IN THE HIGH COURT OF BOMBAY AT GOA ***** WRIT PETITION NO. 117 OF 2000 Ricardina Noronha (since deceased) through her follow- ing legal heirs:- (A) Mr. Francisco Jose de Conceicao de Silva Noronha, s/o deceased, married to (A)(1) Maria Teresa da Silva Faria de Noroha, both r/o Macau at office address: Ave Alm. Riveiro No.1-0 1., MACAU, (B) Mr. Fernando Victor Wolfango da Silva de Ataide e Teive de Noronha, s/o deceased, divorcee, r/o Lisbon, Portugal, (C) Mrs. Maria Gabriela de Noronha Pereira de Costa, (expired on 5.11.1995) d/o deceased and her husband Atonio Pereira da Costa who expired on 14.7.2000 through legal heirs: (C1)(i) Maria da Conceicao de Noronha Pereira da Costa Victoria Lopes, daughter, married to (C1)(ii) Jose Manuel Vitoria Lopes, both r/o Rua Antonio, Stamp No.3, r/o esq. Lisboa, Portugal, (C2)(i) Isabel Maria de Noronha Pereira da Costa Silva,daughter, married to (C2)(ii) Antonio Jose Pereira da Silva, both r/o Rua Joao de Deus Ramos No.5., 4, Esq., Lisboa, Portugal, (C3)(i) Maria de Lourdes Noronha Pereira da Costa Ferreira, daughter, married to - (C3)(ii) Antonio Aguiar - 2 - Ferreira, both r/o Rua Carlos Mardel No.11, 1 Dto., Lisboa, Portugal, (C4)(i) Francisco Antonio de Noronha Pereira da Costa, son, married to - (C4)(ii)Maria Joao Ferreira Franco Lopes Pereira da Costa, both r/o Rua Jacinto Nunes No.11, 2 Dto., Lisboa, Portugal, (C5) Fernando Xavier de Noronha Pereira da Costa, son, single, r/o Rua Joao de Deus Ramos No.5, 4, Esq., Lisbao, Portugal, (1) Maria Alice da Silva de Noronha e Oliveira, daughter of deceased married to (D)(1) Fernando Artur Peixoto de Oliveira, both r/o Rua Jacinto Nunes NO.11, 3 Esq. - 1170, Lisbon, Portugal. ... Petitioners. Versus 1. State of Goa, through Chief Secretary, 2. Custodian of Evacuee Property, with its office at Panaji, 3. Antonio Sequeira Coutinho Pereira, legal representa- tive of Maria Elsa, r/o Mayem, Bicholim, Goa. ... Respondents. Mr. Bomi Zaiwalla and Mr. Fredum Devetri, Senior Advocates with Mr. Iftikhar Agha and Ms. Swati Kamat, advocates for the petitioners. Mr. A.N.S. Nadkarni, Advocate General with Mr. H. D. Naik, Addl. Govt. Advocate for respondent no.1. Mr. S. R. Rivonkar, advocate for respondent no.2. Mr. S. K. Kakodkar, Senior Advocate with Mr. Joel D’Souza, advocate for respondent no.3. - 3 - CORAM : B. H. MARLAPALLE & N. A. BRITTO, JJ. DATE OF RESERVING THE JUDGMENT : 7th December, 2004. DATE OF PRONOUNCING THE JUDGMENT : 22nd December, 2004. JUDGMENT (Per Marlapalle, J.) This petition filed under Article 226 of the Constitution of India takes exception to the Order dated 14th February, 2000, passed by the Under Secretary (Home), Government of Goa, by which the earlier Order dated 21st April, 1999 passed by the Custodian of Evacuee Property came to be revoked. 2. Mr. Jose Joaquim de Noronha was the Count of Mayem and was married to Filomena Correia Noronha. The couple had six children (two sons and four daughters). Filomena died in 1903. It appears that Mr. Jose Joaquim had grandchildren through his son Dr. Francis Antonio who was married to Ricardina. On the demise of Filomena Correia Noronha, the Countess of Mayem, Mr. Jose Joaquim de Noronha instituted inventory proceedings under registration no.957/1929 and the share of his late wife came to be divided amongst all other legal representatives and his own half share initially he retained to himself, but subsequently willed it (by will dated 17th/18th April, 1929), in favour of his grandson Eurico Antonio Silva, the son of Dr. Francisco Antonio Wolfango Silva. Eurico had four other brothers by name Dr. Francisco Wolfango de Silva, Dr. Abel de Silva, Raul Wolfango de Silva and Dr. - 4 - Fernando Wolfango de Silva. Dr. Fernando Wolfango de Silva was married to Maria Elsa Wolfango de Silva. Eurico begot four children who have subsequently come on record as petitioners. 3. The inventory proceedings no.957/1929 were concluded by Consent Terms drawn on 20th June, 1930 and Clause 11 of the said Consent Terms read as under:- "The parties mentioned in toto the testamentary disposition and jointly agree that in respect of Chapel of Our Lady of Miracles and the spring existing in Mayem be reserved for use of all heirs and further agree that in case the first party Eurico decides to sell the property in which the spring is located, he shall pay to the other interested parties the part of the price of the said spring proportionate to the hereditary share which shall be fixed by arbitration in absence of any agreement. In case said Eurico sells other properties of Mayem and is not living there, the Chapel referred to above shall be handed over for administration to "Cabido de See Primacial" with all the properties and belongings." 4. The entire property at Mayem was thus divided in two parts, namely the northern part and the southern part, both having been separated by a line drawn as described in Clause 6 of the Consent Terms in the inventory proceedings and represented in the plan annexed thereto. The southern part was willed to Eurico in toto and the northern part was left as a joint property amongst all the legal heirs and in the same the right of Fernando - 5 - Wolfongo de Silva and his wife Maria Elsa was to the extent of 1/36th share. Fernando Wolfongo de Silva had no right in respect of the southern half. The present respondent no.3 claims to represent Maria Elsa on the ground that her share in the property of the Count was sold to him after the demise of Fernando in 1989. 5. Some of the legal representatives of the Count were declared as evacuees by the Custodian vide his Order dated 25th June, 1965 and consequently their properties as evacuee properties. Dr. Fernando de Noronha Wolfango de Silva and his wife Maria Elsa had filed an appeal against the said declaration. Simultaneously Ricardina, Maria Manuela and Alice also had filed appeals. The appeals were allowed by Orders dated 30th July, 1966 and 23rd July, 1966, respectively and the entire case was remanded for deciding it afresh. Eurico and other legal heirs had left Goa after its liberation and only Dr. Fernando De Silva and his wife Maria Elsa continued to stay in Goa. Written Statement on behalf of Eurico Noronha was submitted on 6th July, 1965, before the Custodian and it opposed the proceedings initiated under Section 5 of the Goa Administration of Evacuee Property Act, 1964 (for short "the Evacuee Act"). However, before the proceedings were decided on remand he died on 6th May, 1965. After hearing all the parties concerned, the Custodian by his fresh Order dated 14th November, 1967, - 6 - held that all the successors in interest of the late Eurico, Mrs. D. Maria Helena, Mrs. D. Maria Amelia, Mr. D. Francisco Cristovao and his wife D. Alice, Jose de Noronha, Dr. Francisco Antonio and his wife D. Filomena Conceicao were evacuees and their properties were declared as evacuee property. The Custodian further ordered as under:- "I accordingly hold that the southern half of the property exclusively belongs to Mr. Eurico de Noronha de Silva and the same is now exclusive Evacuee Property. It is further held that in the northern half 35/36 shares is evacuee property belonging to the evacuee mentioned above.................................... Dr. Fernando and his wife Mrs. Maria Elsa Filomena have got only 1/36 shares in the northern half of the property. They shall surrender possession of all the evacuee property in their possession and also submit an account of the income of the evacuee property which is in their management until now." 6. Inventory proceedings No.7/79 were instituted regarding the common property to the extent of 35/36th share in the northern half of Mayem and the respondent no.3 had made an application on 2nd May, 1980 seeking directions against the Custodian not to effect payment to the petitioner. On 19th July, 1980, there was an agreement between the parties so as to modify the ex parte order dated 2nd July, 1980. Some of the terms of this consent order are as under:- - 7 - "I. The parties have no objection that Mrs. Ricardina Emilia Guedes de Almeida Osorio da Silva de Noronha be paid upto Rs.7,00,000/- by the said Custodian of Evacuee Property out of the amount lying with the said Custodian of Evacuee Property which will be adjusted against the income of the southern part and any other properties belonging to the late Eurico da Silva; II. The parties have agreed that the application be paid by the said Custodian the amount corresponding to 1/36 share in the northern part as fixed by his order dated October 14, 1967." The said application was rejected on 2nd July 1987, as the Court held that it did not have jurisdiction to entertain it. 7. The original petitioner Ricardina obtained Indian Nationality by naturalization on 21st April, 1993, and the southern half of the property of her husband Eurico was partitioned between her and her children vide Partition Deed dated 9th December, 1993 under registration no.779/93 dated 31st December, 1993. In June, 1993, Mrs. Maria Elsa filed Special Civil Suit NO.154/93 in the Court of the Civil Judge, Senior Division at Panaji for a declaration that Eurico would not be entitled for the entire southern half of the property as he failed to maintain the terms of the Will dated 17th/18th April, 1929. On 11th May, 1995, Ricardina submitted an application to the Custodian for restoration of the southern half of the property in her possession. It appears that the Custodian had issued notices for enquiry - 8 - in response to the said application. Maria Elsa had also filed an application for injunction, i.e. C.M.A. 271/93, which was allowed by the Civil Judge, Senior Division, vide his Order dated 23rd October, 1997, whereby temporary injunction against Ricardina restraining her from transferring or alienating any part of the southern half of the property was ordered. Prof. Maria Elsa moved Special Civil Suit No.1/96 on 2nd January, 1996, for permanent injunction against the Custodian of Evacuee Property, restraining him from releasing the property in favour of Ricardina. The trial Court granted ex parte injunction on the same day. The Custodian raised preliminary objection relating to the maintainability of the suit in view of Section 37 of the Act and after hearing both the parties, the said application was rejected by Order dated 19th February, 1996. This Order was challenged by the Custodian in C.R.A. NO.54/96 before this Court and the same was dismissed on 18th February, 1997. Prof. Maria Elsa was granted liberty to file objections before the Custodian within four weeks and it was noted that the Custodian would be free to proceed with the application of Ricardina for restoration, except for the title dispute relating to the suit property in case it so arose before him in the said proceedings. 8. By Order dated 16th September, 1997, the restoration application dated 11th May, 1995, came to be - 9 - disposed as not maintainable with liberty to Ricardina to file suitable application at the appropriate time. This Order was passed by the Custodian of Evacuee Property. It was noted by the Custodian that as dispute to the title of the property was pending in Special Civil Suit No.154/93, application for restoration was not maintainable. Ricardina submitted a fresh application for restoration on 9th January, 1998 for reconsideration of the Order dated 16th September, 1997. Notices were issued to all the concerned parties by the Custodian. Special Civil Suit No.49/98 came to be filed for declaration of this application as null and void, by Maria Elsa. The Custodian by his Order dated 21st April, 1999 allowed the said application and declared the southern half of the property as non-evacuee property for the purposes of the Act. An application was made on behalf of Ricardina on 28th April, 1999, for taking possession of the property. The same was allowed by Order dated 17th May, 1999 and the date for handing over the possession was fixed as 21st May, 1999. The possession panchanama was drawn on 21st May, 1999, confirming the handing over of possession. However, it is claimed by the State Government that the possession always remained with the Assistant Manager of evacuee property. 9. On 9th August, 1999, one Mr. Antonio Sequeira Coutinho Pereira, the present respondent no.3, - 10 - claiming to be the legal representative of Prof. Maria Elsa, submitted an application to the Custodian alleging that the earlier Order dated 21st April, 1999 declaring the southern half of the property as non-evacuee property, was bad in law and void ab initio. He, therefore, prayed to revoke the said Notification. Notice was issued to Ricardina in response to the said application and she claimed in her written reply that her application for restoration was considered by the Custodian strictly in keeping with the Order passed by this Court on 18th February, 1987 in C.R.A. No.54/96. However, by the impugned Order dated 14th February, 2000, the Government was pleased to declare the notification dated 21st April, 1999, as invalid, non est and null and void with immediate effect. This Order dated 14th February, 2000, was passed by the Government for the following reasons:- (a) The Custodian had no authority in law to re-consider/review his own order dated 16th September, 1997, rejecting the application dated 5th November, 1995 submitted by Smt. Ricardina Silva; and (b) When there was a title dispute pending before the competent court between the same parties, the - 11 - Custodian could not declare and issue the Notification dated 21st April, 1999. 10. It appears that while this petition was pending, Ricardina died on 22nd November, 2001, and, therefore, her legal representatives have been brought on record as petitioners. None of them are staying in Goa, or, for that matter, in India. As at present, from their addresses set out in the petition memo, it is clear that they are all presently residents of Portugal. All her children were born in Goa, but they are presently residents of Portugal. Prof. Maria Elsa died on 20th November, 1997, at the Government Medical College, Goa. The present respondent no.3 claims that by public will executed on 16th December, 1996, Prof. Maria Elsa has bequeathed all her moveable and immoveable property to him as he is the nephew and he has come on record as the plaintiff in Special Civil Suit No.154/93. 11. The following questions arise for our consideration in this petition:- (a) Whether the application dated 11th May, 1995, submitted by Ricardina for restoration was ever decided - 12 - under Section 15 of the Act; (b) Whether the Order dated 21st April, 1999, was passed without authority in law and was void ab initio; (c) Whether the impugned Order dated 14th February, 2000, suffers from any errors apparent on the face of the record; and (d) Whether respondent no.3 has any locus to contest the restoration application filed by Ricardina in respect of the southern half property that had gone to the share of Eurico, in the Inventory Proceedings No.957/1929 and the consent terms drawn on 20th June, 1930. 12. It would be necessary at this stage to deal with some of the provisions of the Act and the Rules framed thereunder. As per Section 2(aaa), "Custodian" means the Custodian appointed or deemed to be appointed under Section 4 and includes any Deputy or Assistant Custodian of evacuee property. Under Section 2(b), - 13 - "evacuee" means any person - (i) who on account of Liberation of Goa, Daman and Diu, leaves or has on or after the relevant date, left Goa, Daman and Diu, for any place outside India; or (ii) ....................................., or (iii) who, during anytime before or after the relevant date, has been residing in any place outside India, and who for that reason was or is unable to occupy, supervise or manage in person his property in Goa, Daman and Diu, or whose property has ceased to be occupied, supervised or managed by any person, or is being occupied, supervised or managed by an unauthorised person. 13. Under Clause (c) of Section 2, "evacuee property" means any property of an evacuee (whether held by him as owner, or as a trustee or as a beneficiary, or as a tenant or in any other capacity), and includes any property - (i) which has been obtained by any person from an evacuee after the relevant date, by any mode of transfer unless such transfer has been confirmed by the Custodian; or - 14 - (ii) which belongs to an intending evacuee and in respect of which a declaration is made under section 21. 14. Under Section 2(k) "relevant date" means the sixth day of December, 1961. Section 5 provides of declaration of evacuee property and Section 6 deals with vesting of the same in the Custodian, whereas Section 7 deals with the powers of Custodian to take possession of evacuee property vested in him. Section 15 deals with the procedure for restoration of evacuee property. Section 22 provides for appeals against the orders made under Section 5, Section 8 (2)(II), Section 18, Section 31 or Section 39 by the Custodian, to the Tribunal constituted under Section 22 A and the decision of the Tribunal shall be final. Under Section 37, the jurisdiction of the Civil Courts is barred in certain cases and Section 46 deals with rule-making powers. 15. The Goa, Daman and Diu Administration of Evacuee Property Rules, 1965, have been framed under Section 46 of the Act. Rule 14 deals with the procedure for restoration of property when an application is presented under Section 15 of the Act and Rule 15 deals with the conditions subject to which an order of restoration may be passed. It would be useful to reproduce the relevant provisions of Section 15 of the Act - 15 - and Rule 14 of the Rules. They read as under:- "S.15. S.15. S.15. Restoration of evacuee property Restoration of evacuee property Restoration of evacuee property - (1) Save as provided under section (3) and subject to such rules as may be made in this behalf, any evacuee or any person claiming to be an heir of an evacuee may apply to Government or to any person authorised by it in this behalf (hereinafter in this section referred to as the authorised person) that any evacuee property which has vested in the Custodian and to which the applicant would have been entitled if this Act were not in force, may be restored to him. (2) On receipt of an application under sub-section (1) Government or the authorized person, as the case may be, shall cause public notice thereof to be given in the prescribed manner, and after causing an inquiry into the claim to be held in such manner as may be prescribed, shall - (a) if satisfied - (i) that the conditions prescribed by rules made in this behalf have been satisfied, (ii) that the evacuee property is the property of the applicant, and (iii) that it is just or proper that the evacuee property should be restored to him, make an order restoring the property to the applicant, or (b) if not so satisfied, reject the application; Provided that where the application is rejected on the ground that the evacuee property is not the property of the applicant, the rejection of the application shall not prejudice the right of the applicant to establish his title to the property in a Civil Court, or - 16 - (c) if there is any doubt with respect to the title of the applicant to the property, refer him to a Civil Court for the determination of his title; Provided that no order for the restoration of any evacuee property shall be made under this sub-section unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof." "R.14 R.14 R.14 Procedure for restoration of Procedure for restoration of Procedure for restoration of property property property - - - (1) An application for restoration of evacuee property shall be made to the Government or to any person authorized by Government in this behalf. (2) The application shall contain the name of the person interested in the property sought to be restored and the facts on which the claim for restoration is based. (3) The application shall be verified in the same manner as a plaint under the Code of Civil Procedure, 1908. (4) Before any order is made on the application, the Government or the authorised person, as the case may be, shall cause an enquiry to be held through the Custodian or any other person. (5)(a) On receipt of the application, the Government or the authorized person, as the case may be, shall cause a notice to be given to the party or parties names in the application and any other person who may otherwise appear to be interested in the property or the proceedings. (b) A Public Notice of the application shall also be issued in a local daily or a weekly newspaper at the expense of the applicant." 16. Mr. Zaiwala, learned Senior Counsel appearing for the petitioners submitted that on rejection - 17 - of the restoration application dated 11th May, 1995, vide Order dated 16th September, 1997, passed by the Custodian of Evacuee Property, the petitioner Ricardina was at liberty to file suitable application at the proper time. On acquiring Indian Nationality on 21st April, 1993, she submitted a fresh application dated 9th January, 1998, for reconsideration of the earlier Order dated 16th September, 1997, by which the restoration application dated 11th May, 1995, was disposed of as not maintainable. The second application was submitted before the Custodian of Evacuee Property and it was allowed by the same Custodian of Evacuee Property on 21st April, 1999, without prejudice to any right that a person may claim or any court’s directions in the matter. Consequent to this Order possession of the subject property was also handed over to Ricardina on 21st May, 1999, pursuant to the Order dated 17th May, 1999, passed by the Custodian. There was no power vested with the State Government to review/recall or set aside the Order dated 21st April, 1999, passed by the Custodian purportedly invoking the review powers under the Act, more so, when the Act does not provide for any review of the Order passed by the Custodian. The Custodian himself is an officer appointed under Section 4 of the Act and once he had passed an order of restoration on 21st April, 1999, the said Order could not have been recalled or withdrawn by the State Government. It was submitted that all the applications for restoration are required to - 18 - be considered and decided by the Custodian, who is an authorized officer of the State Government. Reliance in this regard has been placed on the provisions of Section 15(1) of the Act and Rule 15(2) of the Rules of 1965, as well as the Order passed by this Court in C.R.A.No.54/96. The impugned Order does not state with clarity under what Section of the Act the State Government has set aside the Order dated 21st April, 1999 and such a power has been tried to be explained by the affidavit in reply, which is not permissible. Even otherwise, Section 44 of the Act does not empower the State Government to pass an order setting aside the order of restoration passed by the Custodian declaring the property as non-evacuee and handing over the possession to its owner. The learned Senior Counsel also urged that the impugned Order is in breach of the principles of natural justice and on that count alone the impugned Order is required to be quashed and set aside. 17. The respondent nos.1 and 2 have filed affidavits in reply and opposed the petition. It has