ASHWINI KAVLEKAR Vs. THE STATE OF GOA

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 1st October, 2010 passed by Administrative Tribunal, Goa in MISC/APPLN/42 -09/LEAVE/LRA, MISC/ APPLN /43 -09/STAY/LRA and unregistered APPEAL/LRA/09 by which the Tribunal has refused to grant leave to appeal against the order dated 19th January, 2009 passed by the Deputy Collector and consequently dismissed the unregistered appeal. It is the case of the petitioner that she and her mother -in -law Mira Kavlekar are the tenants of the property 'FONTAINHAS' surveyed under survey no.11/7 and 11/5 of village Panelim, Tiswadi taluka. It is her case that her father -in -law was tenant in respect of the said property and after his death, respondent no.2 and petitioner are in enjoyment of the property as tenants. According to the petitioner, respondent no.2 - Mira Kavlekar, who is her mother -in -law is not in talking terms with her and presently respondent no.2 is not staying in the house situated in the said property.

(2.) THE petitioner challenged the judgment and order dated 19th January, 2009 by which the Deputy Collector directed respondent no.2 to demolish the huts existing in the property bearing Survey no.11/5 and restore the land to its original position within 3 days, failing which the Mamlatdar was directed to demolish the same and recover the costs incurred on the demolition from respondent no.2. The said order was passed pursuant to check list prepared by Mamlatdar of Tiswadi requesting the Deputy Collector to initiate action under Section 33 of the Goa, Daman and Diu Land Revenue Code, 1968 ('The Code' for short). According to Mamlatdar of Tiswadi, respondent no.2 - Mira Kavlekar had erected about 20 Kachcha temporary huts covering the area of 376 square meters during two years in the property surveyed under Survey no.11/5 thereby converting agricultural land to non -agricultural purpose without obtaining conversion sanad. The Deputy Collector gave opportunity of being heard to the respondent no.2 - Mira Shamba Kavlekar, but she did not avail of the same. The Deputy Collector held that the property was classified as rice land and consequently, in terms of Section 33 of the Code, the Deputy Collector directed to demolish the structures holding that regularization at that stage was out of question. The petitioner challenged this order before the Administrative Tribunal by filing appeal and filed the separate application seeking leave to appeal against the judgment passed by the Deputy Collector since she was not party to the proceedings before the Deputy Collector.

(3.) MR . Lawande, learned Counsel appearing for the petitioner submitted that the approach of the learned Tribunal in refusing to grant leave is patently unsustainable in law. He further submitted that the Tribunal has failed to appreciate that there were only huts constructed in the said property and the petitioner had established prima facie right in respect of the said huts and, therefore, leave ought to have been granted by the Tribunal. He further submitted that the Deputy Collector and the Tribunal have failed to appreciate that regularization of the huts constructed in the said property was possible in terms of the provisions of the Code and, therefore, the Tribunal ought to have granted leave to the petitioner to appeal against the judgment passed by the Deputy Collector. Mr. Lawande further reiterated the submissions made before the Tribunal and submitted that serious prejudice would be caused to the petitioner in the event the huts, which are in possession of the petitioner, are ordered to be demolished in terms of the judgment passed by the Deputy Collector, more particularly having regard to the fact that the petitioner was not heard by the Deputy Collector before passing the judgment. Mr. Lawande further submitted that the petitioner has shown prima facie right in respect of the huts, which are ordered to be demolished and, therefore, leave to file appeal against the judgment passed by the Deputy Collector ought to have been granted by the Tribunal. In support of his submissions, learned Counsel relied upon the judgment of Kerala High Court in the case of N. Ramchandran Potti Vs. Kumari Thankam K. K. and others; : 2004(3) KLT 183.