22 WP 326, 327 OF 2021.ODT

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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NOS. 326 & 327 OF 2021

WINSTON XAVIER AND 2 ORS.

…PETITIONERS

Versus

CYNTHIA SOUZA XAVIER BARRETO

AND 3 ORS.,

…RESPONDENTS

Mr. Terence Vaz, Advocate for the Petitioners.

Mr. A. Gomes Pereira, Advocate for the Respondents in Writ

Petition No. 326/2021.

Mr. Peter Fernandes, Advocate for the Respondents in Writ

Petition No. 327/2021.

CORAM:

MANISH PITALE, J.

DATED:

8^th February 2022.

P.C.:

1.

By these two Writ Petitions, the petitioners have

approached this Court challenging orders dated 25.02.2019,

passed by the Deputy Collector/Sub-Divisional Officer, Mapusa,

in proceedings for partition initiated under Section 61 of the

Goa, Daman and Diu Land Revenue Code, 1968.

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2.

In Writ Petition No. 327/2021, additionally, the petitioners

have challenged the subsequent order dated 26.03.2021, passed

by the Deputy Collector.

3.

The principal contention raised on behalf of the petitioners

in these Writ Petitions is that the Deputy Collector committed an

error in proceeding on the basis that no objection was raised with

regard to the partition, either by the petitioners or by any other

party, in the said proceedings. It is submitted that the replies

were on record before the Deputy Collector indicating that the

objections were raised, and that therefore, the impugned orders

deserve to be set aside on this ground itself. An attempt was also

made to contend that there was violation of principles of natural

justice and therefore, the Writ Petitions could certainly be

entertained by this Court.

4.

This Court had issued notices in these Writ Petitions by

recording the aforesaid contentions raised on behalf of the

petitioners.

5.

The respondents have entered their appearances and have

filed their replies, to which the petitioners have also filed their

rejoinder affidavits.

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6.

Mr. Vaz, learned Counsel appearing for the petitioners in

both these Writ Petitions reiterated the aforesaid contentions

when the notice was issued. By inviting attention of this Court to

the impugned orders dated 25.02.2019, it was submitted that the

Deputy Collector erred in proceeding on the basis that there was

no objection by the co-holder of the property in the prayer made

before the Deputy Collector. Additionally, in Writ Petition

327/2021, it was submitted that the matter had proceeded further

and that the subsequent report submitted by the Inspector of

Survey and Land Records (ISLR) was confirmed by the impugned

order dated 26.03.2021 and therefore, the Writ Petitions deserve

to be allowed.

7.

On the other hand, Mr. Gomes Pereira, learned Counsel

has appeared for the respondents in Writ Petition No. 326/2021

and Mr. Peter Fernandes, learned Counsel has appeared on behalf

of the respondents in Writ Petition No. 327/2021. Both the

Counsel submitted that the petitioners had an alternative remedy

of filing an Appeal under the provisions of the aforesaid Code and

that the petitioners were not justified in approaching this Court

in writ jurisdiction. It was further submitted that there was no

case made out for contending that there was violation of

principles of natural justice in order to claim that the Writ

Petitions were maintainable. It was submitted that the order was

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passed way back on 25.02.2019 and since the remedy of an

Appeal was available to the petitioners, writ jurisdiction could not

have been invoked. It was also submitted that the petitioners

were duly served and no case was made out to claim violation of

principles of natural justice. A perusal of the replies filed before

the Deputy Collector on behalf of the petitioners would show

that there was no objection specifically raised with regard to the

partition and all that was stated was that certain documents,

including copy of a plan, would