1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 396 OF 2009 1. Shri Balkrishna Puno Naik, (since deceased) Through legal representatives : 1a) Shri Vaikunth Balkrishna Naik 1b) Shri Gurunath Balkrishna Naik Both residents of House No.97, Wadiwada, Kundaim, Ponda- Goa. .. Petitioners Versus 1. The Communidade of Kundaim Having office at Kundaim, Ponda-Goa and represented by its Procurador. 2. The Administrator of Communidade Office of the Administrator of Communidade, Church Square, Panaji. 3. Shri Gopi Puno Naik, Son of late Shri Puno Naik Major of age, married, business, residing at Wadiwada, Kundaim, Ponda- Goa. .. Respondents. Mr. G. Teles, Advocate for the petitioners. Mr. Rohit Bras De Sa, Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE ORDER : 16 th October, 2009. 2 DATE OF PRONOUNCING THE ORDER : - 6/11/2009 ORDER : 1. The petitioners, the legal representatives of the deceased Balkrishna Puno Naik, are challenging the orders dated 28.11.1996, 4.11.1997 and 2.12.2005 rejecting their plea for declaration regarding agricultural tenancy in respect of the land popularly known as Hodye-Mol village Kundaim, Tal. Ponda, Goa belonging to the respondent No.1 Communidade of Kundaim throughout by Joint Mamlatdar II, Deputy Collector and Administrative Tribunal, Goa respectively in succession. 2. The petitioners' predecessor, the deceased Balkrishna Puno Naik, moved an application before the Mamlatdar at Ponda, Goa seeking a declaration that he was / is the tenant of the respondent No.1 Communidade of Kundaim in respect of the aforesaid landed property at village Kundaim and for deletion of name of the respondent No.3 Gopi Naik, his brother as an agricultural tenant from Survey records. Several facts and circumstances for establishing the claim as an agricultural tenant of the 3 respondent No.1 Communidade as against the recognition of the respondent No.3 Gopi Naik as an Agricultural tenant in his place are pleaded by the deceased Balkrishna in the said application moved before the Mamlatdar. The respondents joined the issues with their replies denying the relevant fact and circumstances pleaded by Balkrishna to advance his case as an agricultural tenant in possession, enjoyment and occupation of the said landed property. The respondent No.3 Gopi, besides pleading his status as an agricultural tenant of the said landed property, raised preliminary objection regarding the maintainability of the said application without any further elaboration in that regard. The respondent No.1 Communidade not only disputed the claim made by Balkrishna to the tenancy in respect of the said landed property but also disputed the status of the respondent No.3 Gopi as its agricultural tenant and revealed that the application under Section 7 of the Agricultural Tenancy Act to decide the question of tenancy claimed by opponent/ respondent No.3 Gopi in respect of the said landed property was pending before the Mamlatdar. The plea thus raised by the petitioners' predecessor Balkrishna in respect of the Agricultural Tenancy came to be rejected by the Joint Mamlatdar-II of Ponda in response to the preliminary 4 objection regarding the maintainability of such plea on the premise that it was a dispute between two tenants over one and the same landed property and the Mamlatdar had no jurisdiction to look into said controversy and the Civil Court was competent to resolve such controversy. The Joint Mamlatdar-II of Ponda based her decision on the judgment of the Single Judge of this Court reported in 1995(1) Goa Law Times 97 and 1996(5) Bombay Cases Reporter 416 Inacio Mariano Dias and Others versus Palmira Valadares. 3. The decision of the Joint Mamlatdar-II of Ponda vide order dated 28.11.1996 was assailed before the Deputy Collector Ponda in Tenancy Appeal / Case No.TNC/APL / 5/1997. The Deputy Collector and S.D.O, Ponda did little except reiterating what was said by the Joint Mamlatdar-II of Ponda vide order dated 4.11.1997. The Challenge to this decision was further taken before the Administrative Tribunal, Goa by way of revision under Section 50 of the Agricultural Tenancy Act, being Tenancy Revision Application No.3/1998. Parties were heard finally on 9.1.2004. However, Administrative Tribunal delivered the judgment on 2.12.2005 dismissing the revision application. The learned Administrative Tribunal, Goa saw no perversity or illegality in 5 the decisions taken by the authorities below in view of the ratio laid down in the case of Inacio Dias (Supra). The learned Tribunal further viewed the controversy as the one over the possession of the landed property between two Agricultural tenants. The learned Tribunal relying on the judgment reported in 1980(2) Mh.L.R. 10 Yashwant Ganapat Khot Versus Anusayabai Anna Khot impliedly indicated that in such matters the Civil Courts and not the Mamlatdar had say. 4. Learned Advocate Teles for the petitioners at the very outset of his arguments urged the Court to remand back the matter to the Administrative Tribunal, Goa for reconsidering the issues involved on the ground of serious prejudice being caused to the petitioners due to inordinate delay in delivering the impugned order dated 02.12.2005 after hearing the revision application. In support of this submission, he relied upon the judgment reported in 2004(3) Bombay Cases Reporter 450 Devang Rasiklal Hora Versus Union of India and another. He further submitted that the authorities below had completely overlooked the fact that the petitioners' deceased predecessor had made an application under Section 7 of the Goa, Daman and Diu Agricultural 6 Tenancy Act, 1964 for declaration as the agricultural tenant in respect of the said landed property belonging to the respondent No.1 Communidade and for consequential relief of deletion of the name of the respondent No.3 Gopi as such tenant from survey records, and the jurisdiction of the Civil Court in such matters was completely barred by Section 58 of the said Act. On this background, he submitted, the learned Mamlatdar ought to have made enquiry; and decided such question of tenancy instead of throwing out such application on the specious preliminary objection. He further submitted that the authorities below had indulged in gross misconstruction of the judicial precedents, particularly Inacio Dias's case, which had interpreted the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964, particularly Sections 7, 8A, 9, 10, 11 and 12 in order to negative the contention that in a dispute about tenancy of lands between earlier and subsequent tenant, the Civil Court had no jurisdiction to grant injunction/ relief. He further argued that the Mamlatdar in view of the provisions of Section 7 was/ is competent authority to decide the questions regarding tenancy and as such the decision to reject his application on preliminary objection was perverse and illegal. 7 5. Learned Advocate Rohit Bras De Sa for the respondents submitted that delay in delivering judgment by itself cannot render such judgment illegal and unjust unless a patent error in law is manifest from such judgment. In his view, the authorities had not committed any legal error in adjudicating the plea of the petitioners for the reliefs as sought in the application moved before the Joint Mamlatdar- II, Ponda. According to him, the application moved before the Mamlatdar Ponda disclosed a dispute between two tenants, which the Mamlatdar was not competent to resolve. Drawing attention to the judgments reported in 1998(3) All M R 76 Palmira Valdares Versus Inacio Mariano Dias and others and 1996(5) Bombay Cases Reporter 416 Inacio Mariano Dias and others Versus Smt. Palmira Valdares, he pointed out that in similar such dispute wherein the relief is claimed by one tenant against a person also claiming to be the tenant, the Single Bench of this Court had held that the Mamlatdar cannot adjudicate such dispute and the proper forum is a Civil Court. Relying on the judgments reported in 2006(1) All M R 394, Bablo Yashwant Sawant and another Versus Vishnu Rama Naik and 1991(4) Bombay Cases Reporter 251, Shriram Narayan Dhond and another Versus Demu Surya Gaude, he further submitted that entry in the 8 record of rights in favour of the respondent No.3 Gopi Puno Naik raised the presumption in favour of the respondent No.3 Gopi as a tenant in possession, occupation and enjoyment of the said landed property and as such the Mamlatdar-II, Ponda had rightly rejected the application of the petitioners. According to him, it is only the Civil Court, which has to decide the issue of possession and this can be seen from the observations made by the Single Judge in Yashwant Ganpat Khot's case - (1979) Bombay Cases Reporter 54 Yashwant Ganapat Khot Versus Anusayabai Anna Khot and others. In his view, the present petition had no merit as the impugned orders were based on sound legal footings. 6. Perusal of the application moved by the petitioner before the Mamlatdar, Ponda, reveals that the petitioners' predecessor Balkrishna Puno Naik was seeking a declaration that he was / is a tenant of the respondent No.1 Communidade of Kundaim therein in respect of its property at village Kundaim and for that purpose, has pleaded therein his status as the tenant in possession, enjoyment and occupation of the said landed property. The opponent No.2 Gopi Puno Naik, the respondent No.3 herein disputed this status and claimed himself to be the tenant in possession, 9 enjoyment and occupation of the said landed property. Essentially, therefore, the question arose before the Mamlatdar, Ponda as to who is / was a tenant in respect of the landed property. In Inacio Mariano Dias's case (supra) learned Single Judge was directly concerned with the question as to whether a suit for injunction is maintainable at the instance of a tenant against a person, who also claims to be the tenant (earlier tenant) in respect of the same property and upon considering the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964, particularly Sections 7,8A, 9, 10, 11 and 12 of the said Act, the learned Single Judge had negatived the contention that the matter can be agitated before the Mamlatdar only under Section 8A of the Agricultural Tenancy Act and the Civil Court had no jurisdiction to grant injunction, particularly for the reason that the Mamlatdar can grant relief to the tenant against the landlord and not against the other persons i.e. a rival tenant. In considering these judicial precedents, the authorities below completely overlooked what the petitioner's predecessor was seeking in the application made before the Mamlatdar. 7. As observed above, the petitioner's predecessor 10 essentially sought adjudication of his status as an agricultural tenant vis-a-vis the respondent No.1 Communidade of Kundaim. It was not merely a controversy between the two agricultural tenants over the possession of the land. On the one hand, there was a person claiming to be a tenant and on the other, a person recognised on record as a tenant. This controversy also had a third dimension in terms of the landlord of the said land respondent No.1 Communidade disputing the rival claims of the petitioners' predecessor and the respondent No.3 to the tenancy in respect of its land. Throwing out such material controversy regarding the tenancy in respect of the said landed property on the specious plea of it being a dispute between two tenants was certainly an error based on misconstruction of the judicial precedents. 8. Inacio Dias case(Supra) arose out of a suit for injunction wherein main issue related to possession. In the instant case, the question of tenancy is the principle issue. The authorities below, therefore, ought to have read the judicial precedents not in isolation of the express legal provisions governing the adjudication of question of tenancy as found in the Goa Daman and Diu Agricultural Tenancy Act, 11 1964. The relevant legal provisions read as under:- Section 7:- If any question arises whether any person is a (or was) tenant or should be deemed to be a tenant under this Act the Mamlatdar shall, after holding an inquiry, decide such question.( In any such enquiry, the Mamlatdar shall presume that any statement as to the existence of a right of tenancy in a record of right prepared in the prescribed manner under and in accordance with the provisions of this Act, is true.)” Section 58:- Bar to jurisdiction of Courts (1) No suit or other proceeding shall lie against any person in respect of anything which is in good faith done or intended to be done under this Act. (2) Save as provided in this Act, no Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, Tribunal, Collector or Government, and no order passed by these authorities under this Act shall be questioned in any Civil or Criminal Court. 9. Considering these provisions, it can be noticed that the impugned orders have placed the petitioners in perilous legal situation, wherein on one hand their doors to a 12 lawful forum constituted under Section 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 for getting the decision on the question of tenancy were shut and on the other hand, section 58(2) of the said Act had clipped the wings of the Civil Courts by barring its jurisdiction to settle, decide or deal with such questions, which is required to be settled, decided or dealt with by the Mamlatdar the legal forum provided under Section 7 of the said Act. The practice of interpretation of the judicial precedents to deny to any person a legal remedy expressly available in law is abhorrent. 10. It is true that entry in the record of rights raises a presumption as contemplated by Section 105 of the Goa, Daman and Diu Land Revenue Code, 1968. Section 105 of the said Code raises a presumption regarding the truth of such entry until the contrary is proved. Thus, it leaves a space for anyone to prove the facts contrary to such entry. In the instant case, it is incumbent upon the Mamlatdar to hold an enquiry and decide the question of tenancy in light of the relevant entry in the record of rights. However, the Mamlatdar without holding such enquiry had prejudged both the petitioners' predecessor and the respondent No.3 as the tenant and thrown out the application of the petitioners' 13 predecessor on coming to an erroneous finding that it had no jurisdiction to entertain such application. As observed above, this is certainly a legal error, which needs to be corrected. 11. Undoubtedly, there can be no dispute with the observations made by the Single Bench of this Court in Yashwant Ganapat Khot's case that the issue of possession is not a matter, which falls within the exclusive jurisdiction of the tenancy authorities and the decision of the Civil Court will have precedence in such matter. However, this case in the given facts and circumstances of this case, will have no bearing on the issue involved in the present controversy. Certainly, a delayed decision in the matter by the Administrative Tribunal was not a happy thing but to get the decision of the Administrative Tribunal reversed on this count, it must be shown that such delay had caused a serious prejudice as a result of the Tribunal's forgetfulness in considering, discussing, examining and dealing with various relevant contentions, which were actually raised before it. There is nothing before this Court to show any such forgetfulness on the part of the Administrative Tribunal. Devang Rasiklal Vora's case, therefore, would have a little 14 bearing in the present petition. 12. In the result, the petition needs to be allowed with costs throughout. The impugned orders are set aside. The matter is remanded to the Mamlatdar, Ponda, Goa for deciding the application of the petitioner's predecessor Balkrishna Puno Naik i.e. Case No.11/8/37/93 - TNC according to the provisions of Section 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 and such other relevant provisions of law expeditiously. Parties to appear before the Mamlatdar, Ponda, Goa on 16.11.2009. U. D. SALVI, J. SMA