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2010(5) ALL MR 608
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
A. S. OKA & F. M. REIS, JJ.
Pilerne Citizens Forum
Versus
State of Goa & Ors.
Writ Petition No.294 of 2008 WITH Suo Motu Writ Petition No.1 of 2008
Decided on : 5th August, 2010.
Goa, Daman and Diu Agricultural Tenancy Act, 1964 - Sections 7, 18-A, 55 and 58 - Goa Land Use (Regulation) Act, 1991, Section 2 - Jurisdiction of Court - Suo motu writ petition - On basis of alleged illegal sale of land held by communidade to builders in settlement with alleged tenants - Contention, in breach of mandatory provisions of Act, 1964, longer tracts of land sold to builders - Held - Jurisdiction to decide whether applicant is a tenant and whether a land in being used for agricultural purpose, vests with Mamlatdar - Section 2 of Act 1991 permit communidade to prosecute their application before Administrative Tribunal - Purchaser or communidade can also apply to seek a declaration against tenancy granted in favour of tenant - Mamlatdar as Competent Authority may decide it on merit - Order of Administrative Tribunal granting permission for mutation of tenant’s name, consent decree etc. set aside - Matter remanded to Mamlatdar - Petition disposed of. - Section 2 of the Land Use Act has been given overriding effect over the provisions of not only the Land Revenue Code but also for the provisions of Town Planning Act. Once the land vests in a tenant under the Tenancy Act, no person can use the said land for any purpose other than the agricultural use. The Court cannot be a silent spectator to the exercise of jurisdiction by the Civil Court and by the Administrative Tribunal, which was not vested in them. The Court cannot allow the provisions of beneficial legislations being circumvented in this fashion. The order of the Administrative Tribunal sanctioning the compromise and the consent decree of the Civil Court are without jurisdiction and non est. Secondly, the order of the disposal of the Revision Application No. 24/2001 on the basis of such compromise is also null and void. The aforesaid two orders and the decree of the Civil Court will have to be ignored. It is contended before Court that there is no specific challenge in the writ petition to the said orders and the decree. However, there is a prayer for transferring the land to the Government in accordance with the provisions of the Tenancy Act on account of illegal transfer by the tenant. Moreover, the issue of legality and validity of the said orders very much arises in the suo motu petition. As stated earlier, the Court cannot permit the parties to defeat the provisions of law by adopting such modus operandi and to use the said lands for non-agricultural purposes which could have been lawfully used only for agriculture. In the case of Balvant N. Viswamitra v. Yadav Sadashiu Mule, 2004 DGLS (soft) 495 : (2004) 8 SCC 706, the Apex Court held thus :
"In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a Court lacks inherent jurisdiction in passing a decree or m an order, a decree or order passed by such Court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the Court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.
10. Five decades ago, in Kiran Singh v. Chaman Paswan, 1954 DGLS (soft) 65 : (1955) 1 SCR 117, this Court declared : (SCR p. 121)
"It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings A defect of jurisdiction,... strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties." (emphasis added)
Thus, after holding that the order passed by the Administrative Tribunal granting permission to compromise, the order passed by the Administrative Tribunal disposing of the Revision Application and the decree of the Civil Court in terms of the compromise are void on account of inherent lack of jurisdiction, the said orders and decree cannot be allowed to be acted upon. However, the issue regarding tenancy will have to be adjudicated upon. A Revision Application challenging the order and purchase certificate granted by the Mamalatdar was filed by the Communidade. As the order passed therein on the basis of compromise is without jurisdiction, Court will have to permit the Communidade to prosecute the Revision Application. The purchasers are entitled to apply to the Administrative Tribunal for impleading themselves as parties to the Revision Application. The purchasers or Communidade can also apply for negative declaration as against the said Hadfadkar and Nazareth. Court make it clear that the Revisional Authority or the Mamlatdar as the case may be, will decide the proceedings on its own merits without being influenced by any observations made in this order in as much as the Court has not dealt with merits of the claim of tenancy. The consent decree passed in the civil suit is also a nullity. Therefore, the civil suit can be prosecuted further. The civil suit filed by the Communidade will remain stayed till the disposal of the proceedings under the Tenancy Act. It is obvious that none of the purchasers as well as Hadfadkar and Nazareth will be entitled to, proceed with non-agricultural use of the land surveyed under Survey No. 212/1 and even the Communidade cannot put the land surveyed under Survey No. 211/1 to non-agricultural use. Needless to add that if the authorities under Tenancy Act hold that there is no basis for claim of tenancy of Hadfadkar and Nazareth, the legal consequence will follow.
Now, turning to the controversy in suo motu writ petition as regards the grant of lease in favour of the M/s. Tahira Computers Pvt. Ltd., we have perused the reply of M/s. Tahira Computers. An application was made by the said M/s. Tahira Computers to Governor of Goa to obtain land bearing Survey No. 90/1 (part) on aforamento basis for industrial purpose. There was a public notice published in the Gazette of the said application. There was a public notice of extraordinary meeting of the Communidade published in the Official Gazette. After following the procedure, the Government granted approval for grant of land admeasuring 35,000 square metres bearing Survey No. 90/1 to the said Tahira Computers. Annual lease amount of Rs. 2,75,625 has been fixed. The Government granted permission to the Communidade to grant the said land to M/s. Tahira Computers without formality of auction for industrial purpose in terms of Article 334-A of the Code subject to various conditions. Court finds nothing illegal about allotment made in to the M/s. Tahira Computers.
Hence, Court passes the following order :
"(i) We hold that the order dated 1st August, 2006 passed by the Administrative Tribunal, the con sent decree dated 16th November, 2006 passed by the Civil Court in Regular Civil Suit No. 259/1998/A and the order of the Administrative Tribunal on Tenancy Revision Application No. 24/2001 disposing of the Revision Application are without jurisdiction and null and void.
(ii) We direct the Administrative Tribunal to decide the Revision Application No. 24/2001 in accordance with law. We permit the 18th and 19th respondents as well as 25th respondent to apply for being made parties to the said revision application.
(iii) We permit the parties to apply for a negative declaration of tenancy against the said Hadfadkar and Nazareth in respect of both the lands surveyed under Survey No. 211/1 and 212/1.
(iv) We direct that the Revision Application shall be decided in accordance with law as expeditiously as possible and within a period of four months from today.
(v) We direct that the revision application as well as the proceedings which may be filed by other respondents shall be decided by the authorities on its own merit.
(vi) We clarify that we have not recorded any finding on the claims of the tenancy set up by the said Hadfadkar or Nazareth.
(vii) We direct that Regular Civil Suit No. 259/ 1998/A will remain stayed till the proceedings under the Tenancy Act are disposed of.
(viii) We restrain the 4th to 25th respondents from using both the lands in question for any non-agricultural use till the disposal of the proceedings under the Tenancy Act.
(ix) We make it clear that in the event the tenancy claim of Hadfadkar and Nazareth is finally negatived, the restriction imposed by this Court will not operate and non-agricultural use can be permitted subject to previsions of law. If the tenancy claim is upheld, the action in accordance with the Tenancy Act will follow.
(x) We hold that there is no illegality as regards the transfer of the land in favour of the M/s. Tahira Computers.
(xi) We dispose of the writ petitions accordingly.
A. S. OKA, J.:- The issues involved in these two petitions are common and hence the same are taken up together for the final hearing. The Suo Motu Writ Petition No.l/2008 is on the basis of a newspaper report. The newspaper report was published in daily 'Herald'. The newspaper report was regarding the alleged illegal sale of the land held by Communidade of Pi1erne (hereinafter referred to as 'the said Communidade') to builders after entering into compromise with builders. The Writ Petition No.294/2008 is filed in public interest challenging the alienation made by the said Communidade. The contention in short is that in breach of mandatory provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as 'the Tenancy Act') large tracts of land held by the said Communidade have been sold to builders after entering into settlement with the alleged tenants. It is alleged that Section 2 of the Goa Land Use (Regulation) Act, 1991 (hereinafter referred to as 'the Land Use Act') which prevents the use of agricultural land vesting in a tenant under the provisions of the Tenancy Act for any other purpose than the agriculture has been completely defeated.
FACTS OF THE CASE
2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. The lands surveyed under Survey No.21l/1 admeasuring 95925 square meters and the land bearing Survey No.212/l admeasuring 104825 square meters were held by the said Communidade. In the revenue record (Form Nos.I and XIV), the name of one Krishna Bha1chandra Hadfadkar (hereinafter referred to as "the said Hadfalkar") appears as a tenant in respect of both the lands. The 7 to 17 respondents are the legal representatives of the said Hadfadkar. The said Hadfadkar was declared as a deemed purchaser under provisions of Section 18-A of the Tenancy Act in respect of both the lands. Notice under Section 18-C of the Tenancy Act dated 5th February, 1993 was issued by the Mamlatdar and was published in Government Gazette dated 4th March, 1993. On 7th March, 1993, the Mamlatdar passed an order fixing the purchase price. On 30th August, 1993, the Mamlatdar issued a purchase certificate to the said Hadfadkar in respect of both the lands. The Mamlatdar issued a notice under Rule 34 of Agricultural Tenancy Act (Revenue Survey and Record of Rights) Rules, 1967 giving notice of mutation to be made in favour of the said Hadfadkar in the record of rights. The said Communidade (the 4th respondent in W.P.No.294/2008) submitted objections. At the time of hearing before the Mamlatdar, it was contended by the Communidade that the order of purchase has been obtained by the said Hadfadkar by playing fraud and there was no declaration of tenancy made under Section 7 of the Tenancy Act. However, the Mamlatdar passed an order on 17th October, 1997 and allowed the mutation. The Communidade preferred an appeal before the Deputy Collector for challenging the order of Mamlatdar. Another appeal was preferred by the Communidade in the year 1998 for challenging the purchase certificate dated 30th August, 1993 issued by the Mamlatdar in favour of the said Hadfadkar. In both the appeals, it appears that the stay of the impugned order was granted by the Deputy Collector.
3. On 30th March, 1998, the said communidade filed a suit in the Court of Civil judge, Senior Division at Mapusa for declaration hat the Survey Authorities under the Land Revenue Code have wrongly recorded the name of the first defendant therein (the said Hadfadkar) as a tenant. A prayer for perpetual injunction was made in the said suit. The said Hadfadkar filed the written statement in the said suit contending that the Civil Court had no jurisdiction to entertain and try the suit in view of the provisions of the Tenancy Act in as much as the issue of tenancy can be decided only by the Mamlatdar. The said Hadfadkar contended that he was a tenant
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