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Bombay High Court · body

2012 DIGILAW 1909 (BOM)

Shakina Bi v. Anandrao G. S. Kenkre

2012-10-05

F.M.REIS

body2012
Judgment Heard Shri D. Pangam, learned counsel appearing for the petitioners and Shri C.A. Coutinho, learned Counsel appearing for the respondents. 2. The above petition challenges the judgment passed by the Development Commissioner/Secretary (Revenue) dated 3/11/2008 whereby an application dated 15/10/2003 filed by the respondents was upheld and the order dated 10/11/1986 passed by the learned Aval Karkun attached to the office of the Mamlatdar of Sanguem in case No.D.C. No.182/Cotarlim and Order dated 16/09/1993 passed by the learned Deputy Collector in case No.LRC/APPL/208/AC dated 24/06/2003 passed by the Additional Collector II in case No.19-93-LRC/2nd/APL/AC dated 24/06/2003 was set aside. The names of the petitioners were ordered to be deleted from the Record of Rights and the name of the deceased heir of the respondents namely Kashinath Shaba Sinai Salelkar was directed to be included in the Record of Rights in respect of survey no.6/0 of the village of Cotarlim in Sanguem Taluka. 3. Shri D. Pangam, learned Counsel appearing for the petitioners has assailed the impugned judgment essentially on the ground that initially the application filed by the respondents dated 10/11/986 came to be dismissed for default during the course of the inquiry before the Aval Karkun. The learned Counsel further pointed out that the order dismissing the application for default was challenged before the learned Deputy Collector by the respondents which came to be dismissed as the learned Deputy Collector came to the conclusion that the learned Aval Karkun was justified in dismissing the application for default.. The learned Counsel further pointed out that the respondents preferred an appeal before the learned Additional Collector which appeal came to be rejected by judgment dated 24/06/2003. The respondents thereafter preferred a Land Revenue Revision No.20/2003 before the Revenue Secretary which came to be allowed and ultimately the reliefs sought in the original application were allowed and the names of the petitioners were directed to be deleted. The learned Counsel further pointed out that the Revenue Secretary has exceeded its jurisdiction as according to him the only matter which was under consideration was as to whether the learned Aval Karkun was justified to dismiss the application field by the respondents for default. The learned Counsel further pointed out that the Revenue Secretary has exceeded its jurisdiction as according to him the only matter which was under consideration was as to whether the learned Aval Karkun was justified to dismiss the application field by the respondents for default. The learned Counsel further pointed out that the question of going into the merits of the dispute would not arise at this stage as the application was dismissed for default and the inquiry was in progress and petitioners had not led any evidence in such inquiry. The learned Counsel further pointed out that at the most the Revenue Secretary would have set aside the order dismissing the application for default and remand the matter to learned Mamlatdar of Records of Rights to proceed with the inquiry in accordance with law. The learned Counsel has taken me through the impugned judgment and pointed out that it cannot be sustained and deserves to be quashed and set aside. 4. On the other hand, Shri C.A. Coutinho, learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel has pointed out that the impugned judgment has been passed to advance the cause of justice as according to him the learned Aval Karkun has erroneously dismissed the application of the petitioners despite of the fact that the respondents have adduced evidence to disclose that on the relevant date they were sick. The learned Counsel further pointed out that the medical evidence on record justifies that the order dismissing the application for default deserves to be quashed and set aside. With regard to the contention of Shri Pangam, learned Counsel appearing for the petitioner that the inquiry had not been completed, Shri C.A. Coutinho fairly states that in fact the Revenue Secretary ought to have remanded the matter to the learned Aval Karkune to proceed with the inquiry and decide the application filed by the respondents after giving an opportunity to the petitioners to lead their evidence if they so desires in accordance with law. The learned Counsel further pointed out that considering that the impugned judgment is passed to advance the cause of justice, the question of any interference in the present proceedings would not arise. 5. I have considered the submissions of the learned Counsel appearing for the respective parties and have also gone through the records. The learned Counsel further pointed out that considering that the impugned judgment is passed to advance the cause of justice, the question of any interference in the present proceedings would not arise. 5. I have considered the submissions of the learned Counsel appearing for the respective parties and have also gone through the records. Shri D. Pangam, learned counsel appearing for the petitioners is justified to contend that the Revenue Secretary was not justified to go into the merits of the dispute as well as pass the impugned judgment as the merits of the rival claims were not adjudicated by the Authorities below. 6. Be that as it may taking note of the findings of the Revenue Secretary to the effect that the Authorities below had decided the matter without giving an opportunity to the respondents to lead evidence, I find that the impugned judgment of the Revenue Secretary to the extent that it sets aside the judgments passed by the Authorities below namely the Aval Karkun, the Deputy Collector and the Additional Collector are justified in the facts and circumstances of the case. It is not in dispute that in support of their contention that there was justification by the respondents for no appearance on the relevant date a medical certificate was produced by the respondents. Considering the said material the Authorities below were not justified to dismiss the application filed by the respondents for default. No doubt considering the inconvenience caused to the petitioner on account of the negligence on the part of the respondents to remain present on the relevant date and challenge such order before the superior Authorities the petitioners are to be compensated with costs by the respondents. Such costs are quantified at Rs.7,500/-. 7. Considering the contentions of the learned Counsel appearing for both the parties and in view of the fact that the original application filed by the respondents was dismissed for default, at the stage, when the evidence of the respondents was in progress in the inquiry which was going on before the learned Aval Karkun, I deem it appropriate that the impugned judgment of the Revenue Secretary deserves to be modified and the matter be remanded to the learned Aval Karkun to proceed to decide the application filed by the respondents from the stage at which the proceedings were dismissed for default in accordance with law. Subject to the above, I find that the rule is to be disposed of in the above terms. 8. In view of the above, I pass the following order: (i) The impugned judgment dated 3/11/2008 is modified to the extent that the names of the petitioners shall be deleted from the Record of Rights and the name of the deceased heirs of the respondents viz. Kashinath Shaba Sinai Salelkar shall be included in the Record of Rights Surveyed under No.6/0 of village of Cotarlim in Sanguem Taluka, is set aside. (ii) The learned Aval Karkun is directed to decide the application dated 25/04/1981 in case D.C. No.182/Cotarlim in the light of the observations made herein above in a accordance with law subject to the respondents paying costs of Rs.7,500/-to the petitioners as condition precedent. (iii) Rule is made absolute in the above terms. (iv) The petition stands disposed of accordingly with no order as to costs. (v) The parties are directed to appear before the concerned Authorities before the Office of the Mamlatdar of Record of Rights, Borda, Margao Goa, on 10/12/2012 at 3.00 p.m.