Case Note & Summary
The litigation originated from two civil suits filed in 1992 by M/s. Suvarn Rajaram Bandekar Discretionary Trust against one Armando Cardozo for removal of encroachments on their property bearing Survey No. 76/1-A in Goa. Armando Cardozo defended claiming the structures were part of his mundkarial dwelling under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. The civil court framed an issue on mundkarship and referred it to the Mamlatdar under Section 32 of the Act. During the Mamlatdar proceedings, Armando Cardozo died and his legal representatives were brought on record. The Mamlatdar, by order dated 21/12/2012, held that the applicants were mundkars of respondent No.3 (another trust) and not of the petitioner's property. Respondent Nos. 1 and 2 separately appealed to the Deputy Collector, asserting they had no opportunity to participate in the Mamlatdar proceedings. The Deputy Collector, on 04/11/2014, set aside the Mamlatdar's order, directing fresh hearing after giving all parties an opportunity. The petitioner then filed two revision applications before the Administrative Tribunal which, by orders dated 21/12/2015, partly allowed the revisions, directing the Mamlatdar to decide the referred issue afresh after giving all parties reasonable opportunity of hearing. Aggrieved, the petitioner filed the present writ petition under Articles 226 and 227 of the Constitution of India, seeking to quash the Tribunal's orders and the underlying orders of the Deputy Collector and Mamlatdar. The main legal issues raised were whether the Administrative Tribunal's orders were perverse, whether the Mamlatdar had jurisdiction to go beyond the referred issue, whether failure to give separate notice to substituted legal representatives violated natural justice, and whether a single writ petition against two separate orders was maintainable. The petitioner argued through Senior Advocate J.E. Coelho Pereira that the rules under the Act did not require fresh notice after substitution, that the Mamlatdar had power under the CPC to add or frame issues, and that the lower orders were contrary to a previous decision of the High Court. The respondents argued through Advocate P.S. Rao that the scope of superintendence under Article 227 was narrow, that the Mamlatdar's jurisdiction was strictly limited to the referred issue, and that the Tribunal's direction for a fresh hearing after due opportunity did no injustice. The court reserved judgment on 9 April 2018 and pronounced it on 4 May 2018. The judgment contains detailed submissions of both sides but the operative part is not included in the extracted text. Thus the final decision and ratio decidendi remain 'Not mentioned'.
Headnote
A) Administrative Law - Opportunity of Hearing to Substituted Legal Representatives - Whether failure to give separate notice vitiates Mamlatdar's order - Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, Sections 32, 8A; Rules, 1977, Rules 14(12), 14(13), 14(14) - Respondent Nos.1 and 2, substituted as legal representatives after death of original applicant Armando Cardozo, appealed claiming no opportunity to participate in proceedings before the Mamlatdar. Deputy Collector set aside the Mamlatdar's order for want of notice. Petitioner argued once substitution was allowed no further notice was required under the Rules. Held that the Tribunal directed fresh hearing after giving all parties reasonable opportunity. (Paras 4, 5, 7, 9)
B) Civil Procedure - Reference of Issue to Mamlatdar under Section 32 of Mundkar Act - Extent of Mamlatdar's Jurisdiction - Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, Section 32; Code of Civil Procedure, 1908, Order XLI Rule 25 - The Civil Court referred the issue of mundkarship to the Mamlatdar. The Deputy Collector held the Mamlatdar had no jurisdiction to add or delete parties or frame additional issues. The Administrative Tribunal directed the Mamlatdar to decide the referred issue after hearing all parties. Petitioner contended that Mamlatdar could frame additional issues and that the Act was akin to Order XLI Rule 25 CPC. Held that the Administrative Tribunal partly allowed the revisions, directing the Mamlatdar to determine the issue afresh. (Paras 4, 5, 8, 9)
C) Constitutional Law - Writ Jurisdiction under Articles 226 and 227 - Maintainability of Single Petition Against Two Orders - Constitution of India, Articles 226, 227 - Respondent No.2 raised preliminary objection that one writ petition cannot challenge two separate orders passed in distinct revision applications. Petitioner invoked supervisory jurisdiction to correct perversity and jurisdictional errors, relying on Surya Dev Rai v. Ram Chander Rai. Held that the power of superintendence to be exercised only in cases of manifest injustice or perversity. (Paras 7, 8)
D) Statute Interpretation - Applicability of CPC to Proceedings under Mundkar Act - Procedural safeguards - Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975; Code of Civil Procedure, 1908 - Petitioner argued that the provisions of the Code of Civil Procedure applied to the proceedings under the Mundkar Act, and therefore the Mamlatdar had power to add or delete parties. Respondents contended that Section 32 proceedings are limited to the referred issue. The Court considered whether procedural rules under the Act ousted CPC principles. (Paras 6, 8, 9)
Issue of Consideration
Whether the Administrative Tribunal's orders were perverse and contrary to law; whether the Mamlatdar violated principles of natural justice by not giving notice to all legal representatives; whether a single writ petition is maintainable against two separate orders; whether the Mamlatdar had jurisdiction to frame additional issues or add parties when the issue was referred by the Civil Court under Section 32 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975.
Law Points
- provisions of Code of Civil Procedure applied to proceedings under Mundkar Act
- defence available to legal representatives not larger than that of original defendant
- scope of superintendence under Article 227 restrictive
- order passed by Administrative Tribunal contrary to provisions of Act warranted exercise of superintendence
- Mamlatdar while deciding issue under Section 32 must act within parameters of referred issue
Case Details
2018 LawText (BOM) (05) 45
WRIT PETITION NO. 71 of 2016
J.E. Coelho Pereira, V. Braganza, Parag Rao, P.S. Rao
M/s. Suvarn Rajaram Bandekar Discretionary Trust
Advocate Sunifer Cardozo, Mr. Jovek Cardozo, M/s. Narayan Rajaram Bandekar Discretionary Trust, Mrs. Maria Leticia Cardozo, Miss Sweta Cardozo, Mrs. Audrey Cardozo Fernandes, Mr. James Sebastiao Fernandes, Joint Mamlatdar of Salcete at Margao, Deputy Collector and S.D.O., Administrative Tribunal of Goa at Panaji
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging two orders of the Administrative Tribunal dated 21/12/2015, and the underlying orders of the Deputy Collector dated 04/11/2014 and the Mamlatdar dated 21/12/2012, in a dispute over mundkarial rights arising from civil suits for removal of encroachments.
Remedy Sought
Petitioner seeks to quash the impugned orders of the Administrative Tribunal, Deputy Collector, and Mamlatdar, and to restore the original finding of the Mamlatdar or obtain an order that the legal representatives of late Armando Cardozo are not mundkars of the petitioner's property.
Filing Reason
The Administrative Tribunal directed a fresh hearing before the Mamlatdar after the petitioner had earlier obtained a favorable order from the Mamlatdar, causing further delay in the resolution of civil suits pending since 1992.
Previous Decisions
The Mamlatdar's order dated 21/12/2012 declared the legal representatives of Armando Cardozo as mundkars of respondent No.3 and not of the petitioner's property. The Deputy Collector in two appeals dated 04/11/2014 set aside the Mamlatdar's order and directed fresh hearing. The Administrative Tribunal partly allowed the revisions on 21/12/2015, directing the Mamlatdar to decide the issue after giving all parties an opportunity of hearing.
Issues
Whether the Administrative Tribunal's orders were perverse and contrary to law.
Whether the Mamlatdar violated principles of natural justice by not giving separate notice to all legal representatives substituted during the proceedings.
Whether a single writ petition challenging two separate orders of the Administrative Tribunal is maintainable.
Whether the Mamlatdar had jurisdiction to add or delete parties or frame additional issues beyond the issue referred by the Civil Court under Section 32 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975.
Submissions/Arguments
Petitioner's counsel argued that the rules under the Mundkar Act did not require fresh notice after substitution of legal representatives; the defence available to legal representatives is not larger than that of the original applicant; provisions of CPC apply to Mundkar Act proceedings; the Deputy Collector's order was contrary to a previous High Court judgment; the Administrative Tribunal's orders were perverse and unsustainable.
Respondents' counsel argued that the scope of superintendence under Article 227 is narrow and that a single writ petition against two orders is not maintainable; the Mamlatdar's jurisdiction under Section 32 is strictly limited to the referred issue and cannot add or delete issues; failure to give hearing to all legal representatives violated natural justice; the Tribunal's order directing fresh hearing caused no manifest injustice; the Civil Court referred only the issue from the second suit, not the first, and the Mamlatdar confused structures from both suits.
Judgment Excerpts
The petitioner as the original plaintiff had filed the Suit No.461/2000/III (Old Special Civil Suit No.64/1992/A) and Regular Civil Suit No.466/2000/III (Old Special Civil Suit No.153/1992/B) against one Armando Cardozo for the removal of the encroachments made in their property.
The Mamlatdar by the judgment and order dated 21/12/2012 declared the applicants i.e. the legal representatives of late Armando as mundkars of the respondents No.3 and held that they had no right to claim mundkarial right in respect of the structures situated in the petitioner's property.
The Deputy Collector and the Sub-Divisional Officer held in the appeal of the respondent No.2 that the Mamlatdar had no jurisdiction to add or delete any party when the issue was referred to the Civil Court and/or to frame additional issues.
It was the contention of Shri J. E. Coelho Pereira, learned Senior Counsel while adverting to the judgment of the Deputy Collector in the case of the respondent No.1 that the application to bring the legal representatives on record was allowed pursuant to which the respondent No.1 was brought on record alongwith the other legal representatives.
Shri P.S. Rao, learned Advocate for the respondent No.2 raised preliminary objections to the maintainability of one single Writ Petition against the two impugned orders and submitted that it was for the petitioner to elect which impugned order it sought to challenge when separate revision petitions were filed before the Administrative Tribunal.
Procedural History
Petitioner filed two civil suits in 1992 against Armando Cardozo for encroachment; the defendant claimed mundkarial rights. The civil court framed an issue of mundkarship and referred it to the Mamlatdar under Section 32 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. During Mamlatdar proceedings, Armando Cardozo died and respondent Nos. 1 and 2 were substituted as legal representatives. The Mamlatdar passed order dated 21/12/2012 declaring them mundkars of respondent No.3, not of petitioner. Respondent Nos. 1 and 2 separately appealed to Deputy Collector, who set aside the Mamlatdar's order on 04/11/2014, directing fresh hearing. Petitioner filed two revision applications before the Administrative Tribunal, which partly allowed them on 21/12/2015, directing the Mamlatdar to decide the issue after giving hearing to all parties. Petitioner filed the present writ petition in 2016 challenging those orders. Earlier, petitioner had filed writ petitions seeking expeditious disposal of the lower proceedings.
Acts & Sections
- Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975: Section 8A, Section 32
- Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, 1977: Rule 14(12), Rule 14(13), Rule 14(14)
- Code of Civil Procedure, 1908: Order XLI Rule 25
- Constitution of India: Articles 226, 227
