1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.588/2009 1. Communidade of Sirsaim, Sirsaim, Bardez, Goa. through attorney Vikas Parab. 2. Ratnakar L. Parab, Tank, Revora, Bardez, Goa. ......... Petitioners. V/s 1. The State of Goa, through Revenue Secretary, Secretariat, Alto Porvorim. 2. The Collector of Goa, Collectorate, Panaji, 3. The Administrator of Communidades Bardez, Mapusa, Bardez, Goa. 4. Town & Country Planning Department, Mapusa, Bardez, Goa. 5. Village Panchayat of Sirsaim, Bardez, Goa. 6. Trimurti Exports, F1 & 3, J B Apartments, Near Pandava Church, Aquem, Alto, Margao. 7. Agnelo D'Souza, Proprietor, 2 Mapsa Electronics, Opp. Mapsa Police Station, Mapsa, Bardez – Goa. 8. Pandurang Parab, Kadamba Transport Corporation, Porvorim Depot, Porvorim, Bardez – Goa. 9. Nasiket Parab, Hanuman Wado, Ecoxim, Bardez, Goa. ......... Respondents. Mr. P. H. Parab, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. P. Talaulikar, Addl. Govt. Advocate for respondent Nos.1, 2 and 4. Mr. S. R. Rivonkar, Advocate for respondent No.3. Ms. N. Kankonkar, Advocate for respondent No.5. Mr. V. A. Lawande, Advocate for respondent No.6. Mr. V. Korgaonkar, Advocate for respondent Nos. 7 to 9. CORAM :- S.J. VAZIFDAR & U.D. SALVI, JJ. Date of reserving the judgment : 27/04/2010 Date of pronouncing the judgment : 05/05/2010 3 J U D G M E N T : (Per S.J. VAZIFDAR, J.) Rule. Rule is made returnable and heard forthwith. 2. The petitioners have sought the following reliefs :- (A) The Honourable Court be pleased to issue a writ of Mandamus or an order directing the Collector, the Resp. No. 2 to enforce the memorandum dated 7.5.2009. (B) Hon. Court be pleased to issue a writ of Mandamus or an order directing the Collector, the Resp. No.2 to initiate summary eviction proceeding against the Resp. No.6 under Art. 371 of the Code of Communidades evicting the Resp. No.6 from the property of the Petitioners. (C) Hon. Court be pleased to issue a writ of Mandamus or an order directing the Respondent No.4 the Town & Country Planning Department Mapusa to stop the Resp. No.6 from using the road and restoring the Communidade land to its original condition as provided under S. 49(4) of G.D.D. Town and Country Planning Act. (D) Hon. Court be pleased to issue order or direction to the Village Panchayat of Sirsaim 4 the Resp. No.5 to immediately stop mining activities being carried by the mining companies. (E) Ad interim reliefs in terms of prayers (A), (C) and (D) above. (F) Any other order or direction the Honourable Court thinks it fit and proper in the circumstance of the case. 3. Prayer (B) is dependent upon prayer (A) and is, in fact, sought pursuant to the relief claimed in prayer (A). 4. Respondent Nos. 2, 3, 4 and 5 are the Collector of Goa, the Administrator of Communidades of Bardez, Town & Country Planning Department, Mapusa and Village Panchayat of Sirsaim, respectively. Respondent No.6 is Trimurti Exports. Respondent Nos. 7, 8 and 9 were impleaded pursuant to an amendment. 5. A Memorandum dated 7.5.2009 was issued by the Collector, North Goa District, stating that the members of the managing committee of Comunidade of Sirsaim along with the Administrator of Communidade, North Zone had met the Collector on 5 6th May, 2009 and filed a representation stating that the ex-managing committee has illegally entered into some agreement with some companies for use of Communidade land. The Memorandum further states that a notice regarding the unauthorised use of Sirsaim Communidade land was also issued by the Collector (North) Goa and the Administrator of Communidade in February, 2009. It further states that it had been reported that the land of Sirsaim Communidade is being illegally used by certain companies. The Memorandum directs the police to stop the illegal use of the land and to take appropriate action in the matter. 6. It appears that a representation had been made against the above Memorandum by and on behalf of Salgaonkar Mining Industries Ltd. and respondent No.6. They contended that Salgaonkar Mining Industries had a valid agreement for mining and had been operating the same for a considerable long period of time. The Deputy Collector and S.D.M. Mapusa was, therefore, directed to reconsider the matter. 7. After hearing all the parties, the Dy. Collector and S.D.M. passed an order dated 13.5.2009, holding that there was no cause for 6 interference as the matter being a civil dispute. The Communidade or the Administrator of Communidades were directed to approach a competent Court of law for any relief, if aggrieved. The order refers to the lease agreement entered into between the Communidade, the mining company and respondent No.6. 8. Respondent No.6 had challenged the memorandum dated 7.5.09 by filing Writ Petition No.307/09. This was prior to the said order dated 13.5.09. By the time, the writ petition was taken up for hearing by this court, the said order dated 13.5.09 was passed. The Division Bench, therefore, by an order dated 15.6.09 recorded that the Memorandum dated 7.5.09 was only an interlocutory order and that the final orders were passed in the matter on 13.5.09. It was, therefore, held that Memorandum/Order dated 7.5.09 being only an interlocutory order, does not survive and the grievance of respondent No.6 i.e. the petitioner therein does not survive. The petition was, therefore, disposed off as having been rendered infructuous, but without prejudice to the rights of the respective parties. In these circumstances, the question of enforcing Memorandum/Order dated 7.5.09 cannot and does not arise. 7 9. The Administrator of Communidades, North Zone by an order dated 17.7.2009 declared the Memorandum of Understanding between Communidade of Sirsaim and respondent No.6 for the use of the road for plying their vehicles on the said land, as null and void. This order was challenged by respondent No.6 by filing Writ Petition No.520/2009. By an order dated 7.12.2009, a Division Bench of this Court set aside the order dated 17.7.2009. The Division Bench accepted the statement of the Counsel appearing on behalf of the Administrator that the petitioner therein i.e. respondent No.6 would be heard before passing appropriate orders. The order dated 17.7.09 was treated as a show cause notice. 10. By an order dated 18.02.10, the Administrator of Communidades maintained the Order dated 17.7.2009, declaring the said Memorandum of Understanding null and void. Respondent No.6 has challenged this order before the Administrative Tribunal, under Article 154 of the Code of Communidades. The Administrative Tribunal has stayed the order dated 18.2.2010 and now the matter is 8 pending before the Administrative Tribunal. The question of the use of the said road is, therefore, pending before the Administrator/ Administrative Tribunal. 11. In the circumstances, Prayers (A) and (B) are rejected. Prayer (C) is not considered by us at this stage as the matter is pending before the Administrative Tribunal. Liberty to the parties to challenge the order of the Administrative Tribunal, if they so desire. As far as prayer (D) is concerned, we are not inclined to grant or even consider the same in the present Writ Petition, as the reliefs would directly affect the third parties, namely the mining companies which, admittedly, hold licences/permissions. If, according to the petitioners, the licences have been illegally granted, they ought to adopt proceedings by impleading the mining companies. In their absence, no relief can be granted. 12. The Writ Petition is disposed off and the Rule is made absolute in the above terms. The petitioners are at liberty to adopt appropriate proceedings in respect thereof. We express no view on the merits of the contentions, including as regards the validity of the said 9 licences. No order as to costs. S.J. VAZIFDAR, J. U.D. SALVI, J. ssm.