IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 304 OF 2010 M/S. MANISH REALTORS, PROPRIETORY CONCERN OF MAHENDRA R. DHARWATKAR AND 9 ORS., ... Petitioners Versus STATE OF GOA THROUGH THE CHIEF SECRETARY, ... Respondent Mr. Rohit Bras De Sa, Advocate for the Petitioners. Mr. G.Shiordkar, Government Advocate for Respondents nos.1 and 2. Coram:- A. S. OKA & F. M. REIS, JJ. Date:- 23rd June, 2010 P.C: Heard the Learned Counsel appearing for the Petitioners and the Learned Government Advocate appearing for Respondents nos. 1 and 2. 2. The substantive prayer made in this petition is for a declaration that the order dated 3rd April, 1978 made in Tenancy Case No.TNC/JT/MDAR/ADDL/1/77 is ultra vires the provisions of the Constitution and that is ultra vires of the Agricultural Tenancy Act and the Rules. The second prayer is for issuing a writ of mandamus or any other writ, order or direction mandamus directing the Mamalatdar of Tiswadi Taluka to identify and demarcate the agricultural tenanted property as per the tenancy declaration made by the aforesaid order. The third prayer is for a writ of mandamus or direction to the Respondent to deliver certified copy of the order passed in Tenancy Declaration Case. The fourth prayer is for issuing a writ to the Respondent Mamlatdar to disclose whether the Tenancy Declaration Case existed on the file of the Mamalatdar. 3. The Learned Counsel appearing for the Petitioners submitted that an advantage is sought to be taken of the alleged order dated 3th April, 1978 by the persons claiming tenancy under the said order. He submitted that there is a serious doubt about the existence of the said tenancy case or any such order. He submitted that on one hand the petitioners have not been issued the certified copy of the alleged order dated 3rd April, 1978, on the other hand, the Mamalatdar has failed to perform his duty of identifying and demarcating the agricultural tenanted property as per the tenancy declaration claimed in the said case. He invited our attention to the provision of Chapter III of the Agricultural Tenancy (Revenue Survey and Record of Rights) Rules, 1967. He submitted that the Mamlatdar is under an obligation to identify and demarcate the alleged agricultural tenanted property. 4. The learned Government Advocate has tendered an Affidavit of the Mamlatdar of Tiswadi Taluka. It is stated therein that the file of the alleged tenancy declaration case is not traceable. He has stated that the efforts were made to trace the said file. Our attention is also invited to communication dated 19th September 2008, issued by the Joint Mamlatdar-II, Tiswadi Taluka in which it is stated that he records maintained in the office of the Joint Mamlatdar were examined and it was seen that the said case was not found in the records. 5. We have considered the submissions made by the Learned Counsel appearing for the Petitioners. It is not in dispute that the petitioners have filed Special Civil Suit No2/2010/A praying for various reliefs, which are as under: "a) The plaintiffs state that the plaintiffs are also entitled for a judgment and Decree of declaration of tenancy made by the Mamalatdar in Tenancy Declaration Case No.TNC/JT/Mdar/ADDL/1/77 is illegal since the order does not contain the description of the property, boundary or name of the property and names of the owners and it does not pertain to the suit access being enjoyed by the plaintiffs. B) The Plaintiffs are also entitled for a Judgment and Decree of Declaration that the Plaintiffs are entitled to a road of 10 meter width and 95 meter length running across the land surveyed under survey no.219/1 of Morombi O Grande village as an easement by way of prescription since the said access has been used continuously, openly, peacefully, uninterruptedly for a continuous period of 20 years and more. C) The Plaintiffs are also entitled to an easmentary of necessity not only on account of the fact that there is a specific grant of right of way given in the Agreement for Grant of Right of Way dated 17/3/2008 but also on account of the fact that the Petitioners have no access to their property being survey no.226/1 of Morombi O Grande Village except to the property of Defendant nos.1 to 10 and, therefore, the said right of way have to be considered as an easementary of necessity. D) The Plaintiffs are also entitled for a judgment and decree of declaration that they are entitled for easementary right of way being a road of 10 metres width and 95 meters length running across the land surveyed under survey no.219/1 of Morombi O Grande and which is shown in red colour on the plan annexed to the Agreement for Grant of Right of Way dated 17.3.2008. E) The plaintiffs are also entitled for a Judgment and Decree of permanent injunction restraining Defendants nos.11,a),B),C),d),e),f),g),h),(i),j),k) from interfering with or obstructing the easementary right of way by way of prescription which is a road of 10meters width and 95 meters length running across the land surveyed under survey no.219/1 of Morombi O Grande and which is shown in red colour on the plan annexed to the Agreement for Grande of Right of Way dated 17.3.2008. F) The plaintiffs ar also entitled for a Judgment and Decree of temporary injunction restraining Defendant nos.11 (a),b),c),d),e),f),g),h),i),j),k) from interfering with or obstructing the easementary right of way by way of prescription which is a road of 10 meters width and 95 meters length running across the land surveyed under survey no.219/1 of Morombi O Grande and which is shown in red colour on the plan annexed to the Agreement for Grant of Right of Way dated 17.3.2008. G) Ad interim ex parte relief in terms of prayer clause "F" herein above. H) For such other and further relief that this Hon'bLe Court deems fit and proper in the facts and circumstances of the case be passed." 6. Thus, the Petitioners have already fled a civil suit for challenging the same order allegedly made in Tenancy Declaration Case. Even according to the case of the Petitioners, from the alleged order of the Mamlatdar it is not possible to identify the property in respect of which the declaration of the tenancy is granted. Therefore, it is impossible to expect that the Mamlatdar will identify and demarcate the agricultural tenanted property in respect of which tenancy declaration has been allegedly granted. The Affidavit of the Mamlatdar discloses that the file of the case is not available. As the records of the case are not available, it is not possible to direct the Mamlatdar to deliver the certified copy of the order dated 3rd April, 1978. The Affidavit discloses that efforts have been made to trace out the the case file, but the said efforts have failed. Therefore, we cannot issue a writ directing the Mamlatdar to disclose whether tenancy declaration case existed on his file. 7. The civil Suit filed by the Petitioners is pending. The questions whether any such case was filed and whether the said order exists will have to be decided in the Civil suit. In view of the pendency of the civil suit, the present writ petition under Article 226 of the Constitution of India cannot be entertained. 8. Subject to what is observed above, the petition is accordingly rejected. A. S. OKA, J. F. M. REIS, J. ap/-