SURYAKANT DATTA VADIEKAR Vs. DHARAM KUTTI

JUDGEMENT

(1.) The petition is directed against the order of the Aval Karkun, Record of Rights, Panaji, dated 13-3-1985 in Dispute Case No. 361 of Chorao village whereby the learned Aval Karkun has allowed the application of the respondent No. 2 (hereinafter called the respondent) dated 9-12-1978 and caused the entry in the "Other Rights" column of Survey No. 62/4 to be deleted. The subject-matter of the petition is the property "Catol" situated at Chorao, Tiswadi Taluka, surveyed under Nos. 62/4 and 62/5. Survey No. 62/4 is a cashew garden and Survey No. 62/5 is a paddy field.

(2.) The case of the petitioner is that his name was entered as tenant of Survey No. 62/5 in the Index of Land, in the "tenants" column. In respect of Survey No. 62/4 there was an entry in the name of the petitioner in the column reserved to "Other Rights". The entry was "Cashew trees on rent to Suryakant Datta Vadiekar". Suryakant Datta Vadiekar is the petitioner. In respect of the same survey and in its column 8 there were two entries "cowshed" and "house". Column 7 was showing total area of cowshed as 0025 sq. meters and 0025 sq. mts. also in respect of the house. When the Index of Land was kept for inspection on 9-12-1978 an application was made on behalf of the respondent who is the owner of the land by his mother raising objection to certain entries. In the said letter on behalf of the respondent his mother has stated that "In the Survey No. 62/4 Karabhat, Chorao, marked cowshed and a house, whereas the cowshed and the house are non-existent, as was observed and recorded Survey Karkoon and other Surveyors. Therefore the said cowshed and the house have to be cut off from the survey records" (sic). The petitioner states that although notice was given to him of this application he did not file any reply because he had no objection in the deletion sought for by the respondent. Thereupon the statement of one Prudente Fernandes, the constituted attorney of the respondent, was recorded by the Aval Karkun on 13-3-1985 and on the same day the petitioners statement was also recorded during which he purportedly said that he had no objection to delete his name from the "Other Rights" column of survey No. 62/4 as presently there was no structure etc. held by him in the said Survey number. Thereafter it was only after the promulgation of the Record of Rights that the petitioner came to know of his name having been deleted from the column "Other Rights". It is further the case of the petitioner that in the result the Index of Land shows that the entry regarding "cowshed" and "house" continues as it was while the entry on the "Other Rights "column being "Cashew trees on rent to Suryakant Datta Vadiekar" is bracketed. The said Index of Land certified copy whereof was exhibited by the petitioner at page 29 of the paper-book indicates that the said bracketing or deletion of the entry was done as per D.C. No. 361. It was also stated by the petitioner that by the time he came to know about the deletion of the entry to enable to know who is the owner of the adjoining land only on 21st August, 1987 he made an application to the Aval Karkun for review of the order directing the deletion of the entry along with the application for condonation of delay. In response the petitioner received a communication from the Mamlatdar of Record of Rights dated 8-12-1987 stating that no review could be considered at that stage as the Survey records of Chorao village had been already promulgated. Hence, since review was not possible the petitioner filed an appeal to the Deputy Collector and Sub-Divisional Magistrate, North Goa. It seems that the respondent raised a preliminary objection in this appeal regarding limitation which was overruled by the Deputy Collector vide judgment dated 13-9-1988 in Appeal No. RTS/APL/1/88. This decision of the Deputy Collector holding the appeal filed within time was however set aside by the Additional Collector by judgment and order dated 12th July, 1989 in Case No. LRC/AC/APL/20/88. Against this order of the Additional Collector an appeal was filed by the petitioner before the Administrative Tribunal and thereafter withdrawn. Hence this Writ Petition seeking to challenge the order on behalf of the Aval Karkun of the Record of Rights.

(3.) Shri Lotlikars learned counsel for the petitioners first submission is that the impugned order of the Aval Karkun shows gross misdescription both with regard to the reference made to the respondent s application being also misconceived in respect of the facts recorded by him during the course of the enquiry. It was further submitted that both the petitioner s appeal as well as the revision filed after the promulgation of the Record of Rights were obviously not maintainable once after the said promulgation only a suit for declaration would lie as appeals and revisions had to be filed within a prescribed period of time before the promulgation. Therefore, the learned counsel stated, none of the orders passed in this revision had adjudicated in any case or at any rate upon the merits of the petitioner s claim. Consequently there was no question of the order of the Aval Karkun having merged with a subsequent order passed in the said appeal or revision. Thus, the said order of Aval Karkun stands till today. The learned counsel urged that this being the position this Court has to examine whether it could interfere with the said order of the Aval Karkun under Articles 226 and 227 of the Constitution. In this respect, the learned counsel submitted, two aspects would become relevant. First is to find out whether the petitioner was aware of the order when it was passed by the Aval Karkun purportedly in the presence of the petitioner at the time it was delivered by him. The second one was to determine as to whether notwithstanding the contents of the said order the petitioner was aware of its exact nature. With regard to the first aspect it was contended that if the petitioner was aware that his name in the column of "Other Rights" was ordered to be deleted then it was his right to challenge the order in appeal and get it set aside. If the petitioner had a statutory right to appeal and inspite of that had allowed the remedy to lapse the question would arise as to whether this Court had any scope to intervene at the petitioners request to set aside the order against which he has failed to appeal. With regard to the second aspect it was urged that if the petitioner was not aware of the nature of the order, whether this Court was justified in interfering to set it aside after such a long period of time of nearly about 5 years, that is to say, from March 1985 to April 1990.