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2023 DIGILAW 1578 (BOM)

Janki Raglo Malwankar v. Ida Heredia

2023-07-21

M.S.SONAK

body2023
JUDGMENT/ORDER 1. Heard Mr Thali for the Petitioner, Mr Sagar Dhargalkar under Legal Aid Scheme for Respondent No.9, Ms Gautami Kamat for Respondent No.10 and Mr Gaonkar for Respondents No.12 and 13. 2. Mr Thali states that all the Respondents have been duly served. Accordingly, Rule. Considering the orders made earlier, including order dtd. 7/7/2023, the Rule is heard finally at the stage of admission. 3. The challenge in this Petition is to the orders dtd. 25/11/2013 and 12/07/2020 made by the Mamlatdar and the Deputy Collector, respectively, dismissing the Petitioners' application to delete Respondents No.9 and 10 as parties in Tenancy Case No.JM-II/TNC/13/2001. The Applicants had also applied for a declaration based upon some alleged admission on behalf of the landlords. 4. The record bears out that the Petitioners and Respondents No.11, 12, and 13 (original Applicants) applied for a declaration of tenancy under Sec. 7 of the Goa Tenancy Act,1964 (said Act), concerning the property bearing survey Nos. 30/1 and 30/3 of village Narve, Bicholim Taluka (suit property) before the Mamlatdar of Bicholim. The same was registered as Tenancy Case No. JM-II/TNC/13/2001. 5. The Application was filed against Respondents No.1 to 8 (Landlords). Further, even Respondents 9 and 10 were impleaded as parties since an injunction was sought against them. The predecessor-in-title of the Petitioners was the brother of Respondents No.9 and 10. 6. The Joint Mamlatdar, by order dtd. 18/6/2002, dismissed the prayer for an injunction against Respondents No.9 and 10, holding that the Mamlatdar had no jurisdiction since there was no relationship of tenant-landlord between the predecessor-in-title of the Petitioners and Respondents No.9 and 10. Therefore, the Petitioners instituted Special Civil Suit No.23/2002/A and sought an injunction against Respondents 9 and 10. A decree was made in the said Suit, which the First Appellate Court confirmed. 7. On 23/8/2006, the original Applicants (including the Petitioners) filed an application seeking the following reliefs in the tenancy case. (i) Respondents No.9 and 10 as parties to the said proceedings be deleted. (ii) The original Applicants be declared as tenants of the suit properties based on the admission of claim of tenancy thereof by the landlords. 8. By an order dtd. 25/11/2013, the Mamlatdar dismissed the application dtd. 23/8/2006. By an order dtd. 12/7/2022, the Deputy Collector upheld Mamlatdar's order dtd. 25/11/2013. These are the orders impugned in the present Petition. 9. The Mamlatdar, by his order dtd. 8. By an order dtd. 25/11/2013, the Mamlatdar dismissed the application dtd. 23/8/2006. By an order dtd. 12/7/2022, the Deputy Collector upheld Mamlatdar's order dtd. 25/11/2013. These are the orders impugned in the present Petition. 9. The Mamlatdar, by his order dtd. 18/6/2002, declined the original Applicants any injunction against Respondents No.9 and 10, holding that he had no jurisdiction to do so. The Mamlatdar had reasoned that there was no landlord-tenant relationship between the original Applicants and Respondents No.9 and 10. This order was never challenged by Respondents No.9 and 10. and, perhaps, correctly because even Respondents No.9 and 10 do not claim any landlord-tenant relationship with the Applicants. Respondents No.9 and 10 only contend that even they are the tenants of the suit property along with the original Applicants. 10. Therefore, the Mamlatdar was not right in not allowing the original Applicants to delete Respondents No.9 and 10. Such a deletion would, obviously, be at the risk and consequences of the original Applicants. After seeking such deletion, the original Applicants cannot use the order they might obtain in the Tenancy Case No. JM-II/TNC/13/2001 against Respondents No.9 and 10. Such an order will not bind Respondents No. 9 and 10 if Respondents No.9 and 10 take out independent proceedings to assert their alleged right in the suit property. With this clarification, the application for deletion of Respondent No.9 and 10 should have been allowed. In such matters, the original Applicants cannot be forced to take out proceedings or continue proceedings against some of their relatives, mainly since the Mamlatdar had already held that he would have no jurisdiction to go into the inter se dispute between the alleged tenants. 11. The deletion of Respondents No.9 and 10 would, in no manner, prejudice Respondents No.9 and 10 who are free to pursue their independent remedies before the appropriate forum. While pursuing such remedies, if the order in Tenancy Case No. JM-II/TNC/13/2001 is sought to be used against them, then, the Authorities before whom such use is attempted must ignore the same. Taking cognizance of such an order by such Authorities would amount to the violation of the principles of natural justice and fair play. The original Applicants cannot, on the one hand delete respondents 9 and 10 from these proceedings, and on the other hand use the results of these proceedings against the respondents 9 and 10. 12. Taking cognizance of such an order by such Authorities would amount to the violation of the principles of natural justice and fair play. The original Applicants cannot, on the one hand delete respondents 9 and 10 from these proceedings, and on the other hand use the results of these proceedings against the respondents 9 and 10. 12. The above clarification is made to ensure that the rights of Respondents No.9 and 10, if any, are not prejudiced. The original Applicants' application dtd. 23/8/2006, to the extent it seeks deletion of Respondents No.9 and 10, is allowed. To that extent, the orders of the Mamlatdar and the Deputy Collector are interfered with. 13. In so far as the prayer for declaration of tenancy based on the alleged admission by the landlord is concerned, Mr Thali submits that the impugned orders do not address this issue. Therefore, he seeks liberty to file a fresh application. He submits that some directions be issued to the Mamlatdar to dispose of such fresh application within a time-bound schedule. This request is quite reasonable. 14. If the orders of the Mamlatdar and the Deputy Collector are perused, it is evident that they had not even adjudicated the prayer for declaration based on admission. However, liberty is granted to the original Applicants to file a fresh application seeking a declaration as tenants based on the alleged admissions. If such an application is filed, the Mamlatdar should dispose of the same within six months. Such disposal should be following the law and on its own merits. The Mamlatdar should also clarify that such a declaration will not bind Respondents No.9 and 10, who are now ordered to be deleted from the array of Respondents. 15. Once again, it is clarified that nothing in this order will prejudice Respondents No. 9 and 10 from pursuing their own independent remedies. Similarly, nothing in the orders that may be made in Tenancy Case No. JM-II/TNC/13/2001 will bind or prejudice Respondents No.9 and 10, in case they wish to pursue their own independent remedies. 16. The Rule is made absolute with the above clarification. 17. There shall be no order for costs. 18. All concerned to act on an authenticated copy of this order.