1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.658 OF 2003 1. State of Goa through Chief Secretary, having his office at Secretariat, Panaji, Goa. 2. Captain of Ports, Having its Office at D.B. Marg, Panaji, Goa. …. Petitioners V/s Shri Serafino Mascarenhas, deceased through his legal heirs 1. Mrs. Joano F.B. e Gomes Barreto Mascarenhas (wife) 2. Mr. T. Carmo Mascarenhas (son) and his wife 3. Mrs. Corina N.D'Silva Mascarenhas 4. Mr. Martinho S. Mascarenhas (son) and his wife 5. Mrs. Maria A.A. Mascarenhas All residents of H.No.343, Down Samant Shop, Aquem, Alto, Margao-Goa. 6. Mrs. M. Yvonne Mascarenhas Santimano (daughter) and her husband 7. Mr. Leslie Santimano, both r/o. Behind Durga Hotel, Khareband, Margao-Goa. …. Respondents Ms. Susan Linhares, Additional Government Advocate for the 2 Petitioners. Shri M.B. Da Costa, Senior Advocate with Shri J.A. Lobo, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 7th DECEMBER, 2011 JUDGMENT: The above petition challenges the judgment dated 20/03/2003 passed in Land Revenue Appeal no.71/1996 whereby the appeal preferred by the respondents challenging the order passed by the Deputy Collector dated 21/08/1996 directing the respondents to vacate the encroachment by removing the structures, came to be quashed and set aside. 2. The facts of the case are that on the basis of the check list dated 2/09/1975 prepared by the Office of the Captain of Ports stating that the respondents had constructed a bund around the Government land where there are no structures, a notice under Section 40(2) of the Goa, Daman and Diu Land Revenue Code, 1968 dated 2/12/1975 was issued by the petitioners directing the respondents to vacate the land failing which the respondents would be summarily evicted under Section 40 of the said code. By the 3 same notice, the respondents were also directed to remove the construction/building or crops raised in the said land. The respondents filed a reply to the said show cause notice disputing the contentions therein and pointed out that the construction of the bund was within their own property and not on the land belonging to the petitioners and that in the year 1959 a similar dispute arose and a site inspection was carried out by the Captain of Ports and during the course of the said inquiry, the land in dispute was surveyed through the Office of the Captain of Ports and Land Survey Department and the sketch of the property was drawn showing the limits of the property and that the then Governor General gave his final decision. It was further their case that the respondents were allowed to construct the wall around the said property and that the respondents were given the licence for carrying out such construction. The learned Deputy Collector after going through the records, by the said judgment dated 21/08/1996 allowed the application of the petitioner no.1 dated 2/09/1975 and directed the respondents to vacate the encroachment from the property surveyed under no.94/1 of village of Cavellosim by removing all the existing construction/building/vegetation/trees, etc. within one month from the date of the said order. Being 4 aggrieved by the said order passed by the Deputy Collector, the respondents preferred an appeal before the Administrative Tribunal of Goa which by judgment dated 20/03/2003 came to be allowed and the order passed by the Deputy Collector dated 21/08/1996 was quashed and set aside. Being aggrieved by the said judgment the petitioners have preferred the present petition. 3. At the time of admission of the above petition this Court passed an interim relief in favour of the petitioners whereby pending the hearing and final disposal of the above petition the respondents, their agents, representatives and servants were restrained in any manner changing the nature of the suit land under survey no.94/1 or doing plantation or any other activities in the suit property under Survey no.94/1. 4. Thereafter, the respondents filed an application being MCA No.72/2005 seeking discharge or to vacate the said ad interim order dated 22/01/2004, but however, this Court by order dated 30/09/2005 made the said order dated 22/01/2004 absolute to remain in operation until the disposal of the Writ Petition, but however, the petitioners were also directed to maintain status quo 5 in respect of the subject matter of the land. A clarification was also given to the effect that if the subject property requires any maintenance or protection from the inundation the order of status quo shall not come in their way in taking appropriate steps for protecting the subject matter from inundation. 5. The learned Additional Government Advocate appearing for the petitioners has assailed the impugned order and pointed out that the suit property surveyed under no.94/1 belongs to the petitioners and, as such, the petitioner is entitled to summarily evict the respondents from such Government land. The learned Additional Government Advocate has further pointed out that the respondents are the encroachers in the Government land and, as such, the petitioners are entitled in law to seek their eviction. Learned Counsel pointed out that the Tribunal has erroneously come to the conclusion that the subject property belongs to the respondents while on the contrary the evidence on record suggests otherwise. Learned Counsel further pointed out that the Tribunal has erroneously appreciated the evidence on record and has come to the erroneous conclusion that the subject property surveyed under no.94/1 does not belong to the petitioners. Learned Counsel 6 further pointed our that considering that the impugned order passed by the Deputy Collector was passed without holding an inquiry, nevertheless, taking note of the judgment passed by this Court in Writ Petition No.476/2008 dated 15/04/2009 and the order dated 10/08/2010 passed in Writ Petition No.223/2009 the matter may be remanded to the Deputy Collector to hold an inquiry with regard to the claim of title put forward by the respondents, in accordance with law. The learned Additional Government Advocate, as such, submits that the impugned judgment of the Tribunal deserves to be set aside. 6. On the other hand, Shri M.B. Da Costa, learned Senior Counsel appearing for the respondents has supported the impugned judgment. Learned Senior Counsel pointed out that the respondents have produced voluminous evidence on record to establish their title over the suit property and specially the document of land registration as well as their inscription and the cadastral survey which conclusively establish that the title of the subject land belongs to the respondents. Learned Senior Counsel has further pointed out that considering the evidence adduced by the respondents there can be no dispute that the subject land is a 7 private land belonging to the respondents and that the petitioners have failed to adduce any evidence to establish their claim of title over the said land and, as such, the Tribunal was justified to allow the appeal and set aside the order of the Deputy Collector. Learned Senior Counsel further pointed out that in case this Court finds it appropriate to direct an inquiry to be held by the Deputy Collector in accordance with the judgments passed by this Court relied by the Counsel appearing for the petitioners, in such an event interim orders passed in the above petition which were in operation till date can be directed to be in operation during the pendency of such inquiry. Learned Senior Counsel further pointed out that in view of modification by this Court of the interim order the respondents have also been given liberty to take necessary steps of maintenance of the subject property from inundation and, as such, liberty is to be given to the respondents to carry out such measures as may be required. Learned Senior Counsel further pointed out that the respondents have also filed Civil Suit No.241/2004 against the petitioners for declaration of title and, as such, unless such title is adjudicated by the Civil Court, the question of the Deputy Collector going ahead with the proceedings would not arise. Learned Senior Counsel further pointed out that only in case the 8 petitioners succeed to establish that the respondents have no title to the subject land the Deputy Collector can proceed to invoke the provisions of Section 40 of the Land Revenue Code to remove the alleged encroachment in the subject land by the respondents. The learned Senior Counsel further pointed out that the Tribunal has rightly appreciated the evidence on record and has rightly come to the conclusion that the subject land does not belong to the Government. 7. During the course of the hearing, learned Senior Counsel has produced title documents before this Court to establish the claim of title but however the learned Additional Government Advocate has pointed out that such documents were not before the Tribunal and, as such, the question of relying upon such documents before this Court would not arise. The leaned Senior Senior Counsel has pointed out that in any event the learned Deputy Collector has no jurisdiction to invoke the provisions of Section 40 of the Land Revenue Code as according to him such directions can be given only to the properties belonging to the Central Government. 8. Upon hearing the learned Counsel and on perusal of the 9 record, the undisputed facts of the case establish that there is a dispute of title between the petitioners and the respondents. There is no dispute that a Civil Suit has been filed by the respondents inter alia seeking for a declaration of the title against the petitioners. This Court while disposing of Civil Revision Application No.14/2008 has directed the learned District Judge to decide the suit in accordance with law. Hence, there can be no dispute that an adjudication with regard to the title of the subject land is under consideration before the Civil Court. Be that as it may, there is also no dispute that the impugned order passed by the learned Deputy Collector was without holding an inquiry with regard to the claim of title put forward by the respondents. Taking note of the judgment passed by this Court in Writ Petition No.476 of 2008 in the case of State of Goa V/s. Smt. Aban Sakharni, the Deputy Collector will have to hold an inquiry with regard to the claim put forward by the respondents before coming to the conclusion as to whether the powers under Section 40 of the Land Revenue Code can be invoked or not. Apart from that, the objection of the respondents to the effect that the Deputy Collector has no powers or jurisdiction to invoke provisions of Section 40 of the Land Revenue Code is also a matter which will have to be 10 decided by the Deputy Collector after hearing both the parties in accordance with law. But however, considering that the suit for declaration of title is pending before the competent Civil Court it would be appropriate that the inquiry by the Deputy Collector will have to proceed only after the Civil Court decides the claim of title of the respondents in the said suit. Learned Deputy Collector would have to proceed with such inquiry on the basis of the disposal of the civil suit filed by the respondents. The law is well settled that the decisions on title by the Civil Courts are binding on the Revenue Authorities. Hence, the question of proceeding with the inquiry before the Deputy Collector when such adjudication is pending before the Civil Court would be incompetent. As such, considering the facts and circumstances of the case, I find it appropriate that the inquiry by the Deputy Collector will proceed only after the Civil Court adjudicates on the claim of title put forward by the respondents. 9. Dealing with the contentions of the learned Senior Counsel Shri M.B. Da Costa, to the effect that the interim orders passed by this Court should be in operation during the pendency of the inquiry, I find that considering that the proceedings may be delayed 11 it would be appropriate that such interim orders shall be beneficial to both the parties and the same should be in operation during the pendency of the said inquiry. The contention of learned Senior Counsel to the effect that the respondents should be permitted to carry out work of construction of the bund to prevent inundation cannot be accepted at this stage. In any event, in case any immediate activities are required to be carried out in the light of the interim orders passed by this Court the parties would have to take appropriate recourse in law before the Civil Court in the pending Civil Suit to seek such relief. In any event, the question of granting any such permission in the present Writ Petition does not arise at all. As stated herein above the interim order passed by this Court dated 22/01/2004 and partly modified on 30/09/2005 shall be in operation during the pendency of the inquiry before the Deputy Collector. 10. In view of the above, I pass the following order: O R D E R (i) The impugned judgment passed by the Administrative Tribunal dated 20/03/2003 passed in Land Revenue Appeal No.71/96 is quashed and set aside. 12 (ii) The order passed by the Deputy Collector dated 21/08/1996 is also quashed and set aside. (iii) The Deputy Collector, Sub-Division Officer, Margao is directed to proceed to hold an inquiry with regard to the claim of the respondents in the light of the observations made herein above, in accordance with law. (iv) The interim orders passed by this Court on 22/01/2004 and 30/09/2005 shall continue to be in operation until the final disposal of the said inquiry. (v) Rule in the above terms. (vi) Petition stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-