2013(7) ALL MR 509
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
R.M. SAVANT, J.
Dr. Mariano S. J. Godinho Vs. Shri Henriques Carneiro & Ors.
Writ Petition No.448 of 2013
13th September, 2013
Petitioner Counsel: Shri A.F. Diniz
Respondent Counsel: Shri M. Fernandes
Constitution of India, Arts.226, 227 - Writ jurisdiction - Scope - Order passed in revision was passed without proper appreciation of facts on record - Revisional authority having misdirected itself, petition before Mamlatdar turned infructuous and issue was concluded depriving petitioner any remedy against the order - Orders passed by revisional authority and Mamlatdar be quashed and set aside. (Para 7)
2. The writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India is invoked against two orders, being order dated 26/03/2012 passed by the Deputy Collector in case No.Mund/Revision/5/09 and order dated 3/04/2013 passed by the Joint Mamlatdar in case No. JM-II/MUND/PURCH/VAS/01/2008.
3. The backdrop to the above proceedings is the declaration issued in favour of the respondent no.1 by the Mamlatdar declaring him to be a Mundkar. It is the case of the petitioner that the said order dated 22/02/2002 declaring the respondent no.1 as a Mundkar is an ex-parte order. It appears that the petitioner gathered knowledge of the said order when he received notice in the proceedings for purchase filed by the respondent no.1 being Case No.JM-II/MUND/PURCH/VAS/01/2008. It is on receipt of the said notice that the petitioner came to know that there is an order passed by the Mamlatdar declaring the respondent no.1 as a Mundkar in respect of the property in question. The petitioner thereafter immediately filed two applications, one for setting aside the said ex-parte order, which is the application filed on 8/05/2008, and an application for staying the purchase proceedings which were pending before the Mamlatdar which is the application filed on 2/06/2008. Since the purchase proceedings were being proceeded with by the Mamlatdar the second application, which was filed on 2/06/2008 came to be moved by the petitioner for staying the said purchase proceedings. The said application came to be rejected by the Joint Mamlatdar-II, Mormugao Taluka by his order dated 30/09/2009 and the rejection is on the ground that the petitioner i.e. the applicant had not filed any application before any competent Court to set aside the judgment and order declaring the respondent no.1 as Mundkar, as also not produced any stay order to stay the proceedings.
4. The petitioner aggrieved by the said order dated 30/09/2009 filed a Revision being Mund/Revision/5/2009. Since the relief sought was restricted to only, stay of the proceedings of purchase before the Mamlatdar, in the said application in the introductory paragraph it was averred that the only issue, is whether the Mamlatdar was justified in dismissing the application of the petitioner dated 2/06/2008 on the ground that the petitioner had not produced any stay order of the higher court staying the proceedings. The said Revision filed by the petitioner has been rejected by the first impugned order dated 26/03/2012. The reading of the said order discloses that the Mamlatdar has gone into the aspect as to whether the notice in respect of the proceedings for Mundkarship was served upon the petitioner or not and thereafter has recorded a finding that the summons in respect of the said proceedings were in fact served on the petitioner.
In view of the order dated 26/03/2012 passed by the Deputy Collector, Mormugao, when the application for setting aside the ex-parte order declaring the respondent no.1 as a Mundkar came before the Mamlatdar, the Mamlatdar passed an order on 3/04/2013 directing the proceedings to be closed in view of the order passed by the Deputy Collector, Mormugao. As indicated above, it is the said two orders i.e. the order dated 26/03/2013 and 3/04/2013 which are taken exception to by way of the above petition.
5. The principle contention of the learned Counsel appearing on behalf of the petitioner, Shri Diniz is that in the revision which was filed by the petitioner the issue was only limited to the aspect as to whether the proceedings for purchase were required to be stayed pending the consideration of the application filed by the petitioner for setting aside the order declaring the respondent no.1 as a Mundkar. It is the submission of Shri Diniz that the Deputy Collector has whilst considering the said application has unnecessarily gone into the aspect as to whether the notice in respect of the main proceedings were served upon the petitioner as the said issue was pending before the Mamlatdar. The learned Counsel would contend that the said order has caused prejudice to the petitioner in as much as the petitioner is now virtually deprived of any remedy against the said order dated 3/04/2012 as the proceedings are closed by the Mamlatdar.
6. Per contra, Shri M. Fernandes, the learned Counsel appearing for respondents no.1 & 2 would support the order dated 26/03/2012 passed by the Deputy Collector, Mormugao and would contend that the said order is justified considering the fact that the address of the petitioner as in the present petition is also the said address on which the summons in the proceedings relating to deed of Mundkar were sent.
7. Having heard the learned Counsel for the parties, in my view the orders passed by the order dated 26/03/2012 and 3/04/2012 are unsustainable and are required to be quashed and set aside. As indicated herein above the limited issue before the Deputy Collector, Mormugao was whether the proceedings for purchase were required to be stayed pending the consideration of the application of the petitioner for setting aside the alleged ex-parte order dated 22/02/2002. In my view, it was totally unnecessary for the Deputy Collector to go into the aspect as to whether the application in question filed by the respondent no.1 for declaration of mundkarship was served upon the petitioner. The order under revision was an order passed by the Mamlatdar wherein he has observed that since no application has been filed before any competent Court to set aside the order dated 22/02/2002 and since the applicant had not produced on record any stay order to the present proceedings that the application filed by the petitioner dated 2/06/2008 came to be rejected. The Deputy Collector was therefore required to address the revision application from the said angle. However, as indicated above, the Deputy Collector has totally misdirected himself and gone into the aspect as to whether the notice in the main proceedings was served upon the petitioner. This has resulted in the application dated 8/05/2002 filed before the Mamlatdar being turned infructuous as the issue was concluded by the Deputy Collector by his order dated 26/03/2012. In my view therefore the order passed by the Deputy Collector dated 26/03/2012 as also the order passed by the Mamlatdar dated 2/03/2013 are required to be quashed and set aside and are accordingly quashed and set aside and the following directions are issued:
(i) In view of the setting aside of the impugned orders the application dated 8/05/2008 stands restored. The said application dated 8/05/2008 for setting aside the order dated 22/02/2002 alleged to be an ex-parte order is directed to be heard and decided by the Mamlatdar within a period of three months from date.
(ii) Pending consideration of the said application dated 8/05/2008, further proceedings in JM-II/MUND/PURCH/VAS/1/08 would stand stayed. This is as per the consent give by Shri M. Fernandes ,the learned Counsel appearing for respondents no.1 & 2.
(iii) The Mamlatdar concerned is directed to decide the said application dated 8/05/2008 on its own merits and in accordance with law.
(iv) The contentions of the parties are left open for being urged before the Mamlatdar.
(v) The parties are directed to appear before the Mamaltdar on 3/10/2013 at 3.00 p.m. The time fixed by this Court for disposal of the proceedings would start to run from then.
(vi) The learned Counsel for the parties make a statement that their respective clients would cooperate in the disposal of the proceedings within the time frame fixed by the instant order.
Rule is accordingly made absolute in the aforesaid terms with parties to bear their own costs.