Sitabai Shantaram Talawnekar vs Custodian Of Evacuee Property . on 25 February, 2020


Supreme Court of India

Sitabai Shantaram Talawnekar vs Custodian Of Evacuee Property . on 25 February, 2020

Author: 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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C.A.Nos.8802-8803 of 2013 etc.

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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C.A.Nos.8802-8803 of 2013 etc.

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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