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Supreme Court of India
Sitabai Shantaram Talawnekar vs Custodian Of Evacuee Property . on 25 February, 2020Author: R. Subhash Reddy
Bench: Mohan M. Shantanagoudar, R. Subhash Reddy
C.A.Nos.8802-8803 of 2013 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8802-8803 OF 2013
Sitabai Shantaram Talawnekar & Ors. …..Appellants
Versus
Custodian of Evacuee Property & Ors. …..Respondents
WITH
Contempt Petition(C)Nos.187-188 of 2012
In
Civil Appeal Nos.8802-8803 of 2013
[Arising out of S.L.P.(C)Nos.35980-35981 of 2009]
JUDGMENT
R. Subhash Reddy, J.
Civil Appeal Nos.8802-8803 of 2013
1. These civil appeals are filed, aggrieved by the judgment and order
dated 08.05.2009 passed in W.P. No.142 of 2009 and the judgment and
order dated 09.09.2009 passed in L.P.A. No.14 of 2009 by the High
Court of Bombay at Goa.
2. The subject matter of dispute relates to property known as
‘Conde-Mayem’. The said property, covered by Survey Nos.113, 116,
114 and 115/1, 2 and 3, is situated at Mayem, Bicholim in the State of
Signature Not Verified
Digitally signed by
GULSHAN KUMAR
Goa. The said property originally belonged to one Eurico de Soza
ARORA
Date: 2020.02.25
16:43:11 IST
Joquem Noroana. After the liberation of Goa the said property was
Reason:
declared as evacuee property and same was under the supervision of
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C.A.Nos.8802-8803 of 2013 etc.
the Custodian of Evacuee Property, under provisions of the Goa, Daman
and Diu Administration of Evacuee Property Act, 1964 (for short,
‘Evacuee Property Act’). The appellants claim to be in possession of the
aforesaid properties as tenants of the Custodian. When there was a
dispute between the predecessors of the appellants and the 2nd
respondent (now represented by his legal heirs), the predecessors of the
appellants filed Civil Suit No.126 of 1984 on the file of Civil Judge,
Senior Division, Bicholim praying for permanent injunction restraining
the respondent-defendant from interfering with the suit property. On
15.07.1985 the Civil Judge, Senior Division, Bicholim granted ex-parte
injunction in the civil suit and it is stated that the appeal filed before the
District Judge by the 2nd respondent ended in dismissal. On 05.11.1984
respondent no.2 filed an application before the Court of Custodian of
Evacuee Property, Panji, claiming that he was in possession of the
portion of cashew garden and the appellants were trying to evict him as
he was not paying the exorbitant rent demanded by the appellants. Vide
order dated 21.01.1986 the Custodian of Evacuee Property dismissed
the application of respondent no.2. Alleging that inspite of injunction
orders obtained by the appellants in Civil Suit No.126 of 1984,
respondents were interfering with the property in question, the
appellants got police protection from the trial court vide order dated
29.08.1989. Thereafter the 2nd respondent filed Regular Civil Suit No.60
of 1990 in respect of portion of property covered by Survey Nos.114 and
116 and the said suit ended in dismissal vide order dated 18.12.1992.
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C.A.Nos.8802-8803 of 2013 etc.
3. As per Section 56 of Goa, Daman and Diu Agricultural Tenancy
Act, 1964 (hereinafter referred to as, ‘the Tenancy Act’), the Act was not
applicable in respect of evacuee properties. By virtue of Goa
Administration of Evacuee Property (Amendment) Act, 1989, the
provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were
made applicable to the evacuee properties. In view of such amendment,
respondent no.2 filed an application under Sections 7 and 8-A of the
Tenancy Act seeking declaration that he is a tenant of the portion of the
suit properties covered in Civil Suit No.126 of 1984. The primary
authority, i.e., Joint Mamlatdar-I, Bicholim, Goa vide order dated
30.08.2002 allowed the application declaring the 2 nd respondent as a
tenant. The said order is confirmed by the appellate authority vide order
dated 08.01.2003 and further confirmed by Administrative Tribunal vide
order dated 30.12.2008. When the appellants have filed writ petition in
W.P.No.142 of 2009 questioning the aforesaid orders, learned Single
Judge of the High Court of Bombay at Goa dismissed the writ petition
vide order dated 08.05.2009. When the said order is appealed before
the Division Bench, by way of Letters Patent Appeal, same is dismissed
as not maintainable. Though the Division Bench of the High Court did
not go into merits of the matter, but in view of the long standing dispute
between the parties, we have heard the matter on merits with the
consent of the learned advocates appearing on both sides.
4. Learned senior counsel Sri Siddharth Bhatnagar appearing for the
appellants has contended that the application of the 2 nd respondent
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C.A.Nos.8802-8803 of 2013 etc.
claiming tenancy was allowed without recording any valid reasons in
support of the claim. It is submitted that the alleged oral compromise is
made basis by the primary authority for allowing the application without
examining the relevant aspects as per the provisions of Tenancy Act for
declaration of tenant. It is submitted that there is no evidence on record
to show that 2nd respondent was a ‘tenant’ or ‘deemed tenant’ within the
meaning of the Tenancy Act and rules made thereunder to allow his
application for declaration of tenancy rights. It is further submitted that
undisputedly land in question is an evacuee property governed by the
provisions of the Evacuee Property Act and that though originally the
Tenancy Act was not applicable to evacuee properties but only by virtue
of Amending Act 19 of 1989, the said Act is made applicable to evacuee
properties for tenancies created by Custodian. It is further submitted
that in absence of any acceptable evidence on record to show that 2 nd
respondent was tenant of the land in question his claim was erroneously
allowed by the primary authority and no other authority, namely,
appellate and revisional authorities and the learned Single Judge of the
High Court have considered the matter in proper perspective and have
confirmed the order mechanically.
5. On the other hand, Sri P. Venugopal, learned counsel appearing
for the legal heirs of the 2nd respondent, has submitted that there is a
concurrent finding by all the authorities which is confirmed by learned
Single Judge of the High Court, as such, there are no grounds to
interfere with the same. It is submitted that the parties are related and
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C.A.Nos.8802-8803 of 2013 etc.
the 2nd respondent was in possession of a portion of the land which is
covered by the application claiming tenancy rights and the oral evidence
led before the primary authority confirms the possession of the 2 nd
respondent. It is further submitted that in view of the available oral and
documentary evidence on record, the primary authority has declared
tenancy in favour of 2nd respondent and there are no grounds to interfere
with the impugned orders passed by the High Court confirming the
orders of the statutory authorities.
6. Having heard learned counsels on both sides, we have perused
the impugned order and other material placed on record.
7. The Goa, Daman and Diu Agricultural Tenancy Act, 1964 is an
Act to provide for the regulation of the terms of tenancy with respect to
agricultural lands in the Union Territory of Goa, Daman and Diu. Section
2 sub-section (23) of the Tenancy Act defines the term, ‘tenant’. As per
the aforesaid Section ‘tenant’ means a person who on or after the date
of commencement of the Act holds land on lease and cultivates it
personally and includes a person who is or was deemed to be a tenant
under the Act. Section 4 of the Tenancy Act deals with the ‘persons
deemed to be tenants’. As per Section 4 deemed tenant is a person
lawfully cultivating any land belonging to another person on or after the
1st of July, 1962 but before the commencement of the Act, i.e.,
08.02.1965. Section 56 of the Act originally exempted certain categories
of lands, including the lands covered by the Goa, Daman and Diu
Administration of Evacuee Property Act, 1964.
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C.A.Nos.8802-8803 of 2013 etc.
8. The Goa, Daman and Diu Administration of Evacuee Property Act,
1964 and the Goa, Daman and Diu Agricultural Tenancy Act, 1964 are
amended by the Amending Act 19 of 1989, extending the benefits of
Tenancy Act to the evacuee properties. As per Section 2(kkk) of the
Amending Act, ‘tenancy’ means the relationship existing between the
tenant and the Custodian; and as per Section 2(kkkk) ‘tenant’ means a
person who on or after the date of commencement of the Goa
Administration of Evacuee Property (Amendment) Act, 1989, holds land
and cultivates it personally but does not include a person who holds land
on lease for the purpose of plucking the fruits only. Section 3 of the
Amending Act amends Section 3 of the principal Act, to override other
laws. As amended, Section 3 of principal Act reads as under :
“3. Act to override other laws.—
(1) On and from the date of coming into force of the Goa
Administration of Evacuee Property (Amendment) Act, 1989,
the provisions of the Goa, Daman and Diu Agricultural
Tenancy Act, 1964 (Act 7 of 1964), for the time being in
force, shall apply in respect of agricultural land and tenancies
created by the Custodian.
(2) The provisions of this section shall, save as otherwise
expressly provided, have effect notwithstanding anything to
the contrary contained in any instrument having effect by
virtue of any such law.”
A reading of definition of ‘tenancy’ and ‘tenant’ coupled with the
amended Section 3 of the principal Act makes it clear that the provisions
of Goa, Daman and Diu Agricultural Tenancy Act, 1964 are made
applicable only to agricultural land and tenancies created by the
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Custodian. There is yet another important aspect which has bearing on
the issue is the provision under Section 32 of the Evacuee Property Act
which reads as under :
“32. Transactions relating to evacuee property void in
certain circumstances.-(1) As from the commencement of
this Act, no transfer of or transaction in respect of any
property belonging to a Portuguese national shall be valid
unless it is made with the previous approval of the Custodian.
(2) Subject to the other provisions contained in this Act, every
transaction entered into by any person in respect of property
declared or deemed to be declared to be evacuee property
within the meaning of this Act shall be void unless entered
into by or with the previous approval of the Custodian”
Section 32, as referred to above, makes it clear that any transfer or
transaction in respect of any evacuee property is not valid unless it is
made with the previous approval of the Custodian.
9. From a perusal of the impugned orders passed by the primary
authority, appellate authority and the revisional authority and the order of
the learned Single Judge of the High Court, we are of the view that the
claim of the 2nd respondent is allowed without recording any valid
reasons based on acceptable evidence to prove the tenancy as claimed
by him. The 2nd respondent has not claimed tenancy directly from the
Custodian, in absence of which he cannot have the benefit of Amending
Act 19 of 1989. Amending Act 19 of 1989 which amends the Goa,
Daman and Diu Administration of Evacuee Property Act, 1964 and the
Goa, Daman and Diu Agricultural Tenancy Act, 1964 makes it clear that
‘tenancy’ means the relationship existing between tenant and the
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C.A.Nos.8802-8803 of 2013 etc.
Custodian. The 2nd respondent has not claimed tenancy on the basis of
relationship existing with the Custodian. Further, by virtue of Section 3,
as amended, the provisions of Tenancy Act are made applicable only to
agricultural land and tenancies created by the Custodian. The said
provision is a provision overriding other laws. Even as per the claim of
the 2nd respondent he was not in possession at the time of making the
application but it was his case that he was dispossessed after the
appellants’ predecessors obtained injunction orders in Civil Suit No.126
of 1984. As such, he has claimed to be a deemed tenant within the
meaning of Section 4 of the Tenancy Act. To establish deemed tenancy
under Section 4 of the Tenancy Act, one has to prove that person
claiming deemed tenancy was in possession on or after the 1st of July
1962 and before the commencement of the Act, i.e., 08.02.1965. The
2nd respondent has not filed any acceptable documentary evidence to
prove that he was in possession during the relevant time to claim
tenancy. Even to claim sub-tenancy or transfer from the predecessor of
the appellants, who was admittedly tenant from the Custodian under the
provisions of the Evacuee Property Act, there was no prior approval
from the Custodian as contemplated under Section 32 of the Evacuee
Property Act. The primary authority, though referred to various
objections raised by the appellants herein, has allowed the application
based on the alleged oral settlement by the appellants’ predecessor and
the 2nd respondent. Such oral settlement which is disputed by the
appellants cannot be the basis for grant of tenancy rights on the
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application made by the 2nd respondent. Even the appellate and
revisional authorities have not considered the relevant aspects and
disposed of the appeal and revision. Learned Single Judge of the High
Court, by giving credence to the inspection report and excise licences
obtained by 2nd respondent, has confirmed the order passed by the
authorities.
10. For the aforesaid reasons, we allow these appeals and set aside
the impugned orders, consequently the application filed by the 2nd
respondent before the Joint Mamlatdar-I of Bicholim in Case
No.JM/-1/TNC/19/95 stands dismissed.
Contempt Petition(C)Nos.187-188 of 2012
11. In the Special Leave Petitions, while issuing notice on 14.12.2009,
this Court has ordered to maintain status quo with regard to possession
of the lands in question. Alleging that legal representatives of the 2 nd
respondent have violated the said order, appellants have moved the
contempt petitions. In view of the final orders passed by this Court in
these civil appeals it is not necessary to pass any orders in these
contempt petitions at this stage. Accordingly, these contempt cases are
closed.
………….…………………………………J.
[L. NAGESWARA RAO]
….…………………………………………J.
[R. SUBHASH REDDY]
New Delhi.
February 25, 2020.
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