1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 546 OF 2010 SHRI SHAILENDRA R. PRABHU DESSAI son of late Ramchandra S. Prabhu Dessai, aged 39 years, married, resident of H. No.117/1, Mengale, Tarvalem, Shiroda, Ponda, Goa. ... Petitioner versus 1. SHRI ROGHUNATH R. POROBO SAWKAR residing on First Floor, Above Yaasnika Fitness Centre, Santa Cruz, Ponda, Goa. 2. SMT. SHABA R. POROBO SAWKAR, resident of Sambhari Residency, Dhavali Road, Ponda, Goa. ... Respondents Shri Sudesh Usgaonkar, Advocate for the Petitioner. Shri N. Sardessai, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 22ND OCTOBER, 2010. ORAL JUDGMENT Rule. By consent heard forthwith. 2 2. This Writ Petition is directed against Judgment dated 13-1-2010 of the learned Administrative Tribunal, Panaji, by which the learned Administrative Tribunal has upheld the Order dated 25-6-2004 of the Deputy Collector/S.D.O., Ponda which in turn, has upheld the Order of the Mamlatdar dated 18-12-2001 by which the petitioner's application claiming tenancy in respect of two arecanut gardens belonging to the Respondents has been rejected. 3. The petitioner's father Ramchandra Sadashiv Prabhu Dessai way back in the year 1973 had filed a suit before the Civil Judge, Senior Division at Ponda claiming that he was a tenant in respect of the said two arecanut gardens known as "Chinchbhat" and "Pondross". In the said Civil Suit, the statement of the plaintiff i.e. the said Ramchandra Sadashiv Prabhu Dessai was recorded, and so also of the Respondent No.1 herein who was Defendant No.2 in the said Civil Suit. 4. The learned Civil Judge, Senior Division at Ponda was pleased to decree the suit with costs. In other words, the claim of tenancy of the petitioner's father was accepted. Against the said Judgment of the learned Civil Judge, Senior Division dated 3 29-9-1986 an appeal was preferred being R.C.A. No.76/86. The said appeal came to be disposed of by Judgment dated 10-1-1995 of the learned Additional District Judge, Margao by which the learned Additional District Judge, Margao allowed the appeal and set aside the Judgment/Decree dated 29-9-1986. A review application having been filed, the learned Additional District Judge by Order dated 30-9-1996 decided to re-hear the appeal, but in the meantime, the Respondents including Respondent No.1 herein filed Civil Revision Application No.144 of 1996. 4. There was a Special Civil Application(Writ Petition No.55/74) filed by the Respondents herein before the Court of Judicial Commissioner in proceedings arising from the said Civil Suit. On 15-2-1979, both the parties agreed before the Court of learned Judicial Commissioner that the said Ramchandra S. Prabhu Dessai, pending the hearing of the suit would pay to Smt. Subhadrabai Ramchandra Porobo and two others(Petitioners therein) rent in respect of the suit premises which had fallen due and they would pay future rents as accrued until the final disposal of the suit. It was also agreed that the said Smt. Subhadrabai Ramchandra Porobo and two others(Petitioners therein) would 4 collect from the Court all the monies deposited by the said Ramchandra by way of rents. 5. The Civil Revision Application No.144/1996 came to be decided by Order of this Court dated 24-1-1997 and the learned Civil Judge, Senior Division at Ponda was directed to return the plaint in R.C.S. No.3/1973 to the plaintiff Ramchandra S. P. Dessai for presentation to the Mamlatdar having jurisdiction in accordance with the observations made in the said Order. 6. The petitioner/applicant therefore filed an application dated 13-3-1997 before the Mamlatdar enclosing therewith the plaint filed in the Civil Suit No.3/73. The petitioner/applicant led evidence in support of their claim and it is submitted on behalf of the petitioner that the Respondents did not lead any evidence except that of Respondent No.1/Roghunath R. P. Sawkar. 7. The learned Mamlatdar dismissed the claim made by the petitioner by Order dated 18-12-2001 followed by the Deputy Collector by Order dated 26-6-2004 and then by the Tribunal by Judgment dated 13-1-2010. 5 8. Shri Sudesh Usgaonkar, the learned Counsel appearing on behalf of the petitioner, submits that neither the Mamlatdar nor the appellate Court i.e. the Deputy Collector have taken into consideration important pieces of evidence produced by the petitioners particularly the statement of Dr. R. Porobo which was recorded in the said Civil Suit so also that of the petitioner's father which was also recorded in the said Civil Suit as well as the agreement entered into between the parties before the Court of the Judicial Commissioner on 15-2-1979. Learned Counsel on behalf of the Respondents concedes that the Order dated 15-2-1979 has been considered by the Tribunal. Learned Counsel further submits that there has not been any discussion of the evidence produced, in the appellate Order dated 26-6-2004. 9. After having heard learned Counsel on behalf of the parties and the perusal of the Judgments of the Courts below, I am of the view that the grievance made by the petitioners is well justified. Whether the said documents could or could not be taken into consideration because they were recorded before the Court having no jurisdiction, as contended by learned Counsel on behalf of the Respondents, was a matter which was also required to be 6 considered by the Courts below. In fact, the Judgment of the appellate Court i.e. of the Deputy Collector is very cryptic and does not at all discuss in detail the evidence produced by the petitioners. Learned Counsel contends that the evidence given by Dr. R. Porobo before the Civil Court could not have been dismissed as of no consequence, as that evidence given by him contained number of admissions. I would not enter into this controversy which will be required to be considered by the appellate authority. Since three of the documents relied upon were not at all considered by the trial Court as well as by the first appellate Court, namely the statement of Respondent No.1/Dr. R. Sawkar, the statement of the petitioner's father, recorded in the said Civil Suit and the agreement recorded on 15-2-1979, the matter certainly deserves to be remanded to the first appellate Court for re-consideration of the entire matter in the light of the said three documents. 10. However, considering that the dispute between the parties is very old and on a concession made by the parties, the matter is remanded to the learned Administrative Tribunal instead of remanding the same to the Deputy Collector to decide the controversy between the parties afresh after taking into 7 consideration the said three documents produced by the petitioners and without in any way being influenced by Order dated 13-1-2010. It is always open to the Respondents to raise an objection that any of the said documents could not be relied upon because they were made in proceedings before the Court without jurisdiction, and in case such objection is raised, I have no doubt in my mind that the learned Tribunal will decide the same in accordance with law. 11. Consequently the petition is allowed. Orders dated 25-6-2004 and 13-1-2010 are hereby set aside. Rule is made absolute in terms of prayer clause (a). 12. Parties are hereby directed to remain present before the learned Administrative Tribunal on 15-11-2010 at 10.30 a.m. Considering that the dispute started way back in the year 1973, the learned Administrative Tribunal is directed to dispose of the matter as expeditiously as possible, and in any event within a period of six months from 15-11-2010. N. A. BRITTO, J. RD