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2022 Supreme(Bom) 444
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK, R.N. LADDHA, JJ.
Nagaraj Avaghan, Lecturer, Government Polytechnic - Appellant
Versus
State of Goa - Respondent
Stamp Number Main No.1606 of 2020 (Writ Petition)
Decided on : 31-01-2022
Advocate Appeared:
For the Appellant :Mr. M.B. Da Costa, Ms. Karishma Betquecar, Advocate
For the Respondent: Mr. Prashil Arolkar, Mr. Pravin Faldessai, Adv
Headnote:
Enemy Property Act, 1968 - Section 5 and 24 - Goa Land Revenue Code, 1968 - Section 103 - Property - Registered Sale Deed - Citizenship - Whether she was an Indian national and outcome of case was to be reported to Custodian in due course - Whether she, at any stage, gave up her Indian citizenship and acquired Pakistani citizenship – Held, There are no details as to when she is alleged to have migrated and, further, whether she, at any stage, gave up her Indian citizenship and acquired Pakistani citizenship - In any case, Court feel that such issues could not have been decided without even minimum compliance with principles of natural justice and fair play - To record such conclusions it was necessary to have noticed legal representatives or successors of such Leonildes because, ultimately, properties to which they succeeded are sought to be denied to them based on an order made almost 44 years from demise of said Leonildes - However, Court clarify that quashing of such orders will not preclude respondents from initiating fresh proceedings in terms of Enemy Property Act if they are satisfied that there exist any material or grounds for doing so - In short, Court grant respondent no.4 herein liberty as was granted in paragraph 45 of decision in Shane Dias (supra) - Based on decision of respondent no.4, even respondents nos.1, 2 & 3 are granted liberty to carry out mutation by following procedure provided in said Code and after complying with principles of natural justice and fair play.
JUDGMENT :
M.S. Sonak, J.
1. Heard Mr. M.B. Da Costa, learned Senior Advocate along with Ms. Karishma Betquecar for the petitioner. Mr. P. Arolkar learned Additional Government Advocate appears for respondents nos.1 to 3 and Mr. Pravin Faldessai learned Assistant Solicitor General of India appears for respondent no.4.
2. In our order dated 27.01.2021, we had made it clear that this petition will be disposed of finally at the stage of admission after pleadings are complete. The pleadings are indeed complete and, therefore, we proceed to issue Rule in this petition. The rule is made returnable forthwith at the request of and with the consent of the learned Counsel for the parties.
3. The challenge in this petition is to the following :
(a) The action of respondents nos.1, 2 & 3 carrying out correction or mutation in the survey records relating to the property under survey no.236/17, Assagao, Bardez, Goa. This correction/mutation has the effect of including the name of the Custodian of Enemy Property of India, either along with the petitioner or in the place of the petitioner;
(b) The order dated 08.10.2010, made by respondent no.4, in the purported exercise of powers under Section 5 and 24 of the Enemy Property Act, 1968 (the said Act);
4. The record bears out that by registered Sale Deed dated 15.06.2007, the petitioner purchased from Stephen Ignatius (respondent no.5) property admeasuring 750 square meters surveyed under no.236/17, Assagao, Bardez, Goa. Based on this Sale Deed, the mutation was carried out in the survey records on 10.10.2007. In terms of this mutation, the name of Stephen Ignatius was deleted and that of the petitioner included, after following the procedure prescribed under the Goa Land Revenue Code, 1968 (the said Code).
5. The petitioner has pleaded that sometime in the year 2020, the petitioner discovered that by an order made sometime in the year 2010, the survey authorities corrected/mutated the survey record by invoking the provisions of Section 103 of the Code and included in the survey record, the name of the Custodian of Enemy Property as against the property surveyed under no.236/17. The petitioner has pleaded that neither Stephen Ignatius nor the petitioner was served with any notice before effecting the alleged correction/mutation. The petitioner has pleaded that no opportunity whatsoever was granted to the petitioner before making this so-called correction/mutation. These averments have not been denied in the returns filed by the Respondents.
6. Mr. Prashil Arolkar, learned Additional Government Advocate, to a reply from the query of this Court, also submitted that there was no record of service of any notice to either Stephen Ignatius or the petitioner before the correction/mutation was made in terms of Section 103 of the Code.
7. Section 103 of the Code deals with the correction of clerical errors and reads thus:
103. Correction of clerical errors - The Collector may, at any time, correct or cause to be corrected any clerical errors and any errors which the parties interested admit to have been made in the record of rights or registers maintained under this Chapter or which a revenue officer may notice during the course of his inspection.
Provided that, when any error is noticed by a revenue officer during the course of his inspection, no such error shall be corrected unless a notice has been given to the parties and objections, if any, have been disposed of finally in accordance with the procedure relating to disputed entries.
8. In this case, there was no admission by the petitioner or Stephen Ignatius that the entry in the survey record in their favour was an error or a clerical error. In any case, the proviso to Section 103 of the Code states that when an error is noticed by a revenue officer during the course of his inspection, no such error shall be corrected unless notice has been given to the parties and objections, if any, have been disposed of finally in accordance with the procedure related to
