDORS 8. Jouita Nazareth (expired) 9. Mr. Fildmeno Anthonio Inacio Nazareth 10. Mrs. Maria Nazareth All r/o Volvaddo, Pilerna, Bardez- Goa 5 11. Mr. John Baptista Lowrence 12. Mrs. Sandra Nazareth Both r/o. Dubai, UAE 13. Mr. Krishna Balchandra Hadfadkar 14. Mrs. Laxmi Krishna Hadfadkar 15. Mrs. Vinayak Balchandra Hadfadkar 16. Mrs. Vinanti Vinayak Hadfadkar 17. Mr. Somnath Balchandra Hadfadkar 18. Mrs. Somathi Somnath Hadfadkar All r/o Saclem, Pilerna, Bardez-Goa 19. Ms. Dhanashri Narayan Naik r/o Adpoi, Durbhat Ponda, Goa 20. Mr. Amar Hanumant Naik 21. Mrs. Sajola Hanumant Nanodkar 22. Mr. Sainath Damu Naik 23. Mrs. Reema Sainath Naik Vasco, Marmugao, Goa 24. M/s. Tahira Computers, 4th floor Joffre Residency, Behind Goa Pharmacy College, Panaji. Mr. M. S. Sonak, Amicus Curiae. Mr. S. S. Kantak, Advocate General with Mr. P. Talaulikar, Additional Government Advocate for the respondent Nos. 1,2 and 4. Mr. A. F. Diniz, Advocate for the respondent No.24. Mr. P. A. Kamat, Advocate for the respondent No.3. 6 CORAM :- A. S. OKA & F. M. REIS, JJ. Date on which submissions are heard :- 19 th July, 2010. Date of which judgment is pronounced : - 5 th August, 2010. JUDGMENT : (Per A. S. OKA, J) The issues involved in these two petitions are common and hence the same are taken up together for the final hearing. The Suo Motu Writ Petition No.1/2008 is on the basis of a newspaper report. The newspaper report was published in daily 'Herald'. The newspaper report was regarding the alleged illegal sale of the land held by Communidade of Pilerne (hereinafter referred to as 'the said Communidade') to builders after entering into compromise with builders. The Writ Petition No.294/2008 is filed in public interest challenging the alienation made by the said Communidade. The contention in short is that in breach of mandatory provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as 'the Tenancy Act') large tracts of land held by the said Communidade have been sold to builders after entering into settlement with the alleged tenants. It is alleged that Section 7 2 of the Goa Land Use (Regulation) Act, 1991 (hereinafter referred to as 'the Land Use Act') which prevents the use of agricultural land vesting in a tenant under the provisions of the Tenancy Act for any other purpose than the agriculture has been completely defeated. FACTS OF THE CASE 2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. The lands surveyed under Survey No.211/1 admeasuring 95925 square meters and the land bearing Survey No.212/1 admeasuring 104825 square meters were held by the said Communidade. In the revenue record (Form No.I and XIV), the name of one Krishna Bhalchandra Hadfadkar (hereinafter referred to as “the said Hadfalkar”) appears as a tenant in respect of both the lands. The 7 to 17 respondents are the legal representatives of the said Hadfadkar. The said Hadfadkar was declared as a deemed purchaser under provisions of Section 18A of the Tenancy Act in respect of both the lands. Notice under Section 18C of the Tenancy Act dated 5th February, 1993 was issued by the Mamlatdar and was published in Government Gazette dated 4th March, 1993. On 8 7th March, 1993, the Mamlatdar passed an order fixing the purchase price. On 30th August, 1993, the Mamlatdar issued a purchase certificate to the said Hadfadkar in respect of both the lands. The Mamlatdar issued a notice under Rule 34 of Agricultural Tenancy Act (Revenue Survey and Record of Rights) Rules, 1967 giving notice of mutation to be made in favour of the said Hadfadkar in the record of rights. The said Communidade (the 4th respondent in W.P. No.294/2008) submitted objections. At the time of hearing before the Mamlatdar, it was contended by the Communidade that the order of purchase has been obtained by the said Hadfadkar by playing fraud and there was no declaration of tenancy made under Section 7 of the Tenancy Act. However, the Mamlatdar passed an order on 17th October, 1997 and allowed the mutation. The Communidade preferred an appeal before the Deputy Collector for challenging the order of Mamlatdar. Another appeal was preferred by the Communidade in the year 1998 for challenging the purchase certificate dated 30th August, 1993 issued by the Mamlatdar in favour of the said Hadfadkar. In both the appeals, it appears that the stay of the impugned order was granted by the Deputy Collector. 3. On 30th March, 1998, the said Communidade 9 filed a suit in the Court of Civil Judge, Senior Division at Mapusa for declaration that the Survey Authorities under the Land Revenue Code have wrongly recorded the name of the first defendant therein (the said Hadfadkar) as a tenant. A prayer for perpetual injunction was made in the said suit. The said Hadfadkar filed the written statement in the said suit contending that the Civil Court had no jurisdiction to entertain and try the suit in view of the provisions of the Tenancy Act in as much as the issue of tenancy can be decided only by the Mamlatdar. The said Hadfadkar contended that he was a tenant in possession. He contended that a Notice under Section 18C of the Tenancy Act was issued. He contended that the Survey was promulgated in the village in the year 1972 and accordingly, his name was recorded in the tenant's column of the Survey Record in respect of both the lands. It was contended that no action was taken by the said Communidade till 1997 from the year 1972. It must be stated here that one Mr.Jose Nazareth(hereinafter referred to as “the said Nazareth”) was also claiming tenancy rights in respect of the lands in question. He was impleaded as a party defendant to the said suit. 4. The appeal preferred by the said Communidade 10 against the order date 7th March 1993 of the Mamlatdar by which purchase price was fixed was dismissed by the deputy Collector. Being aggrieved by both the orders, the said Communidade preferred Tenancy Revision Application No.24/2001 before the Administrative Tribunal. Similarly, the appeal preferred by the said Communidade against the order passed by the Mamlatdar allowing mutation in favour of Hadfadkar was dismissed. It appears that the fourth respondent passed a resolution by which it was resolved to compromise the pending suit between the said Communidade and the said Hadfadkar as well as the said Nazareth. It seems that an application was made before the Administrative Tribunal under Article 154 read with Article 350 seeking permission to compromise the suit. The compromise was that 50 % of land surveyed under Survey No.212/1 would be allotted to the legal representatives of the said Hadfadkar and remaining 50 % will be allotted to the legal representatives of the said Nazareth. In consideration, the said Hadfadkar and the said Nazareth agreed to give up their claim of tenancy against the 4th Respondent in respect of both the lands. The Administrative Tribunal by order dated 1st August 2006 granted permission to compromise the suit. As per the permission granted by the Administrative 11 Tribunal, consent terms were filed in the suit on 14th November, 2006 and consent decree was passed in the suit. Thereafter, the legal representatives of the said Nazareth executed a sale deed dated 7th December, 2006 to which said Communidade was joined as a confirming party. Under the said sale deed, the legal representatives of the said Nazareth sold the ½ share out of Survey No.212/1 allotted to them in compromise to M/s. Milroc Development Company (25th Respondent in W.P. No.294/2008). The sale deed records that on 27th May, 2006, a Memorandum of understanding was executed by and between the parties to the suit and the 25th respondent paid a sum of Rs.10 Lacs by a cheque dated 27th May, 2006 to the legal representatives of the said Nazareth. The sale deed records that an amount of Rs.1 Crore was paid by the 25th respondent to the said Communidade. The sale Deed also records that a 10 meter wide access was granted by the said Communidade through the land surveyed under no. 211/1 to the said purchaser. The registered deed of Confirmation of Sale dated 5th January, 2007 was executed by and between the said Communidade as first party, the said Hadfadkar as second party, the members of the family of the said Hadfadkar as third party and the 18th and 19th respondents (in Writ Petition 12 No.294/2008) as the purchasers. By the said document, the Communidade confirmed the transfer and sale of ½ share of the said Hadfadkar in favour of the 18th and 19th respondents. The said document records that the said Communidade granted 8 meter wide access road through the land surveyed under Survey No.211/1. 5. It must be noted here that on the basis of the consent decree passed in the civil suit, an application was made by the respondents (the said Hadfadkar and Nazareth) in Tenancy Revision Application No.24/2001 recording their no objection for quashing and setting aside the order dated 7th March, 1993 by which sale price of the said land was fixed in favour of the said Hadfadkar and for quashing and setting aside the purchase certificate dated 30th August, 1993. They recorded their consent for quashing the order passed in Mutation Entry Proceedings by which an application for mutation by the said Hadfadkar was allowed. On the basis of the said application, on 5th December, 2006, the Administrative Tribunal disposed of the Tenancy Revision Application in view of the compromise between the parties. It must be noted here that according to the case of the 18th and 19th respondents, an application for review of the said 13 order was filed which was allowed by which the orders passed by the Mamlatdar and Deputy Collector in favour of the said Hadfadkar were quashed and set aside. However, the 18th and 19th respondents have neither placed a copy of the application nor a copy of the order passed thereon on record. In the Writ Petition it is contended that the action of the fourth respondent Communidade was only a money laundering exercise where certain people have definitely pocketed huge amounts of money. It is submitted that if the suit was to be compromised in terms of resolution dated 23rd April 2006, there was no occasion for the fourth respondent to accept consideration of rupees one crore, as the fourth respondent had conferred ownership of the said land surveyed under Survey No.212/1 on the tenants. It is contended that the actions of the fourth respondent are in violation of the Tenancy Act and the Land Use Act. It is pointed out that the fourth respondent has obtained a provisional no objection certificate for converting the land surveyed under survey no.211/1 into 78 plots. It is alleged that the wife of third respondent who is a government servant and is holding the post of the registrar of Communidade figures in the list of interested persons who are interested in acquiring the plots. It is submitted that the 14 actions of the respondents would defeat the provisions of Tenancy Act, the Land Use Act and the Code of Communidade. The prayer in the petition is for issuing a writ of mandamus commanding the fifth respondent (the Mamlatdar) to take action under section 10 of the Tenancy Act and to transfer to the said lands to the government on account of the violation of the Tenancy Act. A writ of mandamus is also prayed for against the first respondent (the State of Goa), the second respondent (the Administrator of Communidades), fifth respondent (the Mamlatdar) and the sixth respondent (the Deputy Collector) for directing the said respondents to take appropriate action by treating this case as the case of violation of the provisions of the Tenancy Act and the Land Use Act. 6. In Suo Motu Writ Petition No.1 of 2008, the newspaper report dated 4th March, 2008 recorded that the Communidade has sold the land surveyed under Survey No.212/1 to the Builders from Panaji as well as to a party from Kolhapur. It was alleged in the newspaper report that the land was illegally sold. The order dated 17th March, 2008 passed in the said Suo Motu Writ Petition takes a note of the said newspaper report. Another report in the same 15 newspaper which was taken note of was regarding the alleged sale of Communidade land to one M/s. Tahira Computers. The said land was surveyed under Survey No.90/1. 7. In Writ Petition 294/2008, reply has been filed by the 4th, 18th and 19th respondents and the 25th respondent. There are additional affidavits filed by the parties to the petition. In the Suo Motu Writ Petition, various parties have filed reply including the 24th respondent M/s. Tahira Computers. THE SUBMISSIONS ON BEHALF OF THE PARTIES 8. The learned Senior Counsel appearing for the petitioner in the W.P. No.294 of 2008 has taken us through the various documents forming part of the record. He submitted that the name of the said Hadfadkar was appearing as a tenant in the record of rights in respect of both the lands surveyed under Survey Nos.211/1 and 212/1. Inviting the attention of the Court to Section 18A of the Tenancy Act, he submitted that the said lands vested in the said Hadfadkar with effect from 8th October, 1976. He 16 pointed out that a public notice under Section 18C of the Tenancy Act relating to the said lands was published by the Mamlatdar. He pointed out that apart from the fact that purchase price was fixed in favour of the said Hadfadkar and sale certificate was issued, the said Hadfadkar contested the civil suit filed by the said Communidade by raising preliminary objection of jurisdiction and by contending that he is the tenant purchaser. He submitted that the order of the Mamlatdar under Section 18C of the said Act and the order of the Deputy Collector in appeal arising out of the proceedings under Section 18C of the said Act were not set aside in the Revision Application No.24 of 2001, but the Revision Application was merely disposed of on the basis of the compromise. He submitted that the Administrative Tribunal had no jurisdiction for granting permission to the said Communidade to settle the dispute in the suit in as much as apart from the clear entries of the name of the said Hadfadkar in the column of the tenant in the revenue record, there was already a sale certificate granted to the said Hadfadkar in respect of both the lands. He invited the attention of the Court to various provisions of the Tenancy Act and submitted that in the event the tenant purchaser is not willing to purchase the tenanted land, the land is 17 required to be resumed and disposed of to various parties as provided in Section 18J of the Tenancy Act. Under no circumstances, the land can be returned to the landlord. He pointed out that the tenancy of a tenant under the Tenancy Act can be terminated only in accordance with the one of the modes of the termination of tenancy provided under the Tenancy Act. He submitted that any surrender by a tenant has to be in accordance with Section 10 of the Tenancy Act. He pointed out that the vesting in favour of the said Hadfadkar was completed on 8th October, 1976 as provided in subsection 1 of Section 18A of the Tenancy Act. He submitted that as a consequence of sale certificate being granted in favour of the said Hadfadkar, in view of Section 18K of the Tenancy Act, further transfer by Hadfadkar was prohibited without previous sanction of the Mamlatdar. He submitted that in view of Section 7 of the Tenancy Act read with Section 58 of the Tenancy Act, only the Mamlatdar had exclusively jurisdiction to decide the issue of tenancy. He submitted that in view of Section 2 of the Land Use Act, the lands could not have been used for any purpose other than the agriculture. He pointed out that the so called compromise entered into the suit is nullity as the Civil Court had no jurisdiction to decide the issue of tenancy. He 18 submitted that by this method, the parties have successfully got rid of the prohibition imposed by Section 2 of the Land Use Act. He submitted that the Tenancy Act is a part of agrarian reforms and the intention of legislature has been completely defeated by such action to which the Communidade is an active party. He submitted that the Civil Court had no jurisdiction to record the compromise as the issue of tenancy was already raised in the suit. He pointed out that even before sanction to the compromise was granted by the Administrative Tribunal, on 27th May, 2006, a Memorandum of understanding was executed to which the respondent Nos.20 to 24, the said Communidade and the respondent No.25 were parties and in fact substantial payment was made under the cheques dated 27th May, 2006 by the respondent No.25 to the legal representatives of the Nazareth. He pointed out that the sale deed records that the consideration of Rs.1 Crore has been paid to the said Communidade only for providing an access through the land surrender survey no.211/1 and the said amount appears to be fanciful for grant of access. He submitted that the modus operandi adopted by the parties has completely defeated the provisions of the Tenancy Act and Land Use Act. He submitted that the object of the Legislature of preserving the 19 agricultural lands has been completely defeated by such modus operandi. He has placed reliance on various decisions. We have made reference to the said decisions in later part of the judgment. 9. The learned Counsel, who has been appointed as an Amicus Curiae in Suo Motu Writ Petition supported the submissions made by the learned Senior Counsel appearing for the petitioner in W.P. No.294/2008. He pointed out that the vesting in a tenant in possession is automatic under Section 18A and once there is such vesting, under no circumstances, the land can go back to the landlord. He pointed out that in case of a land, which is not purchased by the deemed purchaser, the Mamlatdar has to resume the land and to dispose of the same to persons belonging to Scheduled Castes and Scheduled Tribes and to the certain members of the defence forces and freedom fighters, agricultural labourers, landless persons etc. He pointed out that the provisions of Section 33 of the Goa, Daman and Diu Land Revenue Code, 1968 (hereinafter referred to as 'the Land Revenue Code') and pointed out that the penalties are provided for change of use of land without obtaining permission of the Collector. 20 10. The learned Senior Counsel appearing for the said Communidade invited the attention of the Court to the provisions of the Code of Communidade (hereinafter referred to as 'the said Code'). He pointed out that Chapter 5 of the Code lays down the procedure for grant of long leases. He pointed out the different categories of leases provided under the said Code. He pointed out that the lands in questions are cashew gardens and a long lease could have been granted by the Communidade only in accordance with the provision of Article 317 to 322 of the said Code. He pointed out the minutes drawn by the Communidade in respect of the said lands and especially item No.6, 7 and 8. He pointed out that even assuming that there was any right created in favour of the said Hadfadkar, the same could have been only in accordance with Article 317 to 322 of the said Code. He invited the attention to the minutes of the meeting of the Communidade and pointed out that there is no reference therein to lease or transfer the cultivation to said Hadfadkar and it refers only to items of income allotted to Jose Nazareth. There is no reference to the said Hadfadkar. Inviting the attention of the Court to definition of the tenant under Section 2(23) of the Tenancy Act, he urged that the 21 minutes of the Communidade show that there was no tenancy was ever created. He submitted that it is well settled law that entries in survey record are having rebuttable presumption. He submitted that there is no adjudication made under Section 7 of the Tenancy Act as regards the alleged claims of tenancy of the said Hadfadkar and Nazareth. He submitted that under Section 18A of the Tenancy Act, a person becomes tenant