2012(3) ALL MR 518
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

F.M. REIS, J.

Shri Pedro Fernandes & Anr. Vs. Shri Rosarinho Menezes & Ors.

Writ Petition No. 280 of 2011

23rd December, 2011

Petitioner Counsel: Mr. SHIVAN DESSAI
Respondent Counsel: Mr. S. D. LOTLIKAR Ms. S. PAI KIR

(A) Civil P.C. (1908), O.21 - Execution - Jurisdiction of Executing Court - Observation by Executing Court that the judgments of High Court reported in 1989 (2) GLT 167 and 2001 (1) GLT 3 are contrary to judgment passed by Apex Court in AIR 1970 SC 1475 - Such an observation was made by Executing Court in a review petition which was hopelessly time barred - Held, Executing Court has exercised its Jurisdiction with material irregularity - Findings recorded by it, not sustainable. (Para 8)

(B) Civil P.C. (1908), O.21 - Goa Daman and Diu Mundkars (Protection from Eviction) Act (1975), S.32 - Execution - Order of demolition - Issue of Mundkarship in respect of disputed property, pending before authority under Mundkar Act - Execution of demolition of structure on disputed land is to be stayed - Such stay however would not affect the removal of vegetation, fencing or any plantation etc. on the public road. (Para 9)

JUDGMENT

JUDGMENT :- Heard Shri Shivan Dessai, learned Counsel appearing for the petitioners and Shri S. D. Lotlikar, learned Senior Counsel appearing for respondent no.1.

2. Rule. Heard forthwith by consent of learned Counsel.

3. Ms. S. Pai Kir, learned Counsel waives service on behalf of respondent no.1.

4. The above petition challenges the order dated 06.04.2010 passed in Civil Misc. Application No. 23/08/A in Execution Application No. 6/2005/A whereby the learned Judge by the impugned order allowed the application filed by respondent no.1 and recalled the earlier order dated 29.08.2007.

5. Shri Shivan Dessai, learned Counsel appearing for the petitioners has taken strong exception to the impugned order and pointed out that the learned Judge has exceeded its jurisdiction in passing the impugned order as it was not incumbent upon the learned Judge to come to the conclusion that the judgment passed by this Court is per incuriam in view of the judgment passed by the Apex Court reported in AIR 1970 SC page 1475. The learned Judge further pointed out that the earlier order dated 29.08.2007 had become final as after the passing of the said order, the respondent no.1 had preferred a Writ Petition before this Court which came to be withdrawn by order dated 17.04.2008. The learned Counsel further took me through the impugned order and pointed out that the application filed by respondent no.1 was in fact for review of the earlier order dated 29.08.2007 and as such the question of invoking the jurisdiction by the learned Judge under Section 151 of Civil Procedure Code to recall the order does not arise at all. The learned Counsel has further pointed out that on the basis of the judgments passed by this Court, the learned Judge had rightly stayed the execution proceedings as the issue of mundkarship is under adjudication before the competent authority under the Mundkar Act. The learned Counsel further pointed out that the passing of the impugned order by the learned Judge can be considered to be judicial indiscipline in as much as it was not open to the learned Judge to come to the conclusion that the judgment passed by this Court is per incuriam in view of the judgment of the Apex Court when the Writ Petition filed by the respondents was withdrawn. The learned Counsel further pointed out that the learned Judge misconstrued the judgments passed by this Court as well as the judgment of the Apex Court and has come to an erroneous conclusion that the order passed on 29.08.2007 deserves to be recalled.

6. On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for respondent no.1 has supported the impugned order. The learned Senior Counsel has pointed out that the learned Judge had exercised its jurisdiction to advance substantial justice and as such the question of interference by this Court under Article 227 of the Constitution of India would not arise at all. The learned Senior Counsel further pointed out that the learned Judge has taken note of the fact that the application for temporary injunction filed by the petitioners in the proceedings initiated by them was dismissed by the learned Mamlatdar. The learned Senior Counsel further pointed out that in the earlier proceedings, there was no defence raised by respondent no.1 to the effect that he was a mundkar of the dwelling house existing therein and as such the question of staying the execution proceedings would not arise at all. The learned Senior Counsel further pointed out that by the judgment and decree passed in favour of respondent no.1, the petitioners have been directed to remove the fencing and plants planted by them in the disputed portion of the property which consists of six metres wide road as according to him is the public road. The learned Senior Counsel further pointed out that the question of there being any mundkarial area on the portion of the public road does not arise at all. Consequently, the learned Senior Counsel submitted that the claim of the petitioners that they are the mundkars of the disputed portion of the land are farfetched. The learned Senior Counsel as such submitted that there is no reason for interference by this Court in the impugned order and as such the above petition deserves to be rejected.

7. When question as to how the learned executing Court could come to the conclusion that the judgment passed by this Court should not be followed, the learned Senior Counsel fairly conceded that it was not appropriate for the learned Judge to come to such a conclusion.

8. Having heard the learned Counsel and on perusal of records and after going through the impugned order, I find that the learned Judge was not justified to make such observation as stated therein whilst passing the impugned order. It was not open to the learned Judge to come to the conclusion that the judgments passed by this Court which are reported in 1989(2) GLT 167 and 2001(1) GLT 3 are contrary to the judgment passed by the Apex Court in AIR 1970 SC 1475. The judgments passed by this Court are binding on the Courts below and in fact in the present case it is not in dispute that on the basis of the said judgments, the earlier order dated 29.8.2007 came to be passed. Apart from that, it is also not in dispute that the said order dated 29.08.2007 was assailed by respondent no.1 and the Writ Petition filed before this Court came to be withdrawn. It is also to be noted that the application filed by the respondents was in the nature of a review petition which was hopelessly time barred. As such, the learned Judge has exercised its jurisdiction with material irregularity whilst passing the impugned order and consequently, the findings to that effect cannot be sustained and deserves to be quashed and set aside.

9. When it was pointed out to the learned Counsel appearing for the petitioners as to how the petitioners could encroach on the public road by putting fencing and/or vegetation therein, Shri Dessai, learned Counsel appearing for the petitioners has fairly stated that the petitioners would remove any such vegetation and/or any plantation existing in the disputed portion of six metres wide road on the north-east side of the existing house. Even assuming the petitioners are mundkars of the structure existing in the disputed portion of the property, they cannot claim any right to the surrounding land until the same is purchased in accordance with the provisions of the Mundkar Act. As such, considering the facts and circumstances of the case, at this stage, as the application for temporary injunction filed by the petitioners before the Mamlatdar has been dismissed, the stay granted by the learned Executing Court to the execution proceedings filed by respondent no.1 would be restricted only to the removal of the encroachment by any structure, if any, located in the disputed portion of six metres wide road. The said stay shall operate until the disposal of the proceedings by the competent authority under the Mundkar Act. Such stay shall not in any way affect the right of respondent no.1 to proceed with the execution proceedings to remove encroachment made by any vegetation, fencing and/or any other plantation, trees existing in the disputed portion of six metres wide road.

10. In view of the above, I pass the following :

ORDER

(i)The petition is partly allowed.

(ii)The impugned order dated 6.4.2010 is quashed and set aside and the application dated 30.6.2008 filed by the respondents is partly allowed.

(iii)The execution proceedings No.6/2005/A filed by respondent no.1 shall be stayed only to the extent of eviction/demolition of the structure, if any, located in the disputed portion of six metres wide road which was subject matter of the suit.

(iv)The execution proceedings shall proceed with regard to the removal of any fencing, vegetation, plants, etc., in the said disputed portion of six metres wide road in accordance with law.

(v)The remaining part of the decree to demolish the encroachment shall be executed after the disposal of the proceedings before the competent authority under the Mundkar Act.

(vi)Rule is disposed of in above terms.

(vii)The petition stands disposed of accordingly with no order as to costs.

Ordered accordingly.