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2015 DIGILAW 2241 (BOM)

Quiteria Fernandes v. State of Goa

2015-09-28

C.V.BHADANG

body2015
JUDGMENT: 1. Heard. Admit. Ms. P. Kamat, learned Additional Government Advocate waives service for the respondents. 2. By this appeal, the appellants/plaintiffs are challenging the order dated 5/9/2014 (below application Exhibit 13) passed by the learned District Judge, South Goa, Margao in Civil Suit No.7/2014. By the impugned order the application (Exhibit 13) filed by the respondents under Order 7, Rule 11 of the Code of Civil Procedure has been allowed thereby rejecting the plaint as being barred by limitation as also the under the provisions of the Land Acquisition Act 1894, ( The Act of 1894, for short). 3. The brief facts necessary for the disposal of the appeal may be stated thus:- That the appellants filed Civil suit no.7/2014 against the respondents for declaration that the suit property, namely, land admeasuring 2600 square metres bearing Chalta No.32 P.T Sheet No.65 of Margao city is not acquired and that the purported acquisition and taking over possession of the suit property is fraudulent, nullity and is void ab-initio. The appellants also sought permanent injunction restraining the respondents from taking over the possession of the suit property or dispossessing the appellants in any manner over the purported acquisition. The appellants also sought permanent injunction restraining the respondents or anybody on their behalf from entering the suit property. 4. As per the case made out in the plaint, on 21/6/1979, Agustinho Crasto, son of Jose Sebastiao Crasto purchased the property known as “Bondel”admeasuring 2600 sq.mtrs situated within the municipal limits of Margao City, surveyed under Chalta no.32 of P.T.S No.65, more particularly described in para 3 of the plaint. It was contended that Agustino Crasto expired on 26/8/1998 and was survived by his sole heir, son Jose Crasto married to Quiteira Fernandes. The said Jose Crasto son of Agustino Crasto also expired on 26/9/2010 and is survived by the appellant being his spouse as the moiety holder and his children as his heirs. It was contended that the appellant no.2, Rosario Crasto was conducting a licensed business of nursery (sale of ornamental plants) in the property under the name and style of M/s. Crasto Nursery w.e.f 15/10/2003, which business continues to operate till date. 5. It was contended that the appellant no.2, Rosario Crasto was conducting a licensed business of nursery (sale of ornamental plants) in the property under the name and style of M/s. Crasto Nursery w.e.f 15/10/2003, which business continues to operate till date. 5. It was the material case that some time on 20/8/2008, some persons claiming to be officials of the Goa State Urban Development Agency (GSUDA) came to the property and attempted to take possession of the same on the ground that the same is acquired by the (GSUDA). Late Jose Crasto resisted the attempt, visited the office of the GSUDA (Respondent no.2) which then made available to late Jose Crasto a certificate dated 28/6/2004 under section 18 of the Act of 1894 purportedly to be a document, certifying the taking over of the possession of the suit property by GSUDA. From the said certificate it is seen from the entry at serial no.41 that the property bearing survey no.65/32 of village (Margao) admeasuring 2099 sq.metres was taken over by the Government and vested in the Government free from all encumbrances. According to the appellants, none of the officials from any of the authorities had visited the site or taken possession of the same and the certificate dated 28/6/2004 in so far as it relates to the suit property was fraudulent. From the records of GSUDA the appellants also learnt of a Notification dated 12/12/2002 published in the Official Gazette sub section 4 of section 17 of the Act of 1894. It was contended that at no point of time the appellants or their predecessors, were ever notified of any acquisition proceedings. It was contended that Form D of the Goa Land Revenue (City Survey) Rules, namely the property card of Margao city clearly indicated the name Jose Sebastiao Crasto as the title holder. It was contended that the notification under the Act of 1894, the certificate of possession, to the extent it relates to the suit property was non est, fraudulent void and not binding on the appellants. On 20/8/2008, late Jose Crasto made a representation to the Chairman of GSUDA and the Collector of South Margao informing about the error and requesting to take action and not to act on the purported land acquisition as it does not pertain to the property in dispute. On 20/8/2008, late Jose Crasto made a representation to the Chairman of GSUDA and the Collector of South Margao informing about the error and requesting to take action and not to act on the purported land acquisition as it does not pertain to the property in dispute. It was contended that neither the plaintiffs nor late Jose Crasto received any communication or reply and they were thus under impression that the representation has been favorably considered and bonafidely believed that the concerned officers have taken corrective measures in the matter. 6. On 29/4/2013, the appellant no.2 received a notice from the Director of Agriculture about expiry of the licence to conduct the business of the nursery and asking the appellant no.2 to get the licence renewed by 31/5/2013. Accordingly an application was made for renewal of the licence wherein he was ultimately informed that the application for renewal cannot be considered as there was an objection from the office of the Collector South Goa. Thus, according to the appellants the cause of action to file the suit arose on 1/5/2013 when the respondents raised an objection refusing to consider the application for renewal of the licence to conduct the nursery business, on the allegation that the land was acquired. The suit eventually came to be filed on 6/3/2014. 7. The respondents filed an application (Exhibit 13) under Order 7 Rule 11 of C.P.C for rejection of the plaint on the ground that the same is barred by the provisions of the Act of 1894 and also the Limitation Act. It was also contended that the suit deserves to be dismissed for want of disclosure of cause of action. 8. The application was resisted on behalf of the appellants. It was contended that in view of the fact that the appellant was seeking a declaration that the purported acquisition was fraudulent and as such, was void ab initio and a nullity, there was no bar in the statute i.e. The Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Re-Settlement Act, 2013, (Act of 2013, for short), to entertain the suit. In short, it was contented that the law would not preclude a challenge in the suit if the challenge is based on fraud. In short, it was contented that the law would not preclude a challenge in the suit if the challenge is based on fraud. In so far as the challenge on the ground of the suit being barred by limitation is concerned, it was contended that it being a mixed question of law and fact, the appellants could not be non suited at the threshold. It was contended that the cause of action accrued only when the authorities refused to renew the licence on the ground that the property is acquired. This was sometime on or about 1/5/2013 and as such, the suit is within limitation. 9. The learned Trial Court by the impugned order upheld both the contentions raised on behalf of the respondents, namely, the suit being barred under the provisions of Land Acquisition Act as also being barred by the Limitation Act and while allowing the application rejected the plaint. Feeling aggrieved, the appellants are before this Court. 10. I have heard Mr. Mendes, the learned counsel for the appellants and Mrs. P. Kamat, the learned Additional Government Advocate for the respondents no.1 and 2. With the assistance of the learned counsel for the parties, I have perused the recordas also the impugned order. 11. It is submitted by Mr. Mendes, the learned counsel for the appellants that the property card (Form No. D) of Margao City records the name of late Jose Sebastiao Crasto as the owner of the property. It is submitted that the property was never owned or recorded in the name of Comunidade of Margao from which the property is shown to be acquired. It is submitted that this itself would clearly show that the entire acquisition proceedings were fraudulent and were vitiated. The learned counsel was at pains to point out that by judgment dated 20/6/2003 passed by the learned Inspector of Survey and Land Records, City Survey, Margao in Case No.33/2003 the application dated 27/2/2003 filed by Shri Jose Sebastiao Crasto to confirm that the plot (A) of the property known as “Bandel” surveyed under Chalta No.32 of P.T.S No.65 and Chalta No.4 of P.T. Sheet No.66 of Margao admeasuring an area of 2600 sq.mtrs in his name was allowed. It was submitted that the Comunidade of Margao was the respondent no.1 in those proceedings and by the order dated 20/6/2003, Chalta No.32 of P.T. Sheet No.65 of Margao City admeasuring 2600 sq.mtrs was confirmed in the name of Jose Sebastiao Crasto and the name of Comunidade of Margao was deleted from the record. It was next submitted that under the Notification dated 12/12/2002, in the Schedule, the property bearing survey no.65/32 although shown to be belonging to the Comunidade of Margao, the area shown was 3969 sq.mtrs. It was thus submitted that even on the basis of discrepancy in the area it would be clear that the property which is subject matter of dispute was never acquired. It was submitted that the certificate only shows that an area admeasuring 2099 sq.mtres was acquired and taken possession of and in that event, in any case, the remaining area (from out of 2600 sq.mtrs) would continue to belong to the appellant. It is submitted that the decision in the case of Girish Vyas & Anr. Vs. State of Maharashtra & Ors., reported in AIR 2012 Supreme Court 2043, on which reliance is placed by the learned trial Court was distinguishable on facts, as in that case the suit was filed placing reliance on a Will (Exhibit P1) executed by one Sunder Singh. 12. The learned counsel has thereafter referred to the observations in paras 15 and 17 of the impugned order, in order to submit that the Trial Court had also come to the conclusion that the remedy which was available to the appellants in such a situation was by filing an appropriate suit for declaration to the effect that they are the owners of the property. It was submitted that once the Trial Court had come to such a conclusion, it ought to have seen that the instant suit was in the very same nature. The learned counsel has also taken exception to the observation of the learned Trial Court in para 11 of the impugned order saying that the appellants are challenging the Notification under Section 4 of the Act of 1894. It was submitted that the suit was not challenging the Notification under Section 4 but only the land acquisition proceedings to the extent of 2099 sq.metres of area from out of the property surveyed under survey no.65/32 of Margao. It was submitted that the suit was not challenging the Notification under Section 4 but only the land acquisition proceedings to the extent of 2099 sq.metres of area from out of the property surveyed under survey no.65/32 of Margao. The learned counsel has placed reliance on the decision of this Court in the case of Comunidade of Bambolim Vs. Manguesh Betu Kankonkar reported in 2001 (Supp.) Bom. C.R. 99. 13. In so far as the ground of limitation is concerned, it was submitted that after August 2008, the appellants had submitted a representation and had heard nothing in respect thereof and thus, were justifiably under the bonafide impression that the representation has found favour and corrective action is taken. It was submitted that at the most this would be a case of recurring cause of action and the cause of action recurred when in the year 2013 the authorities refused to renew the nursery licence on the ground of the acquisition of the land. It was submitted that in either case this would be a question which would require determination of disputed questions of fact and law and thus, the appellants could not have been non suited at the threshold. 14. On the contrary, it is submitted by Ms. Kamat, the learned Additional Government Advocate that the order dated 20/6/2003 by the Inspector of Survey and Land Records is subsequent to the Notification under Section 4 of the Act of 1894, which is dated 28/11/2002 and for the matter of that even the Notification under sub section 4 of Section 17 of the Act, which is dated 12/12/2002. It was thus submitted that on the date of the Notification under section 4 and even on the date of the Notification under sub section 4 of section 17, the land was standing in the name of the Comunidade of Margao and thus there was no occasion to issue notice to the appellants. It is submitted that the appellants cannot take the advantage of the order passed by the Inspector of Land Survey. The learned Additional Government Advocate has then referred to the representation dated 21/8/2008 sent by late Jose Sebastiao Crasto to show that, immediately after 20/8/2008 the officials of the GSUDA had visited the property and had sought to take possession, the appellants had obtained the copies showing the acquisition of land by GSUDA on 8/1/2004 for multipurpose truck terminus. The learned Additional Government Advocate has then referred to the representation dated 21/8/2008 sent by late Jose Sebastiao Crasto to show that, immediately after 20/8/2008 the officials of the GSUDA had visited the property and had sought to take possession, the appellants had obtained the copies showing the acquisition of land by GSUDA on 8/1/2004 for multipurpose truck terminus. It is submitted that thus Jose Sebastiao Crasto was well aware not only about the land having been recorded in the name of Comunidade of Margao but also of its acquisition and of the Certificate dated 28/6/2004 certifying taking over of possession. It was submitted that the suit came to be filed in the year 2014 and thus was clearly barred under Article 58 of the Indian Limitation Act. It was submitted that this cannot be a case of recurring cause of action. It was submitted that the prayer clause in the plaint would indicate that in effect the appellants were challenging the land acquisition proceedings. She therefore submitted that the learned trial Court has rightly rejected the plaint and the order does not call for any interference. 15. I have given my anxious consideration to the rival circumstances and the submissions made. According to the appellants, the subject matter of dispute being land under survey no.65/32 was admeasuring 2600 sq.mtrs. The identity of the land is sought to be challenged only on the ground that in the notification dated 12/12/2002 the land is shown as admeasuring 3969 sq.mtrs and eventually the land admeasuring 2099 sq.mtrs was acquired and taken possession of. In other words, the identity of the land is sought to be challenged and disputed only on the ground of the discrepancy of the area. Be that as it may, it is a matter of record that the property was shown registered in the name of the Comunidade of Margao, when it was notified under sub section 4 of section 17 of the Act of 1894. The order dated 20/6/2003 passed by the Inspector of Survey and Land Records is subsequent to that. It is not known as to whether the said order was challenged by the Comunidade of Margao. The fact remains that on the date of the notification under section 4 as also under sub section 4 of Section 17 of the Act of 1894, the land was standing in the name of the Comunidade of Margao. It is not known as to whether the said order was challenged by the Comunidade of Margao. The fact remains that on the date of the notification under section 4 as also under sub section 4 of Section 17 of the Act of 1894, the land was standing in the name of the Comunidade of Margao. 16. A perusal of the prayer clause in the plaint would clearly show that the appellants are seeking a declaration that the suit property is not acquired and the purported acquisition and taking over of possession is fraudulent, nullity and is void ab initio. Thus, it can be seen that in effect what is challenged is the acquisition proceedings to the extent relating to the acquisition of the disputed property bearing survey no.65/32. Thus although the prayer does not make a mention about the challenge to the Notification under section 4 of the Act (as observed by the learned trial Court) in effect the challenge is to the acquisition proceeding, albeit to the extent, it purports to acquire the land which is subject matter of dispute. In this case it is undisputed that the award is passed long back and the compensation is also paid to the Comunidade of Margao, in respect of the subject matter of dispute. The question is whether in such circumstances, the order rejecting the plaint (as is framed and filed) on the ground of being barred by provisions of the Land Acquisition Act and the Limitation Act requires any interference. 17. The learned Trial Court has relied upon the decision of the Hon'ble Supreme Court in the case of State of Punjab Vs. Amarjit Singh, AIR 2012 SC (Supp) 601. That decision was tried to be distinguished on the ground that it involved a claim based on a Will which can only take effect on the death of the testator. It was submitted that in the present case, the land admittedly stood in the name of the appellants in the Record of Rights. I would tend to disagree with this submission. It was submitted that in the present case, the land admittedly stood in the name of the appellants in the Record of Rights. I would tend to disagree with this submission. In the decision in the case of Amarjit (supra), the Hon'ble Supreme Court has referred to its earlier decision in the case of State of Bihar V. Dhirendra Kumar & Ors, reported in (1995) 4 SCC 229 , in which it was held thus: “...That apart, there is also the question as to whether the Civil Court had the jurisdiction to entertain a suit to challenge the acquisition after the award was rendered. This is because when it comes to acquisition, the L.A Act provides for the entire mechanism as to how acquisition is to be effected and the remedies to the aggrieved parties. In State of Bihar V. Dhirendra Kumar & Ors. Reported in 1995 (4) SCC 229 , (AIR 1995 SC:L 1995 AIR SCW 3050) this Court in terms held that since the Act is a complete code, by necessary implication the power of the Civil Court to take cognizance of a case under Section 9 of the CPC stands excluded, and Civil Court had no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, which could be done only by the High Court in a proceeding under Article 226 of the Constitution. In view of this dictum the civil suit itself was not maintainable ...” 18. In yet another decision in the case of Laxmi Chand Vs. Gram Panchayat, Kararia, reported in (1996) 7 SCC 218 , the appellant challenged the legality of the acquisition proceedings and the award by filing a civil suit. The Trial Court upheld the objection raised by the respondent to the jurisdiction of the civil court and the matter went to the Hon'ble Supreme Court in which while rejecting the challenge it washeld thus: “2. … It is seen that Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under Section 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition. 3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts viz. the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court.” 19. In my considered view, in order to find the nature of challenge, the plaint has to be read as whole along with the prayer clause and from the reading of the same, it is manifest that notwithstanding the language in which the prayer clause is couched, the challenge is essentially to the Land Acquisition proceedings, in so far as the land which is subject matter of dispute is concerned. Having regard to the law as laid down by the Hon'ble Supreme Court, the Civil Court lacked jurisdiction and the suit was not maintainable. 20. Having regard to the law as laid down by the Hon'ble Supreme Court, the Civil Court lacked jurisdiction and the suit was not maintainable. 20. In the case of Manguesh Kankonkar (supra), it was held that where a party was not served with a notice under section 9 or notice of award under sub-section (2) of Section 12 and was not a party before the Land acquisition Officer, but had certain interest in the property or had a share in the property acquired, is not precluded from filing civil suit to get compensation in respect of his share. It was inter alia held that if a person is held to be a claimant by the Land Acquisition Officer and the amount of compensation is paid to him, it is not a decision of title and the person who are sharers and who are not served with notice in the land acquisition proceedings are not bound by such finding recorded. A Civil Suit by such persons is always competent. It can thus be seen that the decision is in the context of apportionment of compensation and would be clearly distinguishable on facts. 21. This takes me to the question of limitation. Indisputably from the allegations in the plaint itself (para 8), it is clear that some of the officials from GSUDA had visited the property on 20/8/2008 and had attempted to take possession on the ground that the property was acquired. The plaint allegations further show that late Jose Sebastiao Crasto resisted such attempt and was made available with a certificate dated 20/6/2004 under section 18 of the Act of 1894 purportedly to be a document certifying taking over of the possession of the disputed property. Paragraph 11 of the plaint would show that the appellants were aware and had realized from the record of GSUDA that there was a Notification published on 12/12/2002 under section 4 with application of sub section 4 of section 17 of the Act of 1894 in which the land which is the subject matter of dispute was sought to be acquired. The only ground on which it is claimed that the suit is within limitation is the fact that the appellants had sent a representation on 20/8/2008 to the Chairman of GSUDA and the Collector South Margao. The only ground on which it is claimed that the suit is within limitation is the fact that the appellants had sent a representation on 20/8/2008 to the Chairman of GSUDA and the Collector South Margao. It is not possible to accept that the making of such representation would bring the suit within limitation or would afford a cause of action for filing the suit. The learned counsel for the appellant submitted that although the cause of action may have first accrued in the year 2008 (when the certificate dated 28/6/2004 was obtained by late Jose S. Crasto), it would be a case of recurring cause of action and the cause of action would recur when the authority refused to renew the licence for the nursery which happened only in the year 2013. In my view, the submission cannot be accepted for more reasons than one. Firstly, this would not be a case of recurring cause of action, in as much as there was a cloud which was created on the title of the appellants when they learnt that the property had been acquired and was vested in the Government free from all encumbrances. The appellants had learnt this in the year 2008 itself. Thus, merely forwarding a representation would neither save the limitation nor the subsequent refusal to renew the licence can afford a fresh cause of action. Secondly and more importantly assuming that this would be a case of recurring cause of action, what Article 58 of the Limitation Act, envisages as the starting point is, when the cause of action first accrues. In other words, even assuming that there was any recurring cause, the first cause of action which was in the year 2008 has to to be reckoned to find out whether the suit was within limitation. The suit having been filed beyond the period of three years was clearly barred by limitation. 22. I have carefully gone through the impugned order and I do not find any reason to interfere with the same. 23. In the result, the appeal is hereby dismissed with no order as to costs.