2010(5) ALL MR 608
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

A.S. OKA AND F.M. REIS, JJ.

Pilerne Citizens Forum Vs. State Of Goa & Ors.

Writ Petition No.294 of 2008,Suo Motu Writ Petition No.1 of 2008

5th August, 2010

Petitioner Counsel: Mr. A. N. S. NADKARNI,Mr. RYAN MENEZES
Respondent Counsel: Mr. S. S. KANTAK,Mr. P. TALAULIKAR,Mr. M. B. D'COSTA,Mr. P. A. KAMAT,Mr. S. G. ANEY,Mr. M. S. JOSHI,Mr. J. P. MULGAONKAR,Mr. A. D. BHOBE,Mr. V. A. LAWANDE

(A) Goa, Daman and Diu Agricultural Tenancy Act (1964), S.4 - Tenant - Who is - Definition of tenant is very wide - S.4 does not contemplate execution of any formal document of any lease or payment of any amount as a rent. (Para 28)

(B) Goa, Daman and Diu Agricultural Tenancy Act (1964), Ss.7, 7A, 58 - Question of tenancy - Jurisdiction to decide question - An exclusive jurisdiction to decide the question as to whether any person is or was a tenant or was a deemed tenant under the tenancy Act is conferred on the Mamlatdar - Held, the exclusive jurisdiction to decide whether any land is used for agricultural purposes also vests in the Mamlatdar - Jurisdiction of Civil Court has been completely ousted. 2009 ALL SCR 388 : 2009(3) ALL MR 486 (S.C.) - Rel. on. (Para 16)

(C) Goa, Daman and Diu Agricultural Tenancy Act (1964), S.55 - Communidades - By a legal fiction, a communidade becomes a "person" for the purposes of the Tenancy Act and is on par with any other landlord. (Para 18)

(D) Goa, Daman and Diu Agricultural Tenancy Act (1964), Ss.9, 10, 11 - Termination of tenancy - There cannot be a termination of tenancy or surrender of tenancy except in accordance with Ss.9, 10, 11 of Tenancy Act - No tenant of any land shall be terminated or evicted save as provided under Tenancy Act.

The legal position which emerges from the provisions of the Tenancy Act can be summarised as under :

(a) Exclusive jurisdiction is conferred on the Mamlatdar to decide the issue whether a person is a tenant under the Tenancy Act or not. Exclusive jurisdiction to decide whether any land is used for agricultural purpose is also conferred on the Mamlatdar.

(b) The jurisdiction of the Civil Court and other authorities is expressly ousted to decide the issue of tenancy, which is required to be decided under Section 7 of the Tenancy Act.

(c) The definition of tenant is very wide and any person lawfully cultivating any land belonging to another person on or after 1st July, 1962 but before the commencement of the Tenancy Act shall be deemed to be a tenant provided other conditions in Section 4 are satisfied. Therefore, any person lawfully cultivating the land of another person becomes a tenant irrespective of the fact whether there was any lease executed in favour of such a person.

(d) There cannot be a termination of tenancy or surrender of tenancy except in accordance with Sections 9, 10 and 11 of the Tenancy Act. No tenant of any land shall be terminated or evicted save as provided under Tenancy Act.

(e) In case of failure of the tenant to purchase the land in accordance with Section 18-A read with Section 18-C, the land does not revert to the landlord and it has to be resumed by the State for allotment to various persons named in sub-section 2 of Section 18-K.

(f) Section 55 of the Tenancy Act declares lands owned by a Communidade to be owned by a single person and not by the individual members and to that extent Code of Communidade stands amended.

(g) No exception has been carved out under the provisions of the Tenancy Act in respect of the lands held by a Communidade and Section 55 of the Tenancy Act makes it clear that a Communidade is on par with any other individual landlord of the agricultural land. [Para 19]

(E) Goa, Daman and Diu Agricultural Tenancy Act (1964), S.18A - Surrender of tenancy - There cannot be a surrender after the vesting under S.18-A of the Act.

The Tenancy Act prohibits surrender of Tenancy in this manner. In fact there cannot be a surrender after the vesting under section 18-A of the Tenancy Act. The Tenancy Act prohibits a tenant purchaser from transferring the land vested in him without prior permission of the Mamlatdar. Thus, on the face of it, the compromise was illegal and even in exercise of administrative powers of sanctioning compromise, the Administrative Tribunal ought not to have sanctioned such compromise which is completely in breach of provisions of the Tenancy Act. The Administrative Tribunal cannot permit compromise which is per se contrary to law. The Tenancy Act has been brought on the statute book as a part of agrarian reforms. Therefore, under the Tenancy Act, there is no provision permitting a deemed purchaser to surrender his rights. The tenancy of an ordinary tenant can be determined only in accordance with the provisions of the Tenancy Act. All these protections are made a part of the Tenancy Act with a view to ensure that tenants are not either tempted or forced to give up their rights under the Tenancy Act. Any compromise or agreement recorded by any Court or tribunal by which a tenant or a tenant who is a deemed purchaser surrenders or gives up his right, title or interest is without jurisdiction. And non-est. [Para 25]

(F) Goa, Daman and Diu Agricultural Tenancy Act (1964), Ss.7, 10, 18A, 58(2) - Surrender of tenancy - Can be permitted only by the Mamlatdar in accordance with S.10 of the Act and the jurisdiction of the Civil Court, completely ousted. (Para 27)

(G) Goa Land Use (Regulation) Act (1991), S.2 - Scope and applicability of - S.2 has been given overriding effect over the provisions of not only the Land Revenue Code but also for the provisions of Town Planning Act - Once the land vests in a tenant under the Tenancy Act, held, no person can use the said land for any purpose other than the agricultural use - Court cannot permit the parties to defeat provisions of law. 2007 ALL SCR 1363 and (1997)1 SCC 734 - Ref. to. (Para 32)

Cases Cited:
Madhumati Atchut Parab Vs. Rajaram V. Parab, 2009(3) ALL MR 486 (S.C.)=(2009)4 SCC 183 [Para 16]
A. V. Papayya Sastry Vs. Govt. of A.P., 2007 ALL SCR 1363 : 2007(4) SCC 221 [Para 32]
State of U.P. Vs. Amarsingh, (1997)1 SCC 734 [Para 32]
Balvant N. Viswamitra Vs. Yadav Sadashiv Mule, (2004)8 SCC 706 [Para 32]


JUDGMENT

A. S. OKA, J.:- The issues involved in these two petitions are common and hence the same are taken up together for the final hearing. The Suo Motu Writ Petition No.1/2008 is on the basis of a newspaper report. The newspaper report was published in daily 'Herald'. The newspaper report was regarding the alleged illegal sale of the land held by Communidade of Pilerne (hereinafter referred to as 'the said Communidade') to builders after entering into compromise with builders. The Writ Petition No.294/2008 is filed in public interest challenging the alienation made by the said Communidade. The contention in short is that in breach of mandatory provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as 'the Tenancy Act') large tracts of land held by the said Communidade have been sold to builders after entering into settlement with the alleged tenants. It is alleged that Section 2 of the Goa Land Use (Regulation) Act, 1991 (hereinafter referred to as 'the Land Use Act') which prevents the use of agricultural land vesting in a tenant under the provisions of the Tenancy Act for any other purpose than the agriculture has been completely defeated.

FACTS OF THE CASE

2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. The lands surveyed under Survey No.211/1 admeasuring 95925 square meters and the land bearing Survey No.212/1 admeasuring 104825 square meters were held by the said Communidade. In the revenue record (Form Nos.I and XIV), the name of one Krishna Bhalchandra Hadfadkar (hereinafter referred to as "the said Hadfalkar") appears as a tenant in respect of both the lands. The 7 to 17 respondents are the legal representatives of the said Hadfadkar. The said Hadfadkar was declared as a deemed purchaser under provisions of Section 18-A of the Tenancy Act in respect of both the lands. Notice under Section 18-C of the Tenancy Act dated 5th February, 1993 was issued by the Mamlatdar and was published in Government Gazette dated 4th March, 1993. On 7th March, 1993, the Mamlatdar passed an order fixing the purchase price. On 30th August, 1993, the Mamlatdar issued a purchase certificate to the said Hadfadkar in respect of both the lands. The Mamlatdar issued a notice under Rule 34 of Agricultural Tenancy Act (Revenue Survey and Record of Rights) Rules, 1967 giving notice of mutation to be made in favour of the said Hadfadkar in the record of rights. The said Communidade (the 4th respondent in W.P. No.294/2008) submitted objections. At the time of hearing before the Mamlatdar, it was contended by the Communidade that the order of purchase has been obtained by the said Hadfadkar by playing fraud and there was no declaration of tenancy made under Section 7 of the Tenancy Act. However, the Mamlatdar passed an order on 17th October, 1997 and allowed the mutation. The Communidade preferred an appeal before the Deputy Collector for challenging the order of Mamlatdar. Another appeal was preferred by the Communidade in the year 1998 for challenging the purchase certificate dated 30th August, 1993 issued by the Mamlatdar in favour of the said Hadfadkar. In both the appeals, it appears that the stay of the impugned order was granted by the Deputy Collector.

3. On 30th March, 1998, the said Communidade filed a suit in the Court of Civil Judge, Senior Division at Mapusa for declaration that the Survey Authorities under the Land Revenue Code have wrongly recorded the name of the first defendant therein (the said Hadfadkar) as a tenant. A prayer for perpetual injunction was made in the said suit. The said Hadfadkar filed the written statement in the said suit contending that the Civil Court had no jurisdiction to entertain and try the suit in view of the provisions of the Tenancy Act in as much as the issue of tenancy can be decided only by the Mamlatdar. The said Hadfadkar contended that he was a tenant in possession. He contended that a Notice under Section 18-C of the Tenancy Act was issued. He contended that the Survey was promulgated in the village in the year 1972 and accordingly, his name was recorded in the tenant's column of the Survey Record in respect of both the lands. It was contended that no action was taken by the said Communidade till 1997 from the year 1972. It must be stated here that one Mr. Jose Nazareth(hereinafter referred to as "the said Nazareth") was also claiming tenancy rights in respect of the lands in question. He was impleaded as a party defendant to the said suit.

4. The appeal preferred by the said Communidade against the order date 7th March, 1993 of the Mamlatdar by which purchase price was fixed was dismissed by the deputy Collector. Being aggrieved by both the orders, the said Communidade preferred Tenancy Revision Application No.24/2001 before the Administrative Tribunal. Similarly, the appeal preferred by the said Communidade against the order passed by the Mamlatdar allowing mutation in favour of Hadfadkar was dismissed. It appears that the fourth respondent passed a resolution by which it was resolved to compromise the pending suit between the said Communidade and the said Hadfadkar as well as the said Nazareth. It seems that an application was made before the Administrative Tribunal under Article 154 read with Article 350 seeking permission to compromise the suit. The compromise was that 50% of land surveyed under Survey No.212/1 would be allotted to the legal representatives of the said Hadfadkar and remaining 50 % will be allotted to the legal representatives of the said Nazareth. In consideration, the said Hadfadkar and the said Nazareth agreed to give up their claim of tenancy against the 4th Respondent in respect of both the lands. The Administrative Tribunal by order dated 1st August, 2006 granted permission to compromise the suit. As per the permission granted by the Administrative Tribunal, consent terms were filed in the suit on 14th November, 2006 and consent decree was passed in the suit. Thereafter, the legal representatives of the said Nazareth executed a sale deed dated 7th December, 2006 to which said Communidade was joined as a confirming party. Under the said sale deed, the legal representatives of the said Nazareth sold the ½ share out of Survey No.212/1 allotted to them in compromise to M/s. Milroc Development Company (25th Respondent in W.P. No.294/2008). The sale deed records that on 27th May, 2006, a Memorandum of understanding was executed by and between the parties to the suit and the 25th respondent paid a sum of Rs.10 Lacs by a cheque dated 27th May, 2006 to the legal representatives of the said Nazareth. The sale deed records that an amount of Rs.1 Crore was paid by the 25th respondent to the said Communidade. The sale Deed also records that a 10 meter wide access was granted by the said Communidade through the land surveyed under no. 211/1 to the said purchaser. The registered deed of Confirmation of Sale dated 5th January, 2007 was executed by and between the said Communidade as first party, the said Hadfadkar as second party, the members of the family of the said Hadfadkar as third party and the 18th and 19th respondents (in Writ Petition No.294/2008) as the purchasers. By the said document, the Communidade confirmed the transfer and sale of ½ share of the said Hadfadkar in favour of the 18th and 19th respondents. The said document records that the said Communidade granted 8 meter wide access road through the land surveyed under Survey No.211/1.

5. It must be noted here that on the basis of the consent decree passed in the civil suit, an application was made by the respondents (the said Hadfadkar and Nazareth) in Tenancy Revision Application No.24/2001 recording their no objection for quashing and setting aside the order dated 7th March, 1993 by which sale price of the said land was fixed in favour of the said Hadfadkar and for quashing and setting aside the purchase certificate dated 30th August, 1993. They recorded their consent for quashing the order passed in Mutation Entry Proceedings by which an application for mutation by the said Hadfadkar was allowed. On the basis of the said application, on 5th December, 2006, the Administrative Tribunal disposed of the Tenancy Revision Application in view of the compromise between the parties. It must be noted here that according to the case of the 18th and 19th respondents, an application for review of the said order was filed which was allowed by which the orders passed by the Mamlatdar and Deputy Collector in favour of the said Hadfadkar were quashed and set aside. However, the 18th and 19th respondents have neither placed a copy of the application nor a copy of the order passed thereon on record. In the Writ Petition it is contended that the action of the fourth respondent Communidade was only a money laundering exercise where certain people have definitely pocketed huge amounts of money. It is submitted that if the suit was to be compromised in terms of resolution dated 23rd April, 2006, there was no occasion for the fourth respondent to accept consideration of rupees one crore, as the fourth respondent had conferred ownership of the said land surveyed under Survey No.212/1 on the tenants. It is contended that the actions of the fourth respondent are in violation of the Tenancy Act and the Land Use Act. It is pointed out that the fourth respondent has obtained a provisional no objection certificate for converting the land surveyed under survey no.211/1 into 78 plots. It is alleged that the wife of third respondent who is a government servant and is holding the post of the registrar of Communidade figures in the list of interested persons who are interested in acquiring the plots. It is submitted that the actions of the respondents would defeat the provisions of Tenancy Act, the Land Use Act and the Code of Communidade. The prayer in the petition is for issuing a writ of mandamus commanding the fifth respondent (the Mamlatdar) to take action under section 10 of the Tenancy Act and to transfer to the said lands to the government on account of the violation of the Tenancy Act. A writ of mandamus is also prayed for against the first respondent (the State of Goa), the second respondent (the Administrator of Communidades), fifth respondent (the Mamlatdar) and the sixth respondent (the Deputy Collector) for directing the said respondents to take appropriate action by treating this case as the case of violation of the provisions of the Tenancy Act and the Land Use Act.

6. In Suo Motu Writ Petition No.1 of 2008, the newspaper report dated 4th March, 2008 recorded that the Communidade has sold the land surveyed under Survey No.212/1 to the Builders from Panaji as well as to a party from Kolhapur. It was alleged in the newspaper report that the land was illegally sold. The order dated 17th March, 2008 passed in the said Suo Motu Writ Petition takes a note of the said newspaper report. Another report in the same newspaper which was taken note of was regarding the alleged sale of Communidade land to one M/s. Tahira Computers. The said land was surveyed under Survey No.90/1.

7. In Writ Petition 294/2008, reply has been filed by the 4th, 18th and 19th respondents and the 25th respondent. There are additional affidavits filed by the parties to the petition. In the Suo Motu Writ Petition, various parties have filed reply including the 24th respondent M/s. Tahira Computers.

THE SUBMISSIONS ON BEHALF OF THE PARTIES

8. The learned Senior Counsel appearing for the petitioner in the W.P. No.294 of 2008 has taken us through the various documents forming part of the record. He submitted that the name of the said Hadfadkar was appearing as a tenant in the record of rights in respect of both the lands surveyed under Survey Nos.211/1 and 212/1. Inviting the attention of the Court to Section 18-A of the Tenancy Act, he submitted that the said lands vested in the said Hadfadkar with effect from 8th October, 1976. He pointed out that a public notice under Section 18-C of the Tenancy Act relating to the said lands was published by the Mamlatdar. He pointed out that apart from the fact that purchase price was fixed in favour of the said Hadfadkar and sale certificate was issued, the said Hadfadkar contested the civil suit filed by the said Communidade by raising preliminary objection of jurisdiction and by contending that he is the tenant purchaser. He submitted that the order of the Mamlatdar under Section 18-C of the said Act and the order of the Deputy Collector in appeal arising out of the proceedings under Section 18-C of the said Act were not set aside in the Revision Application No.24 of 2001, but the Revision Application was merely disposed of on the basis of the compromise. He submitted that the Administrative Tribunal had no jurisdiction for granting permission to the said Communidade to settle the dispute in the suit in as much as apart from the clear entries of the name of the said Hadfadkar in the column of the tenant in the revenue record, there was already a sale certificate granted to the said Hadfadkar in respect of both the lands. He invited the attention of the Court to various provisions of the Tenancy Act and submitted that in the event the tenant purchaser is not willing to purchase the tenanted land, the land is required to be resumed and disposed of to various parties as provided in Section 18-J of the Tenancy Act. Under no circumstances, the land can be returned to the landlord. He pointed out that the tenancy of a tenant under the Tenancy Act can be terminated only in accordance with the one of the modes of the termination of tenancy provided under the Tenancy Act. He submitted that any surrender by a tenant has to be in accordance with Section 10 of the Tenancy Act. He pointed out that the vesting in favour of the said Hadfadkar was completed on 8th October, 1976 as provided in sub-section 1 of Section 18-A of the Tenancy Act. He submitted that as a consequence of sale certificate being granted in favour of the said Hadfadkar, in view of Section 18-K of the Tenancy Act, further transfer by Hadfadkar was prohibited without previous sanction of the Mamlatdar. He submitted that in view of Section 7 of the Tenancy Act read with Section 58 of the Tenancy Act, only the Mamlatdar had exclusively jurisdiction to decide the issue of tenancy. He submitted that in view of Section 2 of the Land Use Act, the lands could not have been used for any purpose other than the agriculture. He pointed out that the so called compromise entered into the suit is nullity as the Civil Court had no jurisdiction to decide the issue of tenancy. He submitted that by this method, the parties have successfully got rid of the prohibition imposed by Section 2 of the Land Use Act. He submitted that the Tenancy Act is a part of agrarian reforms and the intention of legislature has been completely defeated by such action to which the Communidade is an active party. He submitted that the Civil Court had no jurisdiction to record the compromise as the issue of tenancy was already raised in the suit. He pointed out that even before sanction to the compromise was granted by the Administrative Tribunal, on 27th May, 2006, a Memorandum of understanding was executed to which the respondent Nos.20 to 24, the said Communidade and the respondent No.25 were parties and in fact substantial payment was made under the cheques dated 27th May, 2006 by the respondent No.25 to the legal representatives of the Nazareth. He pointed out that the sale deed records that the consideration of Rs.1 Crore has been paid to the said Communidade only for providing an access through the land surrender Survey No.211/1 and the said amount appears to be fanciful for grant of access. He submitted that the modus operandi adopted by the parties has completely defeated the provisions of the Tenancy Act and Land Use Act. He submitted that the object of the Legislature of preserving the agricultural lands has been completely defeated by such modus operandi. He has placed reliance on various decisions. We have made reference to the said decisions in later part of the judgment.

9. The learned Counsel, who has been appointed as an Amicus Curiae in Suo Motu Writ Petition supported the submissions made by the learned Senior Counsel appearing for the petitioner in W.P. No.294/2008. He pointed out that the vesting in a tenant in possession is automatic under Section 18-A and once there is such vesting, under no circumstances, the land can go back to the landlord. He pointed out that in case of a land, which is not purchased by the deemed purchaser, the Mamlatdar has to resume the land and to dispose of the same to persons belonging to Scheduled Castes and Scheduled Tribes and to the certain members of the defence forces and freedom fighters, agricultural labourers, landless persons etc. He pointed out that the provisions of Section 33 of the Goa, Daman and Diu Land Revenue Code, 1968 (hereinafter referred to as 'the Land Revenue Code') and pointed out that the penalties are provided for change of use of land without obtaining permission of the Collector.

10. The learned Senior Counsel appearing for the said Communidade invited the attention of the Court to the provisions of the Code of Communidade (hereinafter referred to as 'the said Code'). He pointed out that Chapter 5 of the Code lays down the procedure for grant of long leases. He pointed out the different categories of leases provided under the said Code. He pointed out that the lands in questions are cashew gardens and a long lease could have been granted by the Communidade only in accordance with the provision of Articles 317 to 322 of the said Code. He pointed out the minutes drawn by the Communidade in respect of the said lands and especially item Nos.6, 7 and 8. He pointed out that even assuming that there was any right created in favour of the said Hadfadkar, the same could have been only in accordance with Articles 317 to 322 of the said Code. He invited the attention to the minutes of the meeting of the Communidade and pointed out that there is no reference therein to lease or transfer the cultivation to said Hadfadkar and it refers only to items of income allotted to Jose Nazareth. There is no reference to the said Hadfadkar. Inviting the attention of the Court to definition of the tenant under Section 2(23) of the Tenancy Act, he urged that the minutes of the Communidade show that there was no tenancy was ever created. He submitted that it is well settled law that entries in survey record are having rebuttable presumption. He submitted that there is no adjudication made under Section 7 of the Tenancy Act as regards the alleged claims of tenancy of the said Hadfadkar and Nazareth. He submitted that under Section 18-A of the Tenancy Act, a person becomes tenant purchaser provided he is declared as a tenant by the Mamlatdar in accordance with Section 7 of the Tenancy Act. He submitted that sub-section 5 of Section 18-C of the Tenancy Act contemplates that purchase price can be fixed only after giving an opportunity of being heard to the landlord and in the present case, no opportunity of being heard was given to the landlord i.e. the said Communidade. He submitted that in the civil suit filed by the Communidade, a written statement was filed by the said Hadfadkar in which he did not rely upon any rent receipt or lease agreement. He submitted that Hadfadkar is completely a stranger to the Communidade and the said Nazareth was granted only licence by the said Communidade to pluck cashew and apples. He submitted that even to the notice of mutation, an objection was raised by the Communidade contending that the said Communidade continues to be in actual and physical possession of the lands. He submitted that the order passed by the Administrative Tribunal of granting sanction to the compromise, the order of the Administrative Tribunal in Tenancy Revision Application No.24/2001 and the consent decree passed in the appeal have not been challenged. He invited the attention of the Court to the judgment and order dated 7th March, 2007 passed by the Deputy Collector, which holds that the said lands were not tenanted lands. He submitted that even the said order was not challenged by anyone. He submitted that the petition involves several disputed questions of fact. He submitted that the power vesting in the Administrative Tribunal to grant sanction for the settlement is not purely administrative power. He submitted that on the basis of the compromise, the Communidade obtained sub-division of the land surveyed under survey No.211/1. He submitted that by paying substantial amount, Sanad of conversion has been obtained. He submitted that in the present case, no shareholders or any other person connected with the Communidade has made any grievance about any illegality or irregularity. He submitted that the Tenancy Act, Land Revenue Code and the Goa, Daman and Diu Town and Country Planning Act, 1974 prevail over the Land Use Act. Lastly, he pointed out that the petition is not bonafide. He stated that one Suvarnesingh Rane, who has affirmed the petition had approached the said Communidade with a request to allot the land, but the Managing Committee did not accede to the request of the said Rane. He pointed out that after this was brought to our notice by filing reply, another person has affirmed rejoinder, which is not supported by any resolution of the petitioner.

11. The learned Senior Counsel appearing for the 18th and 19th respondents also made detailed submissions. He pointed out the order of the Mamlatdar fixing purchase price was behind the back of the said Communidade and in fact, said order was obtained by fraud as no notice was served to the Communidade. He submitted that immediately on receipt of the notice of mutation on the basis of the sale certificate granted to the said Hadfadkar, at the first opportunity, the Communidiade filed a reply before the Mamlatdar and raised contention before the Mamlatdar that a fraud has been played by the said Hadfadkar and there was no declaration of tenancy. He pointed out that the order passed by the Mamlatdar under the Tenancy Act as well as in mutation proceedings were challenged by the Communidade by preferring an appeal and in fact in the appeal, in the year 1997, the Deputy Collector granted stay of the orders. He pointed out that after dismissal of the appeal in the year 2001, the said Communidade preferred the Revision Application before the Administrative Tribunal. He pointed out that only after stay was granted by the Administrative Tribunal, a suit was filed by the Communidade, which proceeds on footing that the Communidade continued to be in possession and, therefore, in fact perpetual injunction was sought by filing the suit. He pointed out that an appeal preferred by the Communidade against the order of Mamlatdar was not dismissed on merits, but on the ground of bar of limitation. He pointed out that the permission of the Administrative Tribunal for compromise was sought six years after filing of the suit. He stated that only after permission was granted, the consent terms were filed. He submitted that the Communidade adopted legal proceedings right from the year 1993 and only in 2006, a settlement was made after finding that the legal process was taking an inordinately long time. He submitted that there are no malafides on the part of the Communidade and the decision was taken by the Communidade in the interest of its components. He pointed out that as the Communidade did not succeed in the legal proceedings for a period of 13 years, this decision was taken and as a result of the compromise, vast land admeasuring more than one lac square meters surveyed under Survey No.211/1 remained with the Communidade free of any encumbrance of the said Hadfadkar or any other person. He submitted that after the execution sale deeds, in the year 2007 and in the year 2008, permissions were obtained by the Communidade for development. A Conversion Sanad was also obtained. He submitted that the 18th and 19th respondents are bonafide purchasers as set out in their detailed reply. He pointed out that the argument that the Administrative Tribunal did not set aside the orders of the Mamlatdar and Deputy Collector while disposing of Revision Application No.24 of 2001 is not correct as on a Review Application made, the said orders were set aside. However, he stated that a copy of the order passed in review is not placed on record. He relied upon various decisions of the Apex Court and submitted that no interference is called for. He submitted that Hadfadkar obtained order from the Mamlatdar by playing fraud. He supported the submissions of the learned Senior Counsel appearing for the Communidade and submitted that the public interest litigation was not bonafide.

12. The learned Advocate General assisted the Court by inviting the attention of the Court to the powers of the Administrative Tribunal. The learned Counsel appearing for the 7th to 12th respondents adopted the submissions of the learned Senior Counsel appearing for the 4th respondent as well as 18th and 19th respondents. The learned Counsel appearing for the 21st respondent as well as the learned Counsel appearing for the 25th respondent have generally adopted the submissions made by the contesting respondents.

13. The learned Counsel appearing for the respondent No.24 (M/s. Tahira Computers in Suo Motu Writ Petition No.1 of 2008) invited the attention of the Court to the provisions of Article 334-A of the Code of Communidade and pointed out that the Communidade with the prior approval of the Government was entitled to grant Communidade land on aforamento for small scale industries without auction. He pointed out that an application made by the 24th respondent to the Governor of Goa for grant of land bearing Survey No.90/1(part) situated at village Marra was published in Government Gazette as required by the provisions of the said Code. Approval was granted by the Government on 28th March, 2007. He relied upon various documents granting approval. He submitted that there is no illegality in the transaction and no interference is called for.

14. The learned Senior Counsel appearing for the petitioner in W.P. No.294/2008 has made certain submissions by way of reply. He submitted that the case of the Communidade was that the notice of the proceedings under Section 18-C of the Tenancy Act was not served has not been accepted in as much as the Revision Application has not been decided on merits. He pointed out that on the basis of the compromise, the orders of Mamlatdar and the Deputy Collector under the Tenancy Act have not been set aside by the Administrative Tribunal while disposing of the Revision Application. He submitted that though a contention has been raised by the contesting respondents that the said order was set aside in review, a copy of the order in review has not been produced on record. He submitted that in any case, under the Tenancy Act, power of review has not been conferred on the Administrative Tribunal and as late as in the year 2009, a bill has been moved by the State Government for amendment of the Tenancy Act inter alia providing for giving power of review to the Administrative Tribunal.

CONSIDERATION OF LEGAL PROVISIONS

15. We have given careful consideration to the submissions. Before going to the factual aspects of the case, consideration of relevant statutory provisions is necessary. The Tenancy Act is brought on the statute book as a part of agrarian reforms. Section 4 of the said Act lays down that a person lawfully cultivating any land belonging to another person on or after 1st July, 1962 but before the commencement of the Tenancy Act shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such a person is not a member of the owner's family or a servant of the owner or a mortgagee in possession. Thus, under Section 4, a person, who is lawfully cultivating any land belonging to another person on or after 1st July, 1962 but before 8th February, 1965 shall be deemed to be a tenant. The definition of tenant is very wide. Section 4 does not contemplate execution of any formal document of any lease or payment of any amount as a rent. Section 7 and Section 7-A of the said Act read thus :

"7. Question of tenancy - If any question arises whether any person is a or was tenant or should be deemed to be a tenant under this Act the Mamlatdar shall, after holding an inquiry, decide such question. "In any such enquiry, the Mamlatdar shall presume that any statement as to the existence of a right of tenancy in record of rights prepared in the prescribed manner under and in accordance with the provisions of this Act, is true"."

"7-A. Question as to nature of land.- If any question arises as to whether any land is or is not used for agricultural purposes the Mamlatdar shall, after holding an inquiry, decide such question."

16. Section 58 of the Tenancy Act and in particular sub-section 2 thereof lay down that no Court shall have jurisdiction to settle, decide or deal with any question, which is by or under the Tenancy Act is required to be settled, decided or dealt with by the Mamlatdar. On conjoint reading of Sections 7, 7-A and Section 58, it is apparent that an exclusive jurisdiction to decide the question as to whether any person is or was a tenant or was a deemed tenant under the Tenancy Act is conferred on the Mamlatdar. The exclusive jurisdiction to decide whether any land is used for agricultural purposes also vests in the Mamlatdar. The jurisdiction of Civil Court to decide the questions of tenancy which are required to be decided by the Mamlatdar under section 7 of the Tenancy Act has been completely ousted. In fact, no other authority under the Tenancy Act save and except the Mamlatdar can decide the question of tenancy under Section 7 of the Tenancy Act. In the case of Madhumati Atchut Parab Vs. Rajaram V. Parab and others ((2009)4 SCC 183 : [2009 ALL SCR 388 : 2009(3) ALL MR 486 (S.C.)]), the Apex Court held that the Mamlatdar in exercise of powers under Section 7 of the Tenancy Act is empowered to grant even a negative declaration that a person claiming to be a tenant is not a tenant.

17. Apart from the aforesaid provisions, there are other provisions of the Tenancy Act which are material for consideration. Sub-section 1 of Section 18-A reads thus :

"18-A. Tenants deemed to have purchased lands on tillers' day.- (1) On the tillers' day, every tenant shall, subject to the other provisions of this Act, be deemed to have purchased from his landlord the land held by him as a tenant and such land shall vest in him free from all encumbrances subsisting on the said day."

18. Section 18-C contemplates that after the tillers' day, the Mamlatdar shall publish a public notice in a prescribed form in official gazette calling upon the tenants who under Section 18-A are deemed to have purchased the lands, the landlords and all the persons interested in the lands to appear before him. Thereafter, the Mamlatdar is required to record statement of the tenant on the question whether he was willing to purchase the tenanted lands. Thereafter, the Mamlatdar is required to pass an order in writing declaring purchase to be ineffective in the event the tenant is not willing to purchase the land. If the tenant shows willingness to purchase the land, after hearing the tenant and landlord, the Mamlatdar is required to fix the purchase price payable to the landlord in accordance with Section 18-D of the Tenancy Act. Under Section 18-H of the Tenancy Act, in case the purchase price is not recovered from the tenant even as arrears of land revenue, the purchase shall become ineffective and the land shall be disposed of in accordance with Section 18-J of the Tenancy Act. When the purchase under Section 18-A becomes ineffective, the Mamlatdar has to resume the land and thereafter he is required to dispose of the land to various persons specified under sub-section 2 of Section 18-J. The persons specified therein belong to various classes such as members of Scheduled Castes and Scheduled Tribes, members of Defence Forces, freedom fighters, agricultural labourers, Co-operative Farm Societies etc. Section 18-K provides that no land purchased under the Tenancy Act shall be transferred in any manner without the previous sanction of the Mamlatdar. Against the orders passed by the Mamlatdar, an appeal is provided under the Tenancy Act to the Collector and the decision of the Collector is made final subject to revision by the Administrative Tribunal. Another important provision of the Tenancy Act is Section 55 which reads thus :

"55. Lands held by Comunidades.- For the removal of doubts it is hereby declared that the lands owned by a Comunidade shall be deemed to be owned by it as a single person and not by the individual members thereof and that the provisions of this Act shall apply to such lands and the provisions in the Code of Comunidades or any other Decree or other law relating to Comunidades shall stand modified or repealed to the extent necessary."

Thus, by a legal fiction, a Comunidade becomes a "Person" for the purposes of the Tenancy Act and is on par with any other Landlord.

19. Thus, the legal position which emerges from the provisions of the Tenancy Act can be summarised as under :

(a) Exclusive jurisdiction is conferred on the Mamlatdar to decide the issue whether a person is a tenant under the Tenancy Act or not. Exclusive jurisdiction to decide whether any land is used for agricultural purpose is also conferred on the Mamlatdar.

(b) The jurisdiction of the Civil Court and other authorities is expressly ousted to decide the issue of tenancy, which is required to be decided under Section 7 of the Tenancy Act.

(c) The definition of tenant is very wide and any person lawfully cultivating any land belonging to another person on or after 1st July, 1962 but before the commencement of the Tenancy Act shall be deemed to be a tenant provided other conditions in Section 4 are satisfied. Therefore, any person lawfully cultivating the land of another person becomes a tenant irrespective of the fact whether there was any lease executed in favour of such a person.

(d) There cannot be a termination of tenancy or surrender of tenancy except in accordance with Sections 9, 10 and 11 of the Tenancy Act. No tenant of any land shall be terminated or evicted save as provided under Tenancy Act.

(e) In case of failure of the tenant to purchase the land in accordance with Section 18-A read with Section 18-C, the land does not revert to the landlord and it has to be resumed by the State for allotment to various persons named in sub-section 2 of Section 18-K.

(f) Section 55 of the Tenancy Act declares lands owned by a Communidade to be owned by a single person and not by the individual members and to that extent Code of Communidade stands amended.

(g) No exception has been carved out under the provisions of the Tenancy Act in respect of the lands held by a Communidade and Section 55 of the Tenancy Act makes it clear that a Communidade is on par with any other individual landlord of the agricultural land.

20. Another material enactment is the Land Use Act, which is specifically enacted for regulation of use of agricultural land for non-agricultural purposes. Section 2 of the Land Use Act, which came into in force on 2nd November, 1990 reads thus :

"2. Regulation of use of land.- Notwithstanding anything contained in the Goa, Daman and Diu Town and Country Planning Act, 1974 (Act 21 of 1975), or in any plan or scheme made thereunder, or in the Goa Land Revenue Code, 1968 (Act 9 of 1969), no land which is vested in a tenant under the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Act 7 of 1964) shall be used or allowed to be used for any purpose other than agriculture."

The section starts with non-obstante clause and the section has been given overriding effect over the provisions of the Goa, Daman and Diu Town Planning Act, 1974 and the Goa Land Revenue Code. The Section not only prevents a tenant in whom the land is vested under the Tenancy Act from using the land for any purpose other than agriculture, but even a person other than such a tenant is not entitled to use the land for any purpose other than agriculture. The restriction imposed is qua the land which is vested under section 18-A of the Tenancy Act. In view of section 3, the said embargo is lifted only after acquisition of the agricultural land under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act of 1894'). The legal effect of the Section 2 is that once there is a vesting of a land under Section 18-A of the Tenancy Act in a tenant, the land cannot be used for any purpose other than agriculture and even under the provisions of Town Planning Act and Land Revenue Code, the change of user cannot be allowed. Change of user is allowed only when there is vesting as a consequence of acquisition under the said Act of 1894. It is obvious that the Land Use Act has been enacted to encourage agriculture and to prevent the agricultural lands from being used for any non-agricultural purpose. The intention of Legislature appears to be that once the land vests in a tenant under Section 18-A of the Tenancy Act, under no circumstances user thereof can be permitted to be changed except after acquisition under the said Act of 1894. The object of the Legislature seems to be that such tenanted agricultural lands have to be preserved as an agricultural lands and, therefore, the salutary provision of Section 2 has been enacted. Such a land vested in a tenant cannot be transferred to any third party without prior permission of the Mamlatdar.

FINDINGS

21. Now, that takes us to the consideration of the facts of the case in the light of the legal position summarised above. It is not in dispute that in case of both the lands surveyed under Survey Nos.211/1 and 212/1, the name of the said Hadfadkar was recorded as an agricultural tenant. Notice under Section 18-C of the Tenancy Act was published in official gazette dated 4th March, 1993. The notice includes both aforesaid lands. A grievance was made by the contesting respondents that the names of the landlord and the tenant do not appear in the said notice. It must be noted here that the Goa, Daman and Diu Agricultural Tenancy Rules, 1965 has prescribed the form of notice which does not contemplate incorporation of names of the landlord or the tenant. It is not in dispute that the Mamlatdar passed an order on 7th March, 1993 fixing the purchase price and on 30th August, 1993, purchase certificate was issued to the said Hadfadkar in respect of both the lands. Though notice under section 18-C was published in gazette, no contest was made by the Communidade. Only after notice of mutation entry on the basis of the purchase certificate was issued by the Mamlatdar, the Communidade raised an objection by filing a reply. At this stage, it must be noted that in the written statement of the said Hadfadkar filed in the suit it is contended that there was promulgation of revenue record in the year 1972 and the name of the said Hadfadkar appears in the revenue record from the year 1972.

22. As far as the proceedings under the Tenancy Act are concerned, the order of the Mamlatdar dated 7th March, 1993 fixing the purchase price was challenged by preferring an appeal. The said appeal preferred by the Communidade was dismissed and a Tenancy Revision Application No.24/2001 was filed by the Communidade. On the basis of settlement, the said Hadfadkar and Nazareth made an application dated 5th December, 2006 in the said Revision Application recording their no objection for setting aside the orders of the Mamlatdar and the sale certificate. The order passed on the said application by the Administrative Tribunal disposing of the Revision Application reads thus :

"The Respondents have filed the above application stating that the matter between the parties herein with same subject matter has been settled amongst them before the Civil Court and a consent decree has been passed. The appellant represented by its attorney agrees with the respondent and gives his no objection for disposal of the Tenancy Revision pending before this tribunal, in view of the terms arrival at between the parties and laid as aforesaid. Hence in view of the consent terms as above the Tenancy Revision application stands disposed accordingly."

23. Though the 18th and 19th respondents have contended that the said order was modified and the orders of the Mamlatdar were set aside, admittedly a copy of the order allegedly passed by the Administrative Tribunal on review is not placed on record and, therefore, we have to proceed on the footing that the last order passed by the Administrative Tribunal is dated 5th December, 2006, which only disposes of the Revision Application. In any case, even assuming that there such an order, there is no adjudication made on merits of the claim of tenancy. Thus, the factual position which emerges is as under :

(a) There was an entry in the revenue records in respect of both the lands showing the said Hadfadkar as a tenant.

(b) There is a purchase certificate granted in favour of the said Hadfadkar in respect of both the lands.

(c) There is no negative declaration granted by the Mamlatdar holding that either the said Hadfadkar or Nazareth were not the tenants.

(d) Entry of the name of the said Hadfadkar as a tenant in the record of rights was not challenged by the Communidade and what was sought to be challenged by filing a reply was a mutation sought to be made on the basis of the purchase certificate.

24. In the civil suit filed by the Communidade, the challenge is to the entry in the tenant's column of the said Hadfadkar. The said Hadfadkar filed a written statement and raised a contention that the Civil Court had no jurisdiction to decide the issue of tenancy and relied upon the purchase certificate. It is crystal clear that the issue of jurisdiction was raised in the civil suit and, therefore, the Civil Court could not have decided the issue of tenancy, which clearly arose in the said suit. It will be interesting to note what is recorded in the order dated 1st August, 1966 passed by the Administrative Tribunal. In the order granting sanction under Article 350 of the Code paragraph 2 reads thus:

"2. In view of the said settlement, property bearing Survey No.212/1 would be allotted in half shares each to the heirs of Bhalchandra Hadfadkar and Smt. Jovita Nazareth and heirs of late Jose Caetano Nazareth and in consideration of the said allotment, the heirs of Bhalchandra Hadfadkar and Smt. Jovita Nazareth shall give up their right or claim to the property surveyed under no.211/1 as its tenants and the said proposal having been accepted by the legal heirs of Bhalchandra Hadfadkar, Smt. Jovita Nazareth and heirs of Jose Caetano Nazareth, in the Extra Ordinary Meeting dated 23th April, 2006 of the Communidade, it was unanimously resolved to settle the cases pending before the Communidiade and heirs of Bhalchandra Hadfadkar, Smt. Jovita Nazareth and Jose Caetano Nazareth, as per the proposed terms which were accepted by the other side."

25. The earlier part of the said order notes that in respect of tenancy of the said Hadfadkar, Revision Application No.24/2001 filed by the said Communidade before the Administrative Tribunal was pending. The compromise noted by the Administrative Tribunal is that Hadfadkar had agreed to give up his right or claim of tenancy in respect of land surveyed under Survey No.211/1. The Tribunal was made aware of the fact that there was already a purchase certificate granted in favour of the said Hadfadkar in respect of the said land. In fact, the Administrative Tribunal permitted compromise by which there was virtually a surrender of tenancy by the said Hadfadkar in respect of one of the two lands in respect of which he was declared as a Purchaser. The purported giving up of tenancy by the said Hadfadkar was after purchase certificate was granted in his favour. The Tenancy Act prohibits surrender of Tenancy in this manner. In fact there cannot be a surrender after the vesting under section 18-A of the Tenancy Act. The Tenancy Act prohibits a tenant purchaser from transferring the land vested in him without prior permission of the Mamlatdar. Thus, on the face of it, the compromise was illegal and even in exercise of administrative powers of sanctioning compromise, the Administrative Tribunal ought not to have sanctioned such compromise which is completely in breach of provisions of the Tenancy Act. The Administrative Tribunal cannot permit compromise which is per se contrary to law. As stated earlier, the Tenancy Act has been brought on the statute book as a part of agrarian reforms. Therefore, under the Tenancy Act, there is no provision permitting a deemed purchaser to surrender his rights. The tenancy of an ordinary tenant can be determined only in accordance with the provisions of the Tenancy Act. All these protections are made a part of the Tenancy Act with a view to ensure that tenants are not either tempted or forced to give up their rights under the Tenancy Act. Any compromise or agreement recorded by any Court or tribunal by which a tenant or a tenant who is a deemed purchaser surrenders or gives up his right, title or interest is without jurisdiction. And non-est.

26. The matter does not rest here. In the consent terms filed in the Civil Court, it is provided as under :

"5. That the defendants shall withdraw their claim of Tenancy which are pending before the Mamlatdar of Bardez at Mapusa and accordingly shall withdraw the Tenancy cases bearing nos.TNC/PUR/PLN/38/93, TNC/PUR/PLN/39/93 and any other application for declaration of Tenancy, forthwith on execution of this Consent Terms. Accordingly, the Revision Applications pending before the Administrative Tribunal shall also be withdrawn by the plaintiff.

6. That the defendants shall be entitled to partition the respective portion of land, which have been allotted to them and also seek Mutation of the same.

7. That the name of the plaintiff appearing in the Occupant's Column and the name of Krishna Bhalchandra Hadfadkar, the defendant no.1 appearing in the Tenant's Column in Forms I & XIV of Survey No.212/1 of Village Pilerne shall stand deleted and the names of the defendants and other legal heirs of late Bhalchandra Hadfadkar who have signed these Consent Terms shall be deleted from the Tenant's Column in Form Nos.I & XIV of the property bearing Survey No.211/1 of Village Pilerne....."

27. In terms of compromise, the Civil Court passed a consent decree on 16th November, 2006. The consent terms record that Hadfadkar and Nazareth shall withdraw their claim of tenancy. The jurisdiction of the Civil Court to decide the issue of tenancy was ousted by Section 58(2) of the Tenancy Act. Even the exclusive jurisdiction to grant a negative declaration that a person is not a tenant vests in the Mamlatdar under section 7 of the Tenancy Act. What has been permitted under the compromise is surrender/relinquishment of tenancy by the said Hadfadkar which in law is completely prohibited by the Tenancy Act. Surrender could have been permitted only by the Mamlatdar in accordance with Section 10 of Tenancy Act and the jurisdiction of the Civil Court was completely ousted. Thus, the so called compromise recording surrender or relinquishment by Hadfadkar is null and void and whether it is challenged or not, it has no legal effect in the eyes of law. The provisions of Tenancy Act which is a part of agrarian reforms cannot be allowed to be circumvented by such methods.

28. The effect of the so called settlement is that the land surveyed under Survey No.211/1 remains with the Communidade and the land bearing Survey No.212/2 was divided between Hadfadkar and Nazareth. There is a drastic consequence of such compromise assuming that it is valid. In view of Section 2 of the Land Use Act, both the lands which vested in Hadfadkar under the Tenancy Act, under no circumstances could have been used for non-agricultural purpose. If the said Hadfadkar was not willing to purchase the said lands in accordance with the Tenancy Act, the same would have been resumed by the Mamlatdar and it could have been allotted only to the category of persons named by the Tenancy Act. By the modus operandi adopted by the parties not only the said Hadfadkar purported to sell his 50% of land Surveyed under Survey No.212/1, but the purchasers converted the same for non-agricultural use. Thus, not only the provisions of Tenancy Act, but the provisions of the Land Use Act have been circumvented and nullified by this modus operandi. This method has been adopted to get rid of the complete prohibition on non-agricultural use imposed by section 2 of the Land Use Act. The object of the Land Use Act is to ensure that the land vesting in the tenant in accordance with the provisions of the Tenancy Act shall not be used for any non-agricultural use under any circumstances. The said provision has been given overriding effect over the statutes like the Town and Country Planning Act and the Land Revenue Code. By adopting the aforesaid modus operandi, the parties have successfully got rid of the prohibition imposed by section 2.

29. It must be noted that the argument of the learned counsel appearing for the Communidade is that tenancy was never created in favour of the said Hadfadkar and Nazareth. The said argument cannot be considered in as much as only the Mamlatdar can decide the said issue. It cannot be ignored that there was already an entry in the tenant's column in the revenue record showing the said Hadfadkar as a tenant in respect of both the lands. A reliance has been placed by the respondents on an order passed by the Deputy Collector on 7th March, 2007. An application was made by the Communidade on 9th February, 2007 to conduct an enquiry in respect of tenancy rights shown in the Survey No.211/1. The said Hadfadkar and Nazareth were shown as the respondents. Inspection was conducted in the year 2007. The order passed by the Deputy Collector thereafter notes as under:

"This Court has perused the application the reply filed by the respondents and various documents and Court orders and inquiry report of Mamlatdar of Bardez and after scrutiny of all documents, it has been observed that the respondent No.1 name which was figuring in the tenant column was not in a capacity of a tenant. The respondent were claiming tenancy taking the advantage of erroneous entry in the tenant column. Further it is also observed that the Forms I & XIV there is not a single entry shown in the cultivators column which indicates that there was no any cultivation in the said property. Further the Mamlatdar of Bardez in his inquiry report has reported that there was no any tenancy and also no any cultivation in the said property as on 2/11/1990 and thereafter. So also at the time of inspection it was observed that the property bearing survey No.211/1 is a rocky and barren land in which there are bushes and about 15 cashew saplings.

From overall inquiry conducted into the application, this Court has observed that although the name is deleted from the tenant column in the year 2007, the suit property was not a tenanted property which is also admitted by the respondents and therefore in my view this Court has arrived to a finding that there was no any tenant to the suit property bearing survey No.211/1 as on 2/11/1990 and thereafter"."

30. This application was moved by the Communidade in the year 2007 only in respect of land surveyed under survey No.211/1 on the basis of the judgment and order of this Court in W.P. No.291 of 2000 dated 5th September, 2000. Paragraph 11 of the said judgment and order reads thus :

"11. The Petitioners may have their own case. It is possible for them to satisfy the authority concerned that the land concerned was one where there was no agricultural tenant. It is open for them to satisfy the authority i.e. the Deputy Collector and Sub-Divisional Officer concerned and that would be in the fitness of the case. We are, therefore, of the view that the authority should hear the Petitioners and they will be at liberty to place all documents, and the authority will examine whether there was any tenancy on the date on which the Goa Land Use (Regulation) Act, 1991 came into force, and whether any illegal conversion has taken place. Thereafter necessary order will be passed. It will be for the authority to decide the representations of the Petitioners as well as of other person who are similarly situated. Representations will be decided on merit. The authority shall endeavour to hear and decide the representations expeditiously and preferably within three months from the date of receiving them. The request of Shri. Usgaonkar, learned Advocate that the construction be permitted in the meanwhile is not entertained."

This Court permitted the petitioner before it to apply to the authority so that the authority can examine whether there was any tenancy on the date on which the Land Use Act came into force. Thus, on the application made by the Communidade, the only enquiry which was supposed to be held was that whether there was any tenancy on the date on which the Land Use Act came into force in the year 1991. The Deputy Collector had no jurisdiction to decide the issue of tenancy in view of bar created by Section 58(2) of the Tenancy Act. Moreover, the aforesaid order of the Deputy Collector is based on concession of tenants, who had already entered into settlement and had accepted consideration of more than a sum of Rs.1 Crore from the purchasers. Even the Communidade had received a consideration of Rs.1 Crore ostensibly for grant of right of way before the said order was passed. The order is based on admission. The order goes to record that there was no cultivation. The said order is no adjudication under Section 7 of the Tenancy Act. In fact under Section 7-A of the Tenancy Act, the question whether any land is used for agricultural purpose could have been exclusively decided by the Mamlatdar. Therefore, the order of the Deputy Collector is of no legal effect on the claim of tenancy.

31. The learned Senior Counsel appearing for the 18th and 19th respondents have contended that the Secretary of the petitioner Suvarnesingh had sought allotment of land from Communidade, which has been denied. It is contended that rejoinder has been filed by one Mr. Aaron Fernandes, who had no authority. However, minutes of the meeting have been placed on record by the Petitioner to show that the said Suvarnesingh Rane resigned and thereafter Mr. Aaron Fernandes was appointed as the Secretary. Even assuming that the Writ Petition No.294/2008 is not entertained, in the Suo Motu Petition all the respondents in the said Writ Petition are parties. The notice has been issued by this Court as regards the illegality of the same transaction. Therefore, all these aspects will not be gone into even in Suo Motu Petition.

32. The learned Senior Counsel appearing for the 18th and 19th respondents relied upon the decision of the Apex Court in the case of A. V. Papayya Sastry and Others Vs. Govt. of A.P. and Others (2007(4) SCC 221 : [2007 ALL SCR 1363]) in support of the submissions. He has also placed reliance on the decision of the Apex Court in the case of State of U.P. Vs. Amarsingh and Others ((1997)1 SCC 734). His submission is that the said Hadfadkar played fraud by obtaining the order of fixing price without notice to the Communidade. The submission of the learned Senior Counsel appearing for the fourth respondent is that there is no record available to show that the said Hadfadkar had any concern with the land vesting in Communidade. All these submissions do not merit consideration. In a public interest litigation what is brought to our notice is that a tenanted land admeasuring more than one lac square meters has been allowed to be used for non-agricultural use completely contrary to Section 2 of the Land Use Act. We are making no adjudication on the rights of either Hadfadkar or Nazareth. We are really shocked to note the modus operandi adopted to defeat the provisions of the Tenancy Act, which is a legislation as a measure of agrarian reforms as well as the provisions of beneficial legislation like Land Use Act. Section 2 of the Land Use Act has been given overriding effect over the provisions of not only the Land Revenue Code but also for the provisions of Town Planning Act. Once the land vests in a tenant under the Tenancy Act, no person can use the said land for any purpose other than the agricultural use. This Court cannot be a silent spectator to the exercise of jurisdiction by the Civil Court and by the Administrative Tribunal, which was not vested in them. This Court cannot allow the provisions of beneficial legislations being circumvented in this fashion. The order of the Administrative Tribunal sanctioning the compromise and the consent decree of the civil court are without jurisdiction and non est. Secondly, the order of the disposal of the Revision Application No.24/2001 on the basis of such compromise is also null and void. The aforesaid two orders and the decree of the civil court will have to be ignored. It is contended before us that there is no specific challenge in the Writ Petition to the said orders and the decree. However, there is a prayer for transferring the land to the government in accordance with the provisions of the Tenancy Act on account of illegal transfer by the tenant. Moreover, the issue of legality and validity of the said orders very much arises in the Suo Motu Petition. As stated earlier, this Court cannot permit the parties to defeat the provisions of law by adopting such modus operandi and to use the said lands for non-agricultural purposes which could have been lawfully used only for agriculture. In the case of Balvant N. Viswamitra Vs. Yadav Sadashiv Mule [(2004)8 SCC 706], the Apex Court held thus:

"In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.

10. Five decades ago, in Kiran Singh Vs. Chaman Paswan this Court declared : (SCR p.121)

"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ... strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." (emphasis added)

33. Thus, after holding that the order passed by the Administrative Tribunal granting permission to compromise, the order passed by the Administrative Tribunal disposing of the Revision Application and the decree of the civil court in terms of the compromise are void on account of inherent lack of jurisdiction, the said orders and decree cannot be allowed to be acted upon. However, the issue regarding tenancy will have to be adjudicated upon. A Revision Application challenging the order and purchase certificate granted by the Mamlatdar was filed by the Communidade. As the order passed therein on the basis of compromise is without jurisdiction, we will have to permit the Communidade to prosecute the Revision Application. The purchasers are entitled to apply to the Administrative Tribunal for impleading themselves as parties to the Revision Application. The purchasers or Communidade can also apply for negative declaration as against the said Hadfadkar and Nazareth. We make it clear that the Revisional Authority or the Mamlatdar, as the case may be, will decide the proceedings on its own merits without being influenced by any observations made in this order in as much as this Court has not dealt with merits of the claim of tenancy. The consent decree passed in the civil suit is also a nullity. Therefore, the Civil Suit can be prosecuted further. The Civil Suit filed by the Communidade will remain stayed till the disposal of the proceedings under the Tenancy Act. It is obvious that none of the purchasers as well as Hadfadkar and Nazareth will be entitled to proceed with non-agricultural use of the land surveyed under Survey No.212/1 and even the Communidade cannot put the land surveyed under Survey No.211/1 to non-agricultural use. Needless to add that if the Authorities under Tenancy Act hold that there is no basis for claim of tenancy of Hadfadkar and Nazareth, the legal consequence will follow.

34. Now, turning to the controversy in Suo Motu Writ Petition as regards the grant of lease in favour of the M/s. Tahira Computers Pvt. Ltd., we have perused the reply of M/s. Tahira Computers. An application was made by the said M/s. Tahira Computers to Governor of Goa to obtain land bearing Survey No.90/1 (part) on aforamento basis for industrial purpose. There was a public notice published in the gazette of the said application. There was a public notice of Extra-ordinary meeting of the Communidade published in the official gazette. After following the procedure, the Government granted approval for grant of land admeasuring 35,000 square meters bearing Survey No.90/1 to the said Tahira Computers. Annual lease amount of Rs.2,75,625 has been fixed. The Government granted permission to the Communidade to grant the said land to M/s. Tahira Computers without formality of auction for industrial purpose in terms of Article 334-A of the Code subject to various conditions. We find nothing illegal about allotment made in to the M/s. Tahira Computers.

35. Hence, we pass the following order :

(i) We hold that the order dated 1st August, 2006 passed by the Administrative Tribunal, the consent decree dated 16th November, 2006 passed by the Civil Court in Regular Civil Suit No.259/1998/A and the order of the Administrative Tribunal on Tenancy Revision Application No.24/2001 disposing of the Revision Application are without jurisdiction and null and void.

(ii) We direct the Administrative Tribunal to decide the Revision Application No.24/2001 in accordance with law. We permit the 18th and 19th respondents as well as 25th respondent to apply for being made parties to the said Revision Application.

(iii) We permit the parties to apply for a negative declaration of tenancy against the said Hadfadkar and Nazareth in respect of both the lands surveyed under Survey Nos.211/1 and 212/1.

(iv) We direct that the Revision Application shall be decided in accordance with law as expeditiously as possible and within a period of four months from today.

(v) We direct that the Revision Application as well as the proceedings which may be filed by other respondents shall be decided by the authorities on its own merit.

(vi) We clarify that we have not recorded any finding on the claims of the tenancy set up by the said Hadfadkar or Nazareth.

(vii) We direct that Regular Civil Suit No.259/1998/A will remain stayed till the proceedings under the Tenancy Act are disposed of.

(viii) We restrain the 4th to 25th respondents from using both the lands in question for any non-agricultural use till the disposal of the proceedings under the Tenancy Act.

(ix) We make it clear that in the event the tenancy claim of Hadfadkar and Nazareth is finally negatived, the restriction imposed by this Court will not operate and non-agricultural use can be permitted subject to provisions of law. If the tenancy claim is upheld, the action in accordance with the Tenancy Act will follow.

(x) We hold that there is no illegality as regards the transfer of the land in favour of the M/s. Tahira Computers.

(xi) We dispose of the Writ Petitions accordingly.

36. An application is made by the learned Counsel representing the 4th, 18th, 19th, and 25th respondents for stay of operation of this judgment.

37. We direct that the operation of the order contained in clauses (i) to (ix) of the operative part of the Judgment will remain stayed for a period of 8 weeks from today. However, we direct that the order of status-quo operating during the pendency of the writ petitions, will continue to operate for a period of 8 weeks from today. We clarify that operation of clause (x) of the operative part of the order is not stayed.

Ordered accordingly.