Writ Petition No. 45 of 2010

19th August, 2013

Petitioner Counsel: Mr. S.G. DESAI, Sr. Adv. with Mr. B. MAHATME
Respondent Counsel: Mr. J.E. COELHO PEREIRA, Sr. Adv. with Mr. V. KORGAONKAR

Cases Cited:
Rohidas Vithal Patil and others Vs. Sub-Divisional Officer (Revenue) Nandurbar and others, 1993 Bombay Civil Journal 431 [Para 10]

JUDGMENT

JUDGMENT :- Heard Mr. S. G. Desai, learned Senior Counsel appearing for the petitioners and Mr. J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent.

2. The above petition inter-alia seeks to quash and set aside the judgment dated 23.09.2009 passed in Land Revenue Appeal No. 225/2001 as well as to quash and set aside the notice dated 26.05.2010.

3. Briefly, the facts of the case as stated by the petitioners are that the petitioners fled an application before the Joint Mamlatdar of Salcete for mutation to enter their names in the record of rights pertaining to the property surveyed under no.128/10 of Cavellosim Village. The respondents filed their objections to such claim of mutation inter-alia alleging that the case of the petitioners is fabricated. The learned Joint Mamlatdar by order dated 29.11.2000 rejected the objections filed by the respondents and allowed the application for mutation filed by the petitioners. Being aggrieved by the said order, the respondents have preferred a First Appeal bearing Appeal No.2/2001 to the Dy. Collector and SDO, South Goa, Margao. The learned Dy. Collector and SDO by order dated 13.11.2001 dismissed the appeal filed by the respondents. Being aggrieved by the order of the learned Dy. Collector, the respondents preferred an appeal before the Administrative Tribunal which was to be disposed of by judgment dated 23.09.2009 whereby the appeal was allowed and the impugned orders of the Authorities below came to be quashed and set aside. Consequently, the Authorities were directed to restore the entries in the Form I & XIV in respect of the property bearing survey No.128/10 of Cavellosim Village. Being aggrieved by the said judgment, the petitioners have preferred the present Writ Petition.

4. Mr. S. G. Desai, learned Senior Counsel appearing for the petitioners has assailed the impugned judgment on the ground that the survey records in respect of the suit property bearing survey No.128/10 stands in the name of Geraldina Costa. The learned Senior Counsel pointed out that in view of the allotment of the property in the Inventory Proceedings which were initiated way back in the year 1955 wherein in the auction proceedings held therein on 03.05.1955 initiated upon the death of Pascoal Joaquim Milagres, the said property was taken up in auction by late father of the first two petitioners and father-in-law of the third petitioner. The learned Senior Counsel further pointed out that in the order passed in Land Acquisition Proceedings on 31.8.1971, the compensation for such acquisition was paid to the late father of the first two petitioners. The learned Senior Counsel further submits that the petitioners were in actual possession of the disputed land surveyed under No.128/10 and as such, before promulgation of the record of rights, the petitioners filed an application to get their names mentioned in the survey records. The learned Senior Counsel further pointed out that the first two petitioners filed an application inter-alia stating that the survey records are in the name of a non existing person known as Geraldina Costa who is shown as occupant in such proceedings. The learned Senior Counsel in support of his claim has pointed out that the petitioners have also produced a deed of succession dated 05.10.1998 and thereafter filed an application under Section 96 of the Land Revenue Code to enter their names in the survey records. The learned Senior Counsel further pointed out that in such proceedings after a public notice was issued calling for objections to the application filed by the petitioners, the respondents raised their objection which came to be rejected by order dated 29.11.2000. The learned Senior Counsel has thereafter taken me through the impugned judgment passed by the learned Tribunal and pointed out that the Second Appeal filed against the order of the Dy. Collector was not maintainable as according to him such appeal, if any, would lie before the Collector. The learned Senior Counsel further pointed out that as the said Geraldina Costa is a non existing person, the petitioners were entitled to file the proceedings for mutation and as such, the learned Tribunal was not justified to interfere in the impugned order. The learned Senior Counsel has taken me through the judgment of the learned Tribunal and pointed out that the learned Tribunal has erroneously appreciated the material on record and has wrongly allowed the appeal preferred by the respondents. The learned Senior Counsel as such submits that the impugned judgment passed by the learned Tribunal deserves to be quashed and set aside.

5. On the other hand, Mr. J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent has supported the impugned judgment. The learned Senior Counsel pointed out that admittedly the alleged claim of the petitioners was on the basis of an allotment took place way back in the year 1955 which was much before coming into force of the Land Revenue Code. The learned Senior Counsel further pointed out that in such circumstances the application under Section 96 of the Land Revenue Code itself was not maintainable. The learned Senior Counsel further pointed out that the mutation entries can be carried out by the authorities under the Land Revenue Code only with regard to a transaction or transfer which has taken place only after the coming into force of the Land Revenue Code. The learned Senior Counsel further pointed out that the petitioners do not claim any right from the said Geraldina Costa and as such, the question of seeking to include their names in mutation proceedings by deleting the name of Geraldina Costa is totally misplaced. The learned Senior Counsel further pointed out that the property according to the respondent belongs to Galdinho Costa, who is the uncle of the respondent, whose name is wrongly shown as Geraldina Costa. The learned Senior Counsel further pointed out that the respondent is in possession of the suit property and as such on the basis of documents produced by the respondent, it cannot be disputed that the respondent is entitled to object to the mutation sought to be carried out by the petitioners herein. The learned Senior Counsel further pointed out that in terms of Section 6 of the Land Revenue Code, the Dy. Collector also performs function as a Collector and as such, according to him, the appeal preferred before the learned Tribunal is very much competent. In any event, the learned Senior Counsel pointed out that such objection was not raised before the learned Tribunal and in any event, the Tribunal is higher in hierarchy to the Collector and as such by no stretch of imagination it can be said that the disposal of the appeal by the learned Tribunal is without inherent jurisdiction. The learned Senior Counsel as such submits that the above petition be rejected.

6. I have considered the submissions of the learned Senior Counsel appearing for both the parties. With the assistance of the learned Senior Counsel, I have gone through the impugned judgment and the material on record. On perusal of the survey records in respect of the disputed property surveyed under No.128/10, the occupant column discloses the name of Geraldina Costa. In the present case, it is not the contention of the petitioners that they have derived any title or interest therein from the said Geraldina Costa. It is also not in dispute that before filing of the application under Section 96 of the Land Revenue Code, the property surveyed under No.128/10 was already promulgated. On perusal of the application filed by the father of the petitioner nos. 1 and 2, the alleged claim of the petitioners to the disputed property is on the basis of the allotment which took place way back in the year 1955. Section 96 of the Land Revenue Code, inter-alia contemplates that any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, mortgagee, landlord, tenant or Government lessee of any land, shall report in writing his acquisition of such right. This itself suggest that such disposition or transfer is to be effected after the coming into force of the Land Revenue Code. In the present case, the father of the petitioners could not have filed an application under Section 96 of the Land Revenue Code on the basis of the allotment which took place in the year 1955. First of all, the contention of the petitioners that the said property is surveyed under No.128/10 cannot be accepted as the question of any survey number figuring in the allotment which was effected in the year 1955 would not at all arise. Mr. S. G. Desai, learned Senior Counsel appearing for the petitioners has pointed out that after the coming into force of the Land Revenue Code there was a deed of succession executed which shows that the petitioners have inherited the disputed property from the father. I am afraid that a deed of succession by itself cannot conclusively establish any right to the disputed property unless the property stood in the name of the deceased. Thus, the question of seeking any mutation on the basis of the deed of succession would not arise in the facts and circumstances of the present case.

7. It is well settled that in proceedings for mutation, the Authorities conducting the mutation entries are not entitled to decide the title of the parties. The decision in the mutation proceedings in any event do not create or defeat the title and are always subject to decision of the Civil Court with that regard. The scope of inquiry in mutation proceedings as such is very limited in terms of the provisions of the Land Revenue Code. In the present case, the claim of the petitioners for mutation is on the basis of an allotment which took place in the year 1955 when survey number of the property was not disclosed. Thus, it was not open to the petitioners to file an application for mutation in terms of Section 96 of the said Code. With that view of the matter, I find that the learned Tribunal has not committed an inherent error in passing the impugned judgment.

8. With regard to the contention of Mr. Desai, learned Senior Counsel appearing for the petitioners that the petitioners are in possession of the suit property and as such, the authorities under the Land Revenue Code were not justified to pass the impugned judgment, I find that there was no adjudication on that count carried out by the Authorities below. In any event, such adjudication cannot be carried out by the Authorities below while considering the mutation application.

9. With regard to the contention of Mr. Desai, learned Senior Counsel appearing for the petitioners to the effect that the appeal preferred before the learned Tribunal itself was not competent, I find on perusal of the impugned judgment passed by the learned Tribunal that no objection on that count was raised before the learned Tribunal. Apart from that, on going through the submissions advanced before the learned Tribunal no such submission disputing the jurisdiction of the learned Tribunal was raised before the learned Tribunal. On perusal of the provisions of Section 188 of the Land Revenue Code, under clause (a) thereof it states that an appeal challenging an order passed by an officer subordinate to the Sub-Divisional Officer, such appeal would lie to the Sub-Divisional Officer. In the present case, the respondent has availed of such appellate forum by filing an appeal before the Dy. Collector against the order of the Joint Mamlatdar. Sub-section (2) of Section 188 of the Land Revenue Code provides that if an appeal is filed under clause (a) of sub-section (1) of Section 188, the appeal would lie to the Collector whereas if an appeal is filed under clause (b) of sub-section (1) of Section 188, the appeal would lie to the learned Tribunal. In the present case, the respondent on the assumption that the impugned order was passed by the Dy. Collector in exercise of the powers of the Collector in accordance with Section 6 of the Land Revenue Code, has preferred such Second Appeal before the learned Tribunal. In such circumstances, it cannot be said that the appeal before the learned Tribunal lacks inherent jurisdiction. Though Mr. S. Desai, learned Senior Counsel may be justified to contend that such appeal ought to have been filed before the Collector, nevertheless, considering that the appeal was filed to the authority higher to the Collector being the learned Tribunal and as no objection on that count was raised by the petitioners, I find that on this ground there is no reason to interfere in the impugned judgment passed by the learned Tribunal under Article 227 of the Constitution of India. Apart from that, the petitioners have not shown any prejudice as occasioned to them on that count.

10. The learned Single Judge of this Court in the judgment reported in 1993 Bombay Civil Journal 431 in the case of Rohidas Vithal Patil and others V/s Sub-Divisional Officer (Revenue) Nandurbar and others has held at para 3 thus :

"3. Shri Naik, learned counsel appearing on behalf of the petitioners submitted that the revenue authorities were in error in entertaining the appeal preferred by respondent no.3 after a considerable lapse of period from the date of certifying the mutation entry. The learned counsel further submitted that even on merits the appellate authority should not have disturbed the mutation entry which was duly certified after notice to the parties. We are not inclined to examine this contention in exercise of our writ jurisdiction. It is now well settled by catena of decisions that the orders passed by the revenue authorities under the Land Revenue Code for effecting entries in the village records do not determine the title of the parties to the property. The entries in the record of rights neither creates title nor destroy the title. The petitioners have already instituted suit in the Civil Court and in which the issue as to validity of partition will be examined. Whatever decision the Civil Court records, will be binding upon the revenue authorities and the revenue authorities are bound to carry out the entries in the revenue records in accordance with the decision of the Civil Court. In these circumstances, it is not necessary to entertain the writ petition to examine the validity of the orders passed by the revenue authorities".

11. Taking note of the observations of the learned Single Judge of this Court as the proceedings for mutation cannot defeat or create title or right to the parties, I find that there is no reason for any interference by this Court under Article 227 of the Constitution of India. In the present case, it is also to be noted that the respondent has not sought to include his name in the survey records, and as such the records would stand in the name of Geraldina Costa. In such circumstances, both the parties are at liberty to initiate appropriate proceedings to get their rights adjudicated in accordance with law. As held by this Court, such dispute would have to be decided before the Civil Court. In case any party avails of such remedy, all contentions of both the parties on merits are left open.

12. Subject to the above, I find that no case is made out by the petitioners for interference in the impugned judgment. The petition stands accordingly rejected. Rule stands discharged.

Petition dismissed.