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Saturday, July 26, 2014

Section 4 of the Mamlatdar's Court Act - & Civil Suit - blocking of traditional easementary access - alleged that on compromise alternative access was given - since it can not be ascertained in writ petition, the High court gave liberty to approach the Mamlatdar for ascertain of alternative access and for completion certificate - it was misunderstood as if the High court remanded to reopen the lis agreed to be withdrawn -Apex court held that High court not given any directions to reopen the lis and gave direction to give completion certificate and we set aside the judgment and order dated 18th November, 2013 with liberty to respondent to move before the Court of competent jurisdiction, if completion certificate has not been issued by the Village Panchayat, Calagute in terms of the order passed in Writ Petition No.422/2008 or if the respondent did not satisfy with such completion certificate.= ANTONETTO JOHN D’SOUZA @ JOHNNY D'SOUZA … APPELLANT VERUS MRS. ALDILA BRAGANZA … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41728

Section  4  of  the  Mamlatdar's  Court  Act - & Civil Suit - blocking of traditional easementary access -  alleged that on compromise alternative access was given - since it can not be ascertained in writ petition, the High court gave liberty to approach the Mamlatdar for ascertain of alternative access  and for  completion certificate - it was misunderstood as if the High court remanded to reopen the lis agreed to be withdrawn -Apex court held that High court not given any directions to reopen the lis and gave direction to give completion certificate and we set aside the judgment  and  order  dated 18th November, 2013 with liberty to respondent to move before the  Court  of competent jurisdiction, if completion certificate has  not  been  issued  by the Village Panchayat, Calagute  in  terms  of  the  order  passed  in  Writ Petition No.422/2008  or  if  the  respondent  did  not  satisfy  with  such completion certificate.=

 The respondent alleged the blocking  of  her  traditional  easementary
access by the  appellant  by  constructing  compound  walls.
Initially,  an
application under Section  4  of  the  Mamlatdar's  Court  Act  (hereinafter
referred to as the “Act”) was filed by the respondent before  the  Mamlatdar
with regard to the said obstruction.  which was dismissed for default and later restored =
The appellant filed a Revision Application before  the  Collector
against the order of restoration.
In the said  Revision  Application  an  ex
parte order was passed by the Additional Collector-I, Panaji on  11th  July,
2008 directing the Mamlatdar,  Bardez  to  open  the  gate  and  remove  the
obstacles like the compound walls between Survey  Nos.163/1  and  163/2  and
Survey Nos.164/1 and 163/10, 163/1,163/2 and 163/4, to make openings  enough
for free movement of an ambulance to  enable  the  respondent  to  take  her
father-in-law for medical treatment. =
The appellant challenged  the  said  order  by  filing  Writ  Petition
No.422/2008 before the High  Court  and  obtained  an  order  of  stay.
The
respondent and her father-in-law filed  an  appeal  from  Order  No.59/2008,
against the order dated 13th February, 2008 passed by  the  Civil  Court  at
Mapusa, whereby the  application  for  temporary  and  mandatory  injunction
filed by the respondent and her father-in-law in Civil Suit No.134/07/B  was
dismissed. =
The said writ petition and appeal from order came to be  disposed
of by an order dated 4th May, 2009 which is as under:
“Mr. Usgaonkar, learned Senior Counsel applies for withdrawal of the  Appeal
from Order No.59/2008 as the appellants have  been  granted  a  satisfactory
alternate access by the Panchayat at Calangute.
The owner  of  the  property
through which the access is now granted has also given no  objetion  to  the
grant  of  access  to  the  appellants  as  well  as  the   other   members.
Consequently, the petitioner's relief for setting aside the  orders  of  the
Mamlatdar dated 7.3.2008 and  11.7.2008  is  required  to  be  granted.
The
appellants in Appeal from Order No.59/2008 concedes  that  the  lis  in  the
Mamlatdar Court's  no  longer  remains.
Mr.  Usgaonkar  on  behalf  of  the
appellants undertakes to withdraw the application in the Mamlatdar's  Court.
However, the office of the Village  Panchayat,  Calangute  shall  issue  the
completion certificate requested  by  the  appellants  which  could  not  be
issued due to the election. The completion certificate shall  be  issued  on
or  before  31.05.2009.
The  Writ  Petition  No.422/2008  is  disposed   of
accordingly and Appeal from Order No.59/2008 is allowed to be withdrawn.”=

filed a re open petition before the Mamlatdar - was dismissed and revision was also dismissed - writ filed -
After  hearing  the
parties by the impugned judgment, the High Court  while  setting  aside  the
order passed by the  Mamlatdar  and  the  Revisional  Authority  passed  the
following order:
“25. In the result, the petition partly succeeds.

(a)   The impugned orders  dated  28/03/2013  passed  by  the  Mamlatdar  of
Bardez  and 20/09/2013 passed by the Additional Collector-  II,  North  Goa,
are quashed and set aside.

(b)   The matter is remanded to the respondent No.2 to  decide  whether  for
reasons stated in the  application  and  in  accordance  with  law,  he  has
jurisdiction/powers   to    re-open    the    said    proceedings    bearing
No.MAM/BAR/MCA/4/2007 and if he comes to the conclusion  that  he  has  such
powers, then to adjudicate on the grievance of the  petitioner  with  regard
to the altenate access.

(c) If the respondent No.2 finds that the said  grievance of the  petitioner
is true and on account of the same and for other  reasons,  he  can  re-open
the proceedings,  then  he  shall  proceed  to  dispose  of  the  said  case
No.MAM/BAR /MCA/4/2007, in accordance with law, expeditiously.

(d)   The contentions of the parties are kept open  for  being  made  before
the respondent No.2.

(e)   Parties to appear before the respondent No.2  on  09/12/2013  at  3.00
p.m.”
After  hearing  the
parties by the impugned judgment, the High Court  while  setting  aside  the
order passed by the  Mamlatdar  and  the  Revisional  Authority  passed  the
following order:
“25. In the result, the petition partly succeeds.

(a)   The impugned orders  dated  28/03/2013  passed  by  the  Mamlatdar  of
Bardez  and 20/09/2013 passed by the Additional Collector-  II,  North  Goa,
are quashed and set aside.

(b)   The matter is remanded to the respondent No.2 to  decide  whether  for
reasons stated in the  application  and  in  accordance  with  law,  he  has
jurisdiction/powers   to    re-open    the    said    proceedings    bearing
No.MAM/BAR/MCA/4/2007 and if he comes to the conclusion  that  he  has  such
powers, then to adjudicate on the grievance of the  petitioner  with  regard
to the altenate access.

(c) If the respondent No.2 finds that the said  grievance of the  petitioner
is true and on account of the same and for other  reasons,  he  can  re-open
the proceedings,  then  he  shall  proceed  to  dispose  of  the  said  case
No.MAM/BAR /MCA/4/2007, in accordance with law, expeditiously.

(d)   The contentions of the parties are kept open  for  being  made  before
the respondent No.2.

(e)   Parties to appear before the respondent No.2  on  09/12/2013  at  3.00
p.m.”
 No direction was issued by the High Court to reopen  the  matter.  The
High Court has also not directed  the  Mamlatdar,  Bardez  to  consider  the
question  as  to  whether  he  has   jurisdiction/powers   to   reopen   the
proceedings. Such being the position, it was not open for the High Court  in
a subsequent writ petition  to  pass  any  order  enlarging  the  order  and
direction  issued  by  the  High  Court  in  the   earlier   Writ   Petition
No.422/2008.  At  best,  the  High  Court  could  have  asked  the   Village
Panchayat, Calagute to issue completion certificate, if  the  same  had  not
been issued pursuant to the direction of the High Court dated 4th May,  2009
in Writ Petition No.422/2008. It is only after issuance  of  the  completion
certificate, the respondent could have  decided  whether  she  is  satisfied
with such completion certificate or not. The respondent having accepted  and
given undertaking to withdraw the application  before  the  Mamlatdar  Court
there was no question of remitting the matter to the Mamlatdar.
12.   For the reason aforesaid, we set aside the judgment  and  order  dated
18th November, 2013 with liberty to respondent to move before the  Court  of
competent jurisdiction, if completion certificate has  not  been  issued  by
the Village Panchayat, Calagute  in  terms  of  the  order  passed  in  Writ
Petition No.422/2008  or  if  the  respondent  did  not  satisfy  with  such
completion certificate.
13.   The appeal is allowed with the aforesaid observations. No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41728


                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                           CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.4995 OF 2014
                  (ARISING OUT OF SLP(C) NO.36661 OF 2013)

ANTONETTO JOHN D’SOUZA @ JOHNNY
D'SOUZA                                                   … APPELLANT

                                    VERUS

MRS. ALDILA BRAGANZA                               … RESPONDENT

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.

      This appeal is directed against the  judgement  dated  18th  November,
2013 passed by the High Court of Bombay at Goa in Writ  Petition  No.622  of
2013. By the impugned judgment, the High Court quashed the order dated  28th
March, 2013 passed by the Mamlatdar, Bardez and order dated 20th  September,
2013 passed by the Additional Collector-II,  North  Goad  and  remitted  the
matter to Mamlatdar, Bardez to decide whether he has jurisdiction/powers  to
re-open the proceedings in question and to pass appropriate orders.
2.    The factual matrix of the case is as follows:
      The respondent alleged the blocking  of  her  traditional  easementary
access by the  appellant  by  constructing  compound  walls.  Initially,  an
application under Section  4  of  the  Mamlatdar's  Court  Act  (hereinafter
referred to as the “Act”) was filed by the respondent before  the  Mamlatdar
with regard to the said obstruction. The application came  to  be  dismissed
for default by order dated 7th January, 2008 and subsequently, the same  was
restored.  The appellant filed a Revision Application before  the  Collector
against the order of restoration. In the said  Revision  Application  an  ex
parte order was passed by the Additional Collector-I, Panaji on  11th  July,
2008 directing the Mamlatdar,  Bardez  to  open  the  gate  and  remove  the
obstacles like the compound walls between Survey  Nos.163/1  and  163/2  and
Survey Nos.164/1 and 163/10, 163/1,163/2 and 163/4, to make openings  enough
for free movement of an ambulance to  enable  the  respondent  to  take  her
father-in-law for medical treatment.
3.    The appellant challenged  the  said  order  by  filing  Writ  Petition
No.422/2008 before the High  Court  and  obtained  an  order  of  stay.  The
respondent and her father-in-law filed  an  appeal  from  Order  No.59/2008,
against the order dated 13th February, 2008 passed by  the  Civil  Court  at
Mapusa, whereby the  application  for  temporary  and  mandatory  injunction
filed by the respondent and her father-in-law in Civil Suit No.134/07/B  was
dismissed. The said writ petition and appeal from order came to be  disposed
of by an order dated 4th May, 2009 which is as under:
“Mr. Usgaonkar, learned Senior Counsel applies for withdrawal of the  Appeal
from Order No.59/2008 as the appellants have  been  granted  a  satisfactory
alternate access by the Panchayat at Calangute. The owner  of  the  property
through which the access is now granted has also given no  objetion  to  the
grant  of  access  to  the  appellants  as  well  as  the   other   members.
Consequently, the petitioner's relief for setting aside the  orders  of  the
Mamlatdar dated 7.3.2008 and  11.7.2008  is  required  to  be  granted.  The
appellants in Appeal from Order No.59/2008 concedes  that  the  lis  in  the
Mamlatdar Court's  no  longer  remains.  Mr.  Usgaonkar  on  behalf  of  the
appellants undertakes to withdraw the application in the Mamlatdar's  Court.
However, the office of the Village  Panchayat,  Calangute  shall  issue  the
completion certificate requested  by  the  appellants  which  could  not  be
issued due to the election. The completion certificate shall  be  issued  on
or  before  31.05.2009.  The  Writ  Petition  No.422/2008  is  disposed   of
accordingly and Appeal from Order No.59/2008 is allowed to be withdrawn.”

4.    The respondent,  thereafter,  filed  Miscellaneous  Civil  Application
No.348/2011 in the said writ petition for recall  of  the  order  dated  4th
May, 2009 passed in the writ petition, inter alia, on the ground that  there
was  a  misrepresentation  before  the  Court  that  there  was  a  suitable
alternate access available to the respondent. By  order  dated  14th  March,
2012, the High Court observed that according to the learned  Senior  Counsel
for respondent No.1 (appellant  herein)  the  access  having  width  of  1.5
metres is found at the site, but the said contention  was  disputed  by  the
respondent. The High Court to verify the situation  at  loco,  directed  the
Surveyor of the office of the  Mamlatdar,  Bardez  to  carry  out  the  site
inspection and ascertain whether the said access of 1.5 metres  as  depicted
in the plan produced on record was available on the site. As the said  order
was not complied with, by another order dated 18th April,  2012,  passed  in
M.C.A. No.348/2011, the High Court directed  Mamlatdar,  Bardez  to  inspect
and verify the width of alternate access provided to the respondent  by  the
Village Panchayat of Calangute. The Surveyor attached to the office  of  the
Mamlatdar conducted the inspection of the  said  alternate  access  on  24th
April, 2012 and prepared a report along with plan  and  submitted  the  same
before the High Court. The  said  plan  revealed  that  the  said  alternate
access does not have a minimum uniform width  of  1.5  metres  and  at  some
places the width was not 1.5 metres and it varied at various other points.
5.    Finally, by order dated 10th May, 2012, M.C.A. No.348/2011 came to  be
disposed of with the following observations:
“5.   The Court had directed the learned Mamlatdar to depute a  surveyor  to
ascertain as to whether such access is available at the  site.  The  learned
Mamlatdar has filed an affidavit dated 10/05/2012 along with the report  and
the sketch. On perusal of the sketch it appears  that  at  some  places  the
width is not 1.5 metres. Considering such disputed questions, it is not  for
this Court now to reconsider the matter  in  the  Writ  Petition  which  has
already been disposed of. But however,  in  case  the  basis  on  which  the
petition has been disposed  of  is  not  found  at  loco  as  sought  to  be
contended by the appellant/petitioner such grievance will have to be  raised
by the petitioner before the learned Mamlatdar in accordance with law.

6.    Shri Nigel Da Costa Frias,  the  learned  Counsel  appearing  for  the
applicant/ petitioner, upon instructions of the applicant who is present  in
Court, points out that he will not press for the  other  contentions  raised
in the above application, but however, he should be given an opportunity  to
file an appropriate application before  the  leaned  Mamlatdar  to  get  his
grievances with regard to the alternative access adjudicated.

7.    Without going into the correctness of the contentions of  the  Counsel
in respect of the  alternative  access  on  the  basis  of  which  the  Writ
Petition came ot be disposed of by this Court, the petitioner is  always  at
liberty if she is so entitled to approach the learned Mamlatdar with  regard
to her said claim of access to her property. In case  any  such  application
is filed the learned Mamlatdar will have to decide the  same  after  hearing
the concerned parties in accordance with law.”

6.    Thereafter, the respondent  filed  an  application  dated  29th  June,
2012, before the  Mamlatdar,  Bardez  to  reopen  the  proceedings.  By  the
judgment and order dated 28th March, 2013, the Mamlatdar,  Bardez  dismissed
the said application. The Revision Application against  the  same  was  also
dismissed  on  20th  September,  2013.  Against  the  aforesaid  order,  the
respondent filed a writ petition before the High Court.  After  hearing  the
parties by the impugned judgment, the High Court  while  setting  aside  the
order passed by the  Mamlatdar  and  the  Revisional  Authority  passed  the
following order:
“25. In the result, the petition partly succeeds.

(a)   The impugned orders  dated  28/03/2013  passed  by  the  Mamlatdar  of
Bardez  and 20/09/2013 passed by the Additional Collector-  II,  North  Goa,
are quashed and set aside.

(b)   The matter is remanded to the respondent No.2 to  decide  whether  for
reasons stated in the  application  and  in  accordance  with  law,  he  has
jurisdiction/powers   to    re-open    the    said    proceedings    bearing
No.MAM/BAR/MCA/4/2007 and if he comes to the conclusion  that  he  has  such
powers, then to adjudicate on the grievance of the  petitioner  with  regard
to the altenate access.

(c) If the respondent No.2 finds that the said  grievance of the  petitioner
is true and on account of the same and for other  reasons,  he  can  re-open
the proceedings,  then  he  shall  proceed  to  dispose  of  the  said  case
No.MAM/BAR /MCA/4/2007, in accordance with law, expeditiously.

(d)   The contentions of the parties are kept open  for  being  made  before
the respondent No.2.

(e)   Parties to appear before the respondent No.2  on  09/12/2013  at  3.00
p.m.”

7.    Learned counsel for the appellant  contended  that  in  terms  of  the
order dated 27th April, 2009 of  the  Panchayat  access  has  been  provided
through property bearing Survey No.162/9 for the benefit of  respondent  and
other residents of the locality after the NOC of the owner of  the  property
was taken, the only issue that was being considered by the  High  Court  was
that of alternative access. The grievance of the  respondent  that  at  some
points the minimum access of 1.5 metres was not available was  also  assured
to be made available by the Panchayat by removing the trees. Therefore,  the
direction of the High Court to reopen the entire issue was uncalled for.
8.    On the other hand, learned counsel for the respondent  submitted  that
earlier the High Court was misrepresented in view of  the  order  passed  by
the Panchayat and the High Court rightly remitted the matter to  decide  the
issue.
9.    The dispute between the appellant and the respondent reached  finality
when the High Court disposed of  the  Writ  Petition  No.422/2008  by  order
dated 4th May, 2009, therein the respondent conceded that  the  lis  in  the
Mamlatdar Court’s no longer  remains.  Learned  counsel  on  behalf  of  the
respondent undertook to withdraw the application in the  Mamlatdar’s  Court.
The office of the Village Panchayat, Calangute  was  ordered  to  issue  the
completion certificate as requested by the respondent  which  could  not  be
issued due to the election. The High Court directed to issue the  completion
certificate on or before 31st May, 2009. The writ petition was  disposed  of
accordingly and Appeal from Order No.59/2008 was allowed to be withdrawn.
10.   The High Court considering the fact that disputed question of fact  is
involved in the case by order dated 10th May, 2011 observed that it was  not
for the High Court to reconsider the matter in the writ petition  which  has
already been disposed of. However, in case the basis on which  the  petition
has been disposed of is not found at loco as sought by the  respondent  such
grievance will have to be raised by the respondent before the  Mamlatdar  in
accordance with law. Therefore, without going into the  correctness  of  the
contentions of the  parties  in  respect  of  the  alternative  access,  the
respondent was given liberty to approach the Mamlatdar, with regard  to  her
claim of access to her property, who was asked  to  decide  the  same  after
hearing the concerned parties in accordance with law.
11.   No direction was issued by the High Court to reopen  the  matter.  The
High Court has also not directed  the  Mamlatdar,  Bardez  to  consider  the
question  as  to  whether  he  has   jurisdiction/powers   to   reopen   the
proceedings. Such being the position, it was not open for the High Court  in
a subsequent writ petition  to  pass  any  order  enlarging  the  order  and
direction  issued  by  the  High  Court  in  the   earlier   Writ   Petition
No.422/2008.  At  best,  the  High  Court  could  have  asked  the   Village
Panchayat, Calagute to issue completion certificate, if  the  same  had  not
been issued pursuant to the direction of the High Court dated 4th May,  2009
in Writ Petition No.422/2008. It is only after issuance  of  the  completion
certificate, the respondent could have  decided  whether  she  is  satisfied
with such completion certificate or not. The respondent having accepted  and
given undertaking to withdraw the application  before  the  Mamlatdar  Court
there was no question of remitting the matter to the Mamlatdar.
12.   For the reason aforesaid, we set aside the judgment  and  order  dated
18th November, 2013 with liberty to respondent to move before the  Court  of
competent jurisdiction, if completion certificate has  not  been  issued  by
the Village Panchayat, Calagute  in  terms  of  the  order  passed  in  Writ
Petition No.422/2008  or  if  the  respondent  did  not  satisfy  with  such
completion certificate.
13.   The appeal is allowed with the aforesaid observations. No costs.

                                                          …………………………………………J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)


                                                          …………………………………………J.
                                             (R.K. AGRAWAL)
NEW DELHI,
JULY 2, 2014.

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