CAETANO SOUZA (SINCE DECEASED) Vs. SHRI AUGUSTO SOUZA

JUDGEMENT

(1.) The challenge in this petition, under Article 227 of the Constitution of India, is to the concurrent orders passed by the learned Collector and the Administrative Tribunal, Goa, by which the order of the Awal Karkun passed on 05/06/1992, carrying out mutation of the name of the petitioner in respect of the subject plot No.8 has been set aside.

(2.) The brief facts are that the petitioner (now deceased) Caetano Souza had filed Special Civil Suit No.26/1989/A before the learned Senior Civil Judge at Panaji, in which, the Archdiocese of Goa, Daman and Diu (the landlord) was defendant no.1, while one T.D. Vernekar was the defendant no.2. The said suit was filed for declaration, permanent injunction and cancellation of the Sale Deed. In the said suit, now deceased Caetano Souza had sought a declaration that he is a tenant of the suit property and a deemed owner and consequently, the Sale Deed, alleged to have been executed between the defendant nos. 1 and 2 in respect of the suit property, being null and void and for permanent prohibitory injunction etc. It appears that the said suit was decreed in view of the consent terms. The relevant clauses (c) and (d) of the consent terms read thus :

(3.) On the basis of these consent terms, the petitioner was successful in getting the order of mutation from the Awal Karkun on 05/06/1992. It appears that the respondents Augusto Souza and Augustinho Carvalho, who were adjacent occupiers, challenged the order of mutation before the Deputy Collector, who by an order dated 21/07/1992, allowed the appeal and set aside the order passed by the Awal Karkun. It appears that before the Deputy Collector, the very validity of the consent decree passed by the Civil Court, was questioned on the ground that the Civil Court could not have recorded the consent terms in view of the provisions of the Goa, Daman, Diu Agricultural Tenancy Act, 1964 (the Act, for short). The Deputy Collector accepted the contention on behalf of the appellants holding that the jurisdiction to decide the issue of tenancy was, at the relevant time, vested with the Mamlatdar and the Civil Court could not have decided the said issue, the consent notwithstanding. The Deputy Collector found that the decree was a nullity and as such, can be ignored and challenged in a collateral proceedings, for which the Deputy Collector placed reliance on the decision in the case of Official Trustee, West Bengal and others Vs. Sachindra Nath Chatterjee and Anr; AIR 1969 SC 823. In the result, the Deputy Collector found that the order of the Awal Karkun, (which is primarily based on the consent decree, passed by the Civil Court, which is a nullity), deserves to be set aside. The Administrative Tribunal has concurred with the said finding, which brings the petitioner before this Court.