1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 214 OF 2008. Shri Rajaram Anant Amonkar, Major of age, businessman, residing near Sangam Lodge,Mala, Panaji-Goa. .... Petitioner. Versus 1. Smt. Jani Harishchandra Naik Khandeparkar, 2. Ms. Maya Naik Khandeparkar, 3. Ms. Savita Naik Khandeparkar, 4. Ms. Saila Naik Khandeparkar, 5. Mr. Pandurang Naik Khandeparkar, 6. Mrs. Usha Naik Khandeparkar all major of age, and residing at Fontainhas, Panaji – Goa. 7. The Joint Mamlatdar -III of Tiswadi, Panaji, Goa. 8. The Deputy Collector & S.D.O., Panaji, Goa. 9. The Revenue Secretary, Government of Goa Secretariat, Porvorim, Bardez, Goa. ... Respondents. Mr. Nigel Da Costa Frias, Advocate for the petitioner. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the respondent No. 1 to 6. 2 Mr. G. Shirodkar, Government Advocate for the respondent Nos. 7 to 9. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT : 28 TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT: 5 TH FEBRUARY,2009 . JUDGMENT : 1. Rule Returnable forthwith. Heard finally with consent of parties. This writ petition is filed against the order of Secretary revenue. 2. The facts giving rise to this writ petition, are as follows : The respondent No.1 had filed an application against one Jairam Neugi and others for purchasing a dwelling house under the Mundkars (Protection from Eviction) Act, 1975. The petitioner was issued a notice and was informed that the petitioner was joined as a party as an opponent to the said proceedings on the ground that the said property was purchased by him from the respondent No.1. The petitioner was required to file his objection to the said application. It was contended that the respondent No.1 was 3 registered as a mundkar of late Jairam Neugui in respect of House No.139 by order dated 08.12.1988. The petitioner then, contacted his Counsel and inspected the record. He applied for certified copy of the order dated 08.12.1988. On going through the said order, it was found that the heirs of the Jairam Neugui, had not contested the proceedings and they were ordered to proceed ex-parte. The Mamlatdar, therefore, ordered the respondent No.1 to be registered as mundkar in House No.139. This was solely on the evidence of the respondent No.1. The petitioner submits that he had purchased from the heirs of the late Jairam Neugui, a piece of land admeasuring 208 square metres which is 3 metres away from the outer wall of the house of the respondent No.1. It is contended that the respondent No.1 had, however, illegally extended an area of her plot. The petitioner purchased the said plot by sale deed dated 07.01.1988 and had paid the consideration. The petitioner then, filed an appeal against the order of the Mamlatdar before the Collector with an application for condonation of delay and an application for leave to appeal. The additional Collector by order dated 29.05.1997 allowed the appeal as well as the application for condonation of delay. He set aside the order of the Mamlatdar dated 08.12.1988 and directed to 4 hear the petitioner and pass a speaking order. Being aggrieved by that order of Additional Collector, a revision application was preferred before the Administrative Tribunal. The order of the Collector was challenged before the Administrative Tribunal, who confirmed the order of the Additional Collector. 3. A writ petition was preferred against that order bearing Writ Petition No.470/2005, which was also dismissed. A Letters Patent Appeal was also preferred, which came to be dismissed on 26.02.2007. The Mamlatdar to whom the proceedings were remanded, took up the matter for hearing before him and passed orders dated 15.06.2007 and 02.07.2007. The matter was posted for recording of evidence and holding fresh enquiry. The respondent Nos. 1 to 6 objected to recording of any further evidence on the ground that the Mamlatdar was not directed to record any fresh evidence in the matter. After hearing the parties, the Mamlatdar was pleased to pass an order on 02.07.2007 overruling the objection and permitting the petitioner to cross-examine the respondent No.1 and to lead evidence in the matter. Being aggrieved by that order, another revision was preferred before the Deputy Collector, who quashed the 5 order of the Mamlatdar and directed the Mamlatdar to hear the petitioner and at the most, permit him to lead evidence. The revision was preferred before the Administrative Tribunal by the present petitioner. The Administrative Tribunal was pleased to reject the revision as it held that it has no jurisdiction to entertain it. Hence, a revision was preferred before the Revenue Minister, who passed order directing the Mamlatdar to record the evidence of Rajaram and to give hearing and decide the issues. 4. The material question that needs to be decided in this petition is whether an order of remand passed by the Deputy Collector on 29.5.1997 envisages a fresh trial in as much as the petitioner should or should not be allowed to cross-examine the respondent No.1 before the Mamlatdar. The Mamlatdar has permitted the cross-examination of the respondent No.1 after the remand. 5. Shri Lotlikar, the learned Senior Counsel for the respondent, submits that the cross-examination of the respondent should not be allowed as that would amount to reopening of the proceedings as no fresh trial is ordered. He further submits that the petitioner cannot now cross-examine 6 the respondent as the petitioner's vendor was exparte and did not contest. He submits that the petitioner's vendor, once having chosen not to contest the petition, cannot get a higher right and hence, the prayer to cross-examine, could not have been granted by the Mamlatdar. 6. In the context, it would be necessary to look into the order of the Deputy Collector dated 29.05.1997. The Deputy Collector passed the following final order : Order “ Permission to file appeal is hereby granted. Delay has been condoned. The appeal dated 19.11.92 is hereby allowed. The order dated 8.12.88 is hereby set aside with a direction that the Appellant be heard in case No.MND/REG/2446/80 and after approaching the documents and evidence on record pass a speaking order. No order as to costs. Parties be informed. Given under my hand and seal of the court on this the 29th day of May 1997.” 7. This order has to be understood in the context of the reasons given by the Deputy Collector which read as follows : 7 “ It is not known how a person can claim for mundkarship as well as a tenant. The Mamlatdar in his judgment has not spelt out anything but only went on the statement of the Respondent No.1 and passed an ex-parte order. Nowhere it is denied that the land has been purchased by the Appellant and therefore as a natural justice demands, opportunity has to be given to the Appellant in the mundkar case registration itself. The learned counsel for the Respondent has contended that the land has been demarcated and confirmed when the Appellant was also present and said that they are the mundkars. But in the present case the documents has more weightage than the oral argument. In the circumstances this is a fact that the present Appellant has to be given opportunity and deserves remand of the case. I have gone through the entire evidence on record and have come to the conclusion that the appeal deserves to be allowed and accordingly I pass the following order.” 8. The learned Deputy Collector says that natural justice demands that an opportunity has to be given to the appellant in the mundkar case. The High Court too while deciding the Writ Petition No.470/2005, has observed as follows : “6. In my considered opinion, the impugned order merely directs a remand and, hence, does 8 not merit any interference. It is pertinent to note that admittedly in January, 1982, an ex-parte injunction order was obtained by the petitioners against the respondents in the proceedings in which the landlord was also a party. On 31/1/1982, the said injunction order was confirmed after hearing both sides. In the proceedings initiated for registration of petitioner 1 as Mundcar in the year 1980, the 1st respondent was not made a party. It appears that in the year 1992, the petitioners have applied for purchase certificate. In that application, however, the 1st respondent has been made a party. The 1st respondent claims to have purchased the property during the pendency of the registration proceedings. In such fact situation, it is necessary for the court to adjudicate his claim. In such circumstances, if the Additional Collector remands the matter and the revisional court dismisses the revision filed against his order, in my opinion, in the writ jurisdiction those orders should not be interfered with. It is not necessary for me to state that all observations made by the Additional Collector or the revisional court are merely prima facie observations and after remand the court seized of the matter is bound to hear the parties afresh and give its decision in accordance with law uninfluenced by any observations made by the courts below. The parties will be at liberty to raise all contentions before the Additional Collector. This court has also not opined on the 9 right of the parties. In the circumstances, I find no merit in the petition. Petition dismissed.” 9. The Deputy Collector's intention was certainly to give an opportunity to the appellant to contest the proceedings in view of the principles of natural justice. The High Court in the above observation, has interpreted the order of the Deputy Collector to mean a trial afresh as the word used is afresh. The word afresh means the case has to be completely reopened and it must include the right to cross-examine the witness already examined. 10. Even otherwise, the matter has been remanded to the Mamlatdar to redecide the case. The proceedings before the Mamlatdar could be said to be quasi judicial. He is, therefore, supposed to make an enquiry which includes the examination of witness. If the witnesses of the respondent, are not allowed to be cross-examined even after remand, their evidence would go unchallenged and the very purpose of remanding the case and allowing participation of petitioner, would be defeated. The final order of the Deputy Collector, may not be very happily worded but if the contents of the order are read, it is clear that he wanted to give an opportunity to the petitioner in the mundkarship 10 proceedings. The principles of natural justice certainly demand that the petitioner is allowed to cross-examine the respondent and his witnesses and tender his own oral and documentary evidence. The Supreme Court in Union of India V. T.R. Varma reported in AIR 1957 SC 882, observes as follows : “ The evidence Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.” 11 11. Thus, the law is well settled that principles of natural justice envisages a right to cross-examine also. 12. In the result, the orders of the Deputy Collector dated 17.10.2007, Administrative Tribunal dated 30.11.2007 and the order dated 21.02.2008 are set aside and the orders of the Mamlatdar dated 15.06.2007 and 02.07.2007 are restored. 13. The learned counsel for the respondent No.1 submitted that the respondent no.1 is not in a position to appear before the Court at all. He has submitted that if she is not able to appear before the Court for subjecting herself for cross examination, the respondent no.1 may be allowed to examine any other person. Considering the fact that the respondent no.1, who is unable to move about and even depose, I see no difficulty in allowing some other witness on behalf of the respondent no.1. The Trial Court shall allow the respondent no.1 to examine any other person. The Trial Court shall also consider whether the evidence of the respondent no.1 should or should not be considered since she has not been subjected to cross examination. In any case, 12 this Court has also observed that the matter be remanded for fresh trial. The respondent no.1 will be entitled to examine any other witness. The Trial Court is directed to dispose of the matter within a period of two months positively. Rule is made absolute. C. L. PANGARKAR, J. SMA