Full Judgment Text
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CASE NO.:
Appeal (civil) 4128 of 2006
PETITIONER:
Antonio S.C. Pereira
RESPONDENT:
Ricardina Noronha (D) by LRs.
DATE OF JUDGMENT: 14/09/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P. (Civil) No.8304 of 2005]
S.B. SINHA, J :
Leave granted.
Jose Joaquim de Noronha was the Count of Mayem. He was married
to one Filomena Correia Noronha. They had six children (two sons and four
daughters). Jose Joaquim had grandchildren through his son Dr. Francis
Antonio, who was married to Racardina. Filomena died in 1903. On her
death, in the inventory, half of the estate was allotted to Dom Jose Joaquim
de Noronha and the other half to their children. On or about 17/18.04.1929,
Dom Jose Joaquim de Noronha bequeathed his disposable quota of
properties allotted to him in the inventory upon the death of Filomena. He
died on 20.04.1929. Upon his death, his disposable quota of properties was
purportedly described as southern lot. Allegedly, the terms of the Will were
later altered on 20.06.1930. The legality of such a course of action,
however, is in dispute.
On or about 24.12.1964, the Goa Administration Evacuee Property
Act, 1964 (for short, ’the Act’) and the Rules framed thereunder came into
force. Sub-sections (1), (2) and (3) of Section 15 of the Act, which are
relevant for our purpose read as under :
"15. Restoration of evacuee property.-(1) [Save as
provided under section (3) and subject to such rules] as
may be made in this behalf, any evacuee or any person
claiming to be an heir of an evacuee may apply to
Government or to any person authorized by it in this
behalf (hereinafter in this section referred to as the
authorized person) that any evacuee property which has
vested in the Custodian and to which the applicant would
have been entitled if this Act were not in force, may be
restored to him.
(2) On receipt of an application under sub-
section (1) Government or the authorized person, as the
case may be, shall cause public notice thereof to be given
in the prescribed manner, and after causing an inquiry
into the claim to be held in such manner as may be
prescribed, shall -
(a) if satisfied \026
(i) that the conditions prescribed by rules made
in this behalf have been satisfied,
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(ii) that the evacuee property is the property of
the applicant, and
(iii) that it is just or proper that the evacuee
property should be restored to him,
Make an order restoring the property to the applicant, or
(b) if not so satisfied, reject the application :
Provided that where the application is rejected on
the ground that the evacuee property is not the property
of the applicant, the rejection of the application shall not
prejudice the right of the application to establish his title
to the property in a Civil Court, or
(c) if there is any doubt with respect to the title
of the applicant to the property, refer him to a Civil Court
for the determination of his title :
Provided that no order for the restoration of any
evacuee property shall be made under this sub-section
unless provision has been made in the prescribed manner
for the recovery of any amount due to the Custodian in
respect of the property or the management thereof.
(3) Upon the restoration of the property to the
evacuee or to the heir, as the case may be, the Custodian
shall stand absolved of all responsibilities in respect of
the property, so restored, but such restoration shall not
prejudice the rights, if any in respect of the property
which any other person may be entitled to enforce against
the person to whom the property has been so restored.
Provided that every lease granted in respect of the
property by or on behalf of the Custodian shall have
effect against the person to whom restoration is made
until such lease is determined by lapse of time or by
operation of law."
On 14.11.1967, the southern half of the estate of Mayem belonging to
Eurico Silva was declared to be ’evacuee properties’.
A suit was instituted before a learned Civil Judge, Senior Division,
Panaji, Goa, in the year 1993 for a declaration that the allotment in
Inventory Proceedings No.957 of 1929 to Eurico ceased to be
valid/effective.
It further appears that Ricardina, wife of Eurico, filed an application
before the Custodian for declaring southern half of Mayem as ’non-evacuee
property’. A prayer was also made for restoration of possession in her
favour. A suit being Civil Suit No.1/96/A was also filed restraining the
Custodian from releasing the suit properties in favour of Ricardina till
disposal of Suit No.154/1993/A. However, the said suit was withdrawn. By
an order dated 16.09.1997, the application filed by the Ricardina (since
deceased) was dismissed.
Maria Elsa bequeathed her estate in favour of her nephew, Antonio
S.C. Pereira, Appellant herein, by a will. She died on 21.11.1997.
The Civil Court passed an order of temporary injunction restraining
Respondent No.1 from transferring or alienating any part of the suit
properties, where-against an appeal has been filed, which is said to be still
pending.
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Respondent No.1, however, filed an application for review of the
order before Respondent No.3. In the said proceeding an objection was filed
by the Appellant herein. The said objection was rejected. A suit was filed
by the Appellant that the application filed by Respondent No.1 for
reconsideration of the said order dated 16.09.1997 by Respondent No.3 be
declared as null and void. The said suit was dismissed. An appeal there-
against is said to be pending.
Respondent No.3 by reason of an order dated 21.04.1999, however,
reviewed his earlier order dated 16.09.1997, declaring that the entire alleged
southern half of Mayem estate to be ’non-evacuee property’. An order was
also passed on 17.05.1999 for delivery of possession of the said properties in
favour of Respondent No.1.
The said order was, however, set aside by the Government of Goa by
an order dated 14.02.2000. Respondent No.1 questioned the correctness of
the said order passed before the High Court.
Original Respondent No.1 expired on 22.11.2001 and her heirs and
legal representatives were brought on records in the writ proceedings before
the High Court. By reason of the impugned judgment dated 22.12.2004, the
High Court while setting aside the order of the Government of Goa, Daman
and Diu dated 14.02.2000 purported to have entered into the disputed
questions of title arising by and between Appellant and Respondent No.1.
Contention of Mr. T.R. Andhyarujina, the learned Senior Counsel
appearing on behalf of the Appellant was that the High Court committed a
serious error in entering into the question of disputed question of title in the
writ proceedings particularly when a civil suit is pending decision before a
competent Civil Court since 1993.
Mr. Mukul Rohtagi, the learned Senior Counsel appearing on behalf
of Respondent No.1, however, would submit that while the Civil Court may
determine the disputed question of title, but the judgment of the High Court
should be directed to be implemented by Respondent No.3.
According to the learned counsel, Respondent No.3 has the requisite
jurisdiction to direct restoration of property in terms of Section 15 of the Act
and as such this Court should not pass any order which would come in the
way of the said authority from exercising his statutory power.
The High Court by reason of the impugned judgment, inter alia,
opined that the order dated 21.04.1999 passed by Respondent No.3 was not
vitiated in law as the application filed by the said Respondent which came to
be rejected by an order dated 16.09.1997, had not been determined as was
required under Section 15 of the Act, directing :
"\005if the legal representatives of Ricardina apply for
hearing of the said application on merits within a period
of four weeks by taking steps to comply with the
requirements of Rule 14(2) and (3) of the rules, we direct
the State Government to decide the said application
afresh on its own merits. The restoration application may
be decided as expeditiously as possible and preferably
within a period of six months after compliance. We
make it clear that the respondent no.3 has no title, as at
present, to the share of Eurico in the southern half
property, i.e. the subject property."
It is now trite that ordinarily a writ court would not go into a disputed
question of title. We have noticed some of the issues pending before
different courts only for the purpose of showing that the parties are at
loggerheads as regards the title of the property and in particular the legality
or validity of the alterations in the terms of the Will.
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Before the High Court, the order of the Government of Goa was in
question. The High Court was of the opinion that both the orders dated
16.09.1997 as well as 21.04.1999 were not passed by a competent authority
in terms of Section 15 of the Act and as such they were void ab initio.
The High Court, however, proceeded to hold that the matter is
required to be considered afresh by the Government or an authorized officer.
While, however, issuing the said direction, the court entered into a side
issue, namely, title of the successor of Respondent No.1 which, with respect,
was not warranted. The dispute in regard to the title of the properties is
pending decision in Suit No.154 of 1993. The High Court, thus, should
have allowed the Civil Court to go into the said question.
The statutory scheme under the said Act clearly shows that the
question of title can be determined by the Civil Court and not by the
administrator or the Government of Goa.
The statute may not contain any explicit provision to hear a third party
but it is not excluded either. The principle of natural justice as well as that
of pro interesse suo would be applicable in such a situation.
It has not been disputed that the Civil Court would be the final
authority in this behalf. If that is so, the Administrator would be bound by
the judgment of the Civil Court.
We have furthermore noticed hereinbefore that the Appellant had not
been heard before the Custodian. If he is claiming title over the property,
indisputably he would suffer substantial injury, if possession is restored in
favour of Respondent No.1 herein. The Act also contemplates determination
of disputed question of title by the Civil Court.
Keeping in view the peculiar facts and circumstances of this case, we
are of the opinion that with a view to do complete justice between the
parties, the following directions shall be issued :
(i) The Civil Court would dispose of Suit No.154 of 1993 as
expeditiously as possible and preferably within a period of six months from
the date of receipt of a copy of this order, without being in any way
influenced by the observations made by the High Court;
(ii) The Civil Court shall not grant any adjournment to the parties,
save and except for sufficient and cogent reasons;
(iii) The appropriate authority shall consider the application filed by
the Respondents herein after the decision of the said suit in accordance with
law.
(iv) In the said proceedings, the Appellant may also be heard.
(v) It would be open to the parties to raise all contentions before
the said authority.
The appeal is allowed to the extent mentioned hereinabove. The
parties, in the facts and circumstances of the case, shall pay and bear their
own costs.