INDIRABAI BASANTRAI MELVANI; KHEMCHAND BASANTRAI MELVANI; MURLI BASANTRAI MELVANI Vs. CHIEF OFFICER; PANJIM MUNICIPAL COUNCIL; PRATAPSINGH RAOJI RANE; CHIEF SECRETARY; COLLECTOR OF GOA, PANAJI, GOA ; GOVERNMENT OF GOA, DAMAN & DIU; LAND ACQUISITION OFFICER, P W D CELL, ALTINHO, PANAJI GOA

JUDGEMENT

(1.) The petitioners in these two petitions are the same. In Writ Petition No. 125/86 they seek a writ of certiorari or writ in the nature of certiorari or other appropriate writ, direction or under Article 226 of the Constitution of India, on calling for the records of the case and considering the same to quash the letter of the Chief Officer of Panjim Municipal Council bearing No. 4/27/TS/85-PMC/1796 dated 15th May, 1986. In Writ Petition No.238/87 they pray for a writ or certiorari or writ in the nature of certiorari or appropriate writ under Article 226 of the Constitution of India on calling for the records and proceedings relating to acquisition of their land and on inquiring into the legality and propriety thereof to quash and set aside the acquisition proceedings and at the same time seek a writ of mandamus requiring the respondents to forthwith withdraw and cancel the notifications made purporting to acquire their land under Sections 4 and 6 of the Land Acquisition Act, 1894. Pending the hearing and final disposal of the petition, a motion was made for an order of injunction restraining the respondents from proceedings further or taking any steps in pursuance of the notifications issued. On making rule on 26th October, 1987, a partial injunction was granted restraining the respondents from taking over the possession of the land until final disposal of the petition, but however the respondents were directed to continue the acquisition proceedings. At some stage in Writ Petition No. 125/86 an order was made that it be heard alongwith the other petition subsequently filed as it was found that the disposal of the second petition may have a bearing on the final outcome of the first petition.

(2.) In fairness to the learned Counsel for the petitioners it must be stated that he is right when he says that ultimate result of the first petition depends upon the second petition. If the second petition succeeds the first petition will have to be allowed and rule accordingly made absolute. On the other hand, when the second petition fails the first petition becomes infructuous. There does not appear to be any dispute on this proposition and it can be straightway mentioned that if the second petition fails the first petition would not survive. However, Dr. Colaco, learned Counsel appearing for the Panjim Municipal Council and its Chief Officer in the first petition, has indeed urged that such result apart, since allegations have been made against the Council and the Chief Officer, he is bound to show that the action of the Chief Officer which is the bone of contention in the first petition is not borne out of mala fides and the letter issued was within the authority of the Chief Officer even though it mentions that an inquiry into the title to the land is at the behest of the Chief Minister and the Chief Secretary. We will examine this position on its turn after we come to the main controversial Writ Petition No. 238/87 in which admittedly neither the Panjim Municipal Council nor the Chief Officer is a party.

(3.) Regard being had to every aspect of the matter it is advantageous to state bare facts which to a large extent cannot be controverted. Petitioners claim title in respect of land admeasuring 1819 sq. mts. situated at Altinho, Panaji, Goa, surveyed under Chalta Nos.40, 40 A and 40B of P.T. Sheet No.76 of the City Survey from the late Basantrai Nihalchand Melvani. Late Basantrai who is the husband of the first petitioner and father of petitioners No. 2 and 3 by a Sale Deed dated 6th June, 1947, with the prior permission of the Government, purchased that property which was duly subsequently registered in his name. For that matter, his vendor was one Jose Inacio Souze e Pereira who had acquired this land as grant from the Government itself under title No. 82 AF-1935 dated 27th May, 1936, for the purpose of making construction. When the City Survey was taken up an area of 1,524 sq. mts. was shown as belonging to the late Basantrai but however, on a representation by him, the Inquiry Officer, City Survey located the difference in the areas concerned. Finally, by an Order dated 17th November, 1983, he confimed the title in favour of the late Basantrai in an area of 1,819 sq. mts. and accordingly effected the necessary changes in the records.