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1967 Supreme(Goa) 30
Goa High Court
R.S.BINDRA
Paciencia de Oliveira of Santa Cruz - Appellant
Versus
Angelina Filomena Dias of Santa Cruz - Respondent
Decided On : 12/13/1967
M.E. Rau and S.K. Kakodkar, for Petitioner; U.B. Surlikar, for Respondent No. 1.
The Tribunal erred in its interpretation of the Diploma, in allocating the burden of proof, in relying on irrelevant material, and in acting in an arbitrary and capricious manner, resulting in an error of law apparent on the face of the record.
Headnote:
MUNDCAR - EVICTION - JUST CAUSE - INTERPRETATION OF DIPLOMA NO. 1952 - ERROR OF LAW - JURISDICTION - WRIT OF CERTIORARI - ARTICLE 227 OF THE CONSTITUTION.
Fact of the Case:
The petitioner, Paciencia de Oliveira, a mundcar, challenged the orders of the Mamlatdar and the Administrative Tribunal of Goa, Daman and Diu, which directed her to demolish her house and restore vacant possession of the site to the respondent, Angelina Filomena Dias, the landlord, for the construction of her own house.
Finding of the Court:
1. The Tribunal erred in holding that the petitioner had no right to occupy the house because she was not paying any rent, as the Diploma No. 1952 (Diploma) clearly defines the respective rights and obligations of the mundcar and the landlord, and Article 5 of the Diploma grants a permanent right of residence to the mundcar. 2. The Tribunal erred in finding that the respondent had not chosen the new site for the septic tank with the intention of evicting the petitioner, as the respondent had explicitly stated in her application that she intended to evict the petitioner due to her attitude towards the landlord. 3. The Tribunal erred in placing the burden of proof on the petitioner to show that the new proposed construction of the respondent was incompatible with the existence of the petitioner's house, and in concluding that there was no expert evidence to support this claim, as the evidence indicated otherwise. 4. The Tribunal erred in relying on facts not presented in the pleadings or supported by evidence, and in adopting an arbitrary and capricious approach in its decision.
Issues: 1. Whether the Tribunal erred in interpreting the Diploma and in holding that the petitioner had no right to occupy the house. 2. Whether the Tribunal erred in finding that the respondent did not intend to evict the petitioner. 3. Whether the Tribunal erred in allocating the burden of proof and in concluding that there was no expert evidence to support the petitioner's claim. 4. Whether the Tribunal erred in relying on irrelevant material and in acting in an arbitrary and capricious manner.
Ratio Decidendi: 1. The Tribunal erred in its interpretation of the Diploma, as Article 5 clearly defines the rights and obligations of the mundcar and the landlord, and grants a permanent right of residence to the mundcar. The Tribunal's finding that the petitioner had no right to occupy the house because she was not paying rent is contrary to the provisions of the Diploma. 2. The Tribunal erred in finding that the respondent did not intend to evict the petitioner, as the respondent had explicitly stated in her application that she intended to evict the petitioner due to her attitude towards the landlord. This finding is not supported by the evidence and is an error of law. 3. The Tribunal erred in placing the burden of proof on the petitioner to show that the new proposed construction of the respondent was incompatible with the existence of the petitioner's house, and in concluding that there was no expert evidence to support this claim. The evidence indicated otherwise, and the Tribunal's allocation of the burden of proof was incorrect. 4. The Tribunal erred in relying on facts not presented in the pleadings or supported by evidence, and in adopting an arbitrary and capricious approach in its decision. This constitutes an error of law apparent on the face of the record.
Final Decision: The Court quashed the order of the Tribunal under Article 227 of the Constitution and remanded the case for fresh decision in light of the observations made in the order.
2. It is common ground between the parties that the petitioner Paciencia is mundcar of respondent no. 1 Angelina in respect of the house in dispute and the site underneath it. The house had been constructed by the petitioner's grand father-in-law almost sixty years ago at his own cost. The plot on which that house stands is known as 'Corna Batta'. No ground rent had to be paid by the ancestors of the petitioner in respect of the site on which the house stands. It was on 10th of February 1960 that respondent No. 1 made an application to the Mamlatdar stating that she wanted to construct a house on the property called 'Cornabatta' and that according to the plan sanctioned by the municipality the septic tank will have to be constructed at a place covered by the verandah of the house of the petitioner, and praying that the petitioner should be directed to demolish the relevant portion of her house as consequence. The petitioner by her written reply dated 13-5-1960 opposed the prayer made principally on the ground that the site chosen for the septic tank was too near a potable well in terms of the Sanitary Regulations.
3. The respondent No. 1, it appears, firstly controverted that stand of the petitioner but ultimately found force in it and so approached the municipality with a new plan or construction which met the objection raised by the petitioner. After that plan was sanctioned, the respondent No. 1 moved another application dated 16-9-1961 before the Mamlatdar praying that the petitioner be asked to vacate the whole of the house and to remove the material belonging to her as, according to the new plan, the whole of the area under the house of the petitioner was necessary for constructing her proposed new house. The Mamlatdar made the order prayed for by respondent no. 1 on 8th of January 1962. However, since this order was passed without calling upon the petitioner to show cause against the prayer made in the application dated 16-9-1961 of the respondent no. 1, the petitioner challenged the validity of the order by taking an appeal to the Tribunal. In the memorandum of appeal the petitioner had prayed for inspection of the spot before deciding the appeal. Consequently, the inspection was done on 26-3-1963 by one member of the Tribunal who was assisted in the matter by experts. Ultimately, by its order dated 27-8-1963 the Tribunal quashed the order of the Mamlatdar and remanded the case to him with the direction that he should dispose of the matter, after giving notice to the petitioner. On receipt of the notice from Mamlatdar the petitioner put in her written statement on 20th of November 1963, while respondent No. 1 filed her rejoinder on 12-3-1964. The Mamlatdar passed an order on 21-7-1965 whereby he directed the petitioner to demolish the house within thirty days.
4. The petitioner assailed the validity of Mamlatdar's order dated 21-7-1965 in an appeal filed with the Tribunal. The Tribunal, however, affirmed the order made by the Mamlatdar and so rejected the appeal of the petitioner by its order dated 4-3-1967. It is against this latter order that the present writ petition of Paciencia is direc
