1. Heard Mr. Nigel Da Costa Frias, learned Counsel appearing on behalf of the petitioner, Mr. J. E. Coelho Pereira, learned Senior Counsel appearing on behalf of respondent no.1 and Mr. P. Phaldessai, learned Additional Government Advocate for respondents no. 2 and 3.
2. Rule. Heard forthwith with the consent of the parties.
3. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has sought the following reliefs :
(a) That the records and proceedings of the case no. MAM/BAR/MCA/4/07 before the Mamlatdar of Bardez and case no. MCA/AC-II/REV/02/2013 before the Additional Collector-II at Panaji be called for and upon perusing the same, this Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction and quash and set aside the impugned orders dated 28/03/2013 and 20/09/2013 passed therein.
(b) That this Court be pleased to direct the Mamlatdar of Bardez to hear and dispose off the Petitioner's application under case no. MAM/BAR/MCA/4/07 expeditiously within a time frame determined by this Court.
(c) Such other orders be passed as this Court deemed fit and proper under the circumstances.
4. The matter pertains to the alleged blocking of the petitioner's traditional easementary access by respondent no.1 by constructing compound walls. An application under Section 4 of the Mamlatdar's Court Act (said Act, for short) was filed by the petitioner before the Mamlatdar of Bardez (respondent no. 2) with regard to the said obstruction. The said application came to be dismissed for default by order dated 07/01/2008 and on an application filed by the petitioner, the same was restored by order dated 13/02/2010. Respondent no.1 had filed a Revision Application bearing no. MCA/AC/REV/2008 before the Collector against the said order of restoration dated 13/02/2008 passed by the Mamlatdar. On an application dated 10/07/2008 filed by the petitioner, in the said Revision Application, the Additional Collector-I, Panaji was pleased to pass an ex-parte order on 11/07/2008 directing the Mamlatdar of Bardez to open the gate and remove the obstacles like the compound walls between Survey Nos.163/1 and 163/2 and between 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 petitioner to take her father-in-law for medical treatment. Respondent no.1 challenged the said order of the Additional Collector-I before this Court by filing Writ Petition No. 422/2008 and obtained stay of the said order. The petitioner and her father-in-law had filed an Appeal from order No. 59/2008, against the order dated 13/02/2008 passed by the Civil Court at Mapusa, whereby the application for temporary and mandatory injunction filed by the petitioner 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 04/05/2009 which is as under :
âMr. 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 objection 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.â
5. The petitioner, thereafter, filed Miscellaneous Civil Application No. 348/2011 in the said Writ Petition No. 422/2008 for recall of the said order dated 04/05/2009 passed by this Court in the said Writ Petition No. 422/2008, inter alia, on the ground that there was misrepresentation before this Court that there was a suitable alternate access available to the petitioner. By order dated 14/03/2012, this Court has observed that according to learned Sr. Counsel appearing for the respondent no. 1 the access having width of 1.5 metres is found at the site which contention was disputed by the petitioner. This Court, in order to verify the situation at loco, directed the Surveyor of the office of the Mamlatdar of 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 by the respondent, is available on the site. As the said order was not complied with, by another order dated 18/04/2012, passed in the said M.C.A. No. 348/2011, the Mamlatdar of Bardez was directed to depute the Surveyor to inspect and verify the width of so called alternate access provided to the petitioner by the Village Panchayat of Calangute. The Surveyor attached to the office of the Mamlatdar conducted the inspection of the said alternate access on 24/04/2012 and prepared a report along with plan, which was submitted before this Court. The said plan revealed that the said alternate access does not have a minimum uniform width of 1.5 metres and at the some places the width was not 1.5 metres and it varies at various other points.
6. Ultimately, by order dated 10/05/2012, the said M.C.A. No. 348/2011 came to be disposed of. During the course of hearing on 10/5/2012, it was contended by the learned Counsel appearing for the petitioner that the alternative access as agreed to be provided, is not found at loco and that the same is not satisfactory access to the benefit of the petitioner. On the contrary, the learned Senior Counsel appearing for respondent no.1 submitted that as per the resolution of the Village Panchayat passed on 29/11/2008, the Panchayat had agreed to provide an access having minimum width of 1.5 metres and that the said access is available at loco. In paragraphs no. 5, 6 and 7 of the said order dated 10/05/2012, this Court has observed as under :
â5. This 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 applicant/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 learned 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 to 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.â
7. Thereafter, the petitioner filed an application dated 29/6/2012, before the Mamlatdar of Bardez (respondent no. 2), praying therein to re-open/recommence the proceedings in case No. MAM/BAR/MCA/4/2007. By judgment and order dated 28/03/2013, the respondent no. 2 dismissed the said application. Aggrieved by the said order, the petitioner, filed Revision Application being Case No. MCA/AC-II/REV/02/2013 before the Additional Collector-II, North Goa. By judgment dated 20/9/2013, the said Revision Application was dismissed. That made the petitioner to file the present Writ Petition.
8. Learned Counsel appearing on behalf of the petitioner submitted that the Additional Collector-I by ex-parte order dated 11/7/2008 had granted required relief to the petitioner. He submitted that Panchayat had agreed to provide for alternate access of minimum width of 1.5 metres and due to the said assurance, the application in the Mamlatdar's Court was agreed to be withdrawn. Accordingly, the Appeal from Order No. 59/2008 was allowed to be withdrawn and the Writ Petition No. 422 of 2008 was disposed of and an undertaking was given to withdraw the application in the Mamlatdar's Court. He further submitted that as per the plan submitted by a Government Surveyor, there is a coconut tree and teak wood tree on the said alternate access provided by Panchayat and the width of 1.5 metres is not uniformly existing and that at some places it is less, which facts were not within the knowledge of the petitioner. According to the learned Counsel for the petitioner, in terms of the order dated 10/05/2012, the petitioner was required to file an application before the Mamlatdar making a grievance that the basis on which the Writ Petition No. 422/2008 was disposed of, is not found at loco and upon adjudication of the said grievance, the Mamlatdar was bound to decide whether the petitioner is entitled to approach him again with regard to her claim of the original traditional access.
9. Per contra, it is the submission of Mr. Coelho Pereira, the learned Senior Counsel appearing on behalf of respondent no.1 that it is the petitioner himself, who had made the submission before this Court in Writ Petition No. 422/2008 alleging that they have been granted satisfactory alternate access and they themselves had withdrawn the Appeal from Order and had undertaken to withdraw the application filed in the Mamlatdar's Court. He, therefore, submitted that the petitioner cannot now pray for reopening of the said case no. MAM/BAR/MCA/4/07, which has already been closed. He showed to the Court the copy of the completion certificate dated 31/07/09 issued by the Extension Officer, relating to the work of development of access from Casa de Goa to the residence of Antonio Braganza. He further submitted that as per the order dated 10/05/2012, passed by this Court, the petitioner was required to file a separate application in respect of the said alternate access and he was not given any opportunity to file an application for reopening of the case no. MAM/BAR/MCA/4/2007. According to him in terms of Section 24 of the Mamlatdar's Court Act, there is bar on filing fresh proceedings after closure of previous proceedings. He, therefore, submitted that the impugned orders passed by the Mamlatdar and by the Additional Collector are in accordance with law and no interference is called for.
10. Mr. Phaldessai, the learned Additional Government Advocate appearing on behalf of respondents no. 2 and 3 submitted that a plain reading of the orders would reveal that the respondent no. 2 has duly complied with the orders of this Court and the respondent no. 3 has rightly dismissed the Revision Application.
11. In rejoinder, the learned Counsel for the petitioner submitted that the petitioner had not filed any fresh application before the respondent no. 2 but had filed the application for reopening of the Case No. MAM/BAR/MCA/4/07.
12. I have perused the material on record and considered the submissions made by the learned Counsel for the respective parties.
13. It is true that the learned Senior Counsel, then appearing for the petitioner and her father-in-law in the Writ Petition No. 422/2008 and A.O. No. 59/2008 had made a statement that the appellants of A.O. No. 59/2008 have been granted a satisfactory alternate access by the Panchayat at Calangute and applied for leave to withdraw the said A. O. No. 59/2008 saying that the lis in the Mamlatdar's Court no longer remains. That appears to be on the basis of the proceedings of the meeting of the Panchayat held on 29/11/2008. In the said resolution dated 29/11/09, the alternate access is mentioned to be of the width of 1.5 metres and more. However, now, according to the petitioner the said alternate access is not found at loco as per the resolution passed by the Panchayat on 29/11/2008 since the width is less than 1.5 metres at some places. As per the report and plan of the Surveyor appointed by this Court, the existing access has a minimum width of 1.25 metres to maximum 1.98 metres with the exception of 3.5 metres to a small stretch of few metres. According to the petitioner, even an auto rickshaw which is less than 150 cms. in width cannot pass through the given access, let alone an ambulance, as was prayed for by the applicants. But according to the respondents, the width of 1.5 metres very much exists at loco. Therefore, the question whether a satisfactory alternate access has been provided by the Panchayat or not is a disputed question. The statement in Writ Petition No. 422/2008 to the effect that the lis in the Mamlatdar's Court no longer remains, therefore, can be said to have been made under a belief that there was satisfactory access provided for by the Panchayat. The said belief now, according to the petitioner, has been found to be not true. Since the respondents, however, say that the same does exist, the existence of the alternate access of the width of 1.50 metres is now a disputed question. On account of the above disputed question, the reopening of the Writ Petition No. 422/2008 by recall of order dated 04/05/09, was not allowed.
14. A perusal of the order dated 10/05/2012 passed by this Court in M.C.A. No. 348/2011 reveals that it is observed that in case the basis (i.e. the satisfactory alternate access), on which the Writ Petition No. 422/2008 has been disposed of, is not found at loco as sought to be contended by the applicant/petitioner, such grievance will have to be raised by the petitioner before the learned Mamlatdar, in accordance with law and that 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 and that 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. However, nowhere it is held that the petitioner is not entitled to file an application before the Mamlatdar (respondent no. 2) to re-open the case No. MAM/ BAR/MCA/4/2007. No doubt, in paragraph 6 of the said order, it is mentioned that Shri Nigel Da Costa Frias, the learned Counsel appearing for the applicant/petitioner, upon instructions of the applicant, points out that he will not press for the other contentions raised in the application, but however, he should be given an opportunity to file an appropriate application before the learned Mamlatdar to get the grievance with regard to the alternative access adjudicated. There is no contention raised in the said M.C.A. No. 348/2011 that in the facts and circumstances of the case, the applicant/petitioner is entitled to get the Case No. MAM/BAR/MCA/4/07 re-opened, not to press for the same. Therefore, it cannot be said that the petitioner had given up her right, if it is available in law, to get the said case before the respondent no. 2 re-opened. No-one has taken away the right of the petitioner, if she has the same under the law, and under the facts and circumstances of the case, if the case is made out, to get the said case re-opened.
15. It is nobody's case that the given access (alternate access), as provided by the Panchayat, has been obstructed or encroached upon otherwise than under due authority of law,subsequently, for the petitioner to file an application to the respondent no. 2 under Section 4 of the Mamlatdar's Court Act. It is the case of the petitioner that the minimum width of 1.5 metres, as agreed to be provided, is not there. Instead of merely filing a fresh application with regard to the grievance of the petitioner in respect of non-existence of the width of 1.5 metres to the said alternate access at loco, the petitioner filed an application in the same Case No. MAM/BAR/MCA/4/07, before the respondent no. 2, praying therein to re-open/recommence the proceedings in the said case. Various ground were raised in the said application including the contention that the alternate access does not have minimum width of 1.5 metres.
16. The respondent no. 1 filed short written submissions dated 31/1/2013 on preliminary objections, before the respondent no. 2, alleging that the Appeal from Order No. 59/2008 and the Writ Petition No. 422/2008 were in respect of the same subject matter i.e. the access claimed by the petitioner through the properties of the respondents and that the Counsel on behalf of the petitioner undertook to withdraw the application in the Mamlatdar's Court. It was further alleged that no liberty was given to re-open the case.
17. The respondent no. 2, in impugned judgment and order, has observed that the the subject matter of Misc Civil Application No. 348/2011 in Writ Petition No. 422/2008 was the alternative access agreed to be provided by the Panchayat through some other property. He has further observed that the petitioner was given liberty, if she was entitled, to approach the Mamlatdar with regard to her claim of alternate access. He has held that the only issue therefore which arises for his consideration is whether the alternate access of 1.5 metres is available to the applicant on the northern side or not.
18. A perusal of the Misc. Civil Application No. 348/2011 reveals that the same was not filed for the purpose of getting adjudicated any grievance regarding the alternate access, but the same was filed by the petitioner for recall of the order dated 04/05/2009 passed by this Court in Writ Petition No. 422/2008 and for re-hearing the said matter. The tenor of the impugned order passed by respondent no. 2 reveals if it is ultimately found that the alternate access of of the width of 1.5 metres is not available, then the Mamlatdar would give such finding and close the case. Such mere finding can never help the petitioner since on the basis of the said finding, the petitioner wants further relief.
19. The respondent no. 2, in the impugned order, has further held there is no question of recommencing the proceedings which have attained finality by virtue of order dated 04/05/2009 passed by the High Court in Writ Petition No. 422/2008 with Appeal from Order No.59/2008. In fact, this court in the said order dated 04/05/2009, insofar as the Case No. MAM/BAR/MCA/4/07, has observed that the appellants in Appeal from Order No. 59/2008 concede that the lis in the Mamlatdar's Court no longer remains and that Mr. Usgaonkar, on behalf of the appellants undertakes to withdraw the application in the Mamlatdar's Court. There was no adjudication, by respondent no. 2, of the claim made by the petitioner in the said Case No. MAM/BAR/MCA/4/07 and also there was no order passed by him on merits to say that the said proceedings have attained finality. The statements that no lis remains and that the application before the Mamlatdar's Court would be withdrawn were made under assumption that a satisfactory alternate access has been provided for by the Panchayat. It is now found by the petitioner that no satisfactory alternate access as agreed to be provided exists at loco. This position is disputed by the respondents. However, there is already a report and plan prepared by the Surveyor showing that the said alternate access is not uniformly of the width of 1.5 metres and that it has less width at some places. This Court, neither in the order dated 04/05/2009 passed in the said Writ Petition No. 422/2008 with Appeal from Order No. 59/2008 nor in the order dated 10/5/2012 passed in M.C.A. No. 348/2008 in Writ Petition No. 422/2008 has held that the petitioner shall not be entitled to get said case before the respondent no. 2, re-opened. The learned Mamlatdar has not stated as to what should be done if he finds that the alternate access of 1.5 metres is not available to the applicant on the northern side and on what basis he has held that the order dated 04/05/2009 passed by this Court in Writ Petition No. 422/2008 reveals that the issue of access which is subject matter of Case No. MAM/BAR/MCA/4/07 has been finally decided and closed. The respondent no. 2 will have to be required to give reasons for the same.
20. It is true that the petitioner approached the respondent no. 2 for re-opening of the said case by alleging that this Court by order dated 10/05/2012 gave liberty to her to approach the learned Mamlatdar with regard to her claim to the access. The fact however remains that this court has not prevented the petitioner from approaching the respondent no. 2 for re-opening the said case. In my view, the respondent no. 2 will have to decide independently whether he has powers to re-open the said proceedings in respect of which an undertaking was given by the learned Counsel for the petitioner that the appellants of Appeal from Order No. 59/2008 would withdraw the said proceedings and if he has powers to do so the respondent no. 2 should consider as to whether there is an alternate access of 1.5 metres available throughout and if it is found that such access is not available, then, the respondent no.2 should decide whether the petitioner is entitled to his claim of original access. In other words, the respondent no. 2, in the first instance, has to decide whether the petitioner is entitled to get the proceedings in case no. MAM/BAR/MCA/4/07 re-opened or she is barred by law from doing so.
21. Section 24 of the said Act provides as under:
24 â Bar of certain suits â No, suit shall lie under this Act-
(a) against Government or against any Government Officer in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force; or
(b) in respect of any removal of any impediment or refuse or of any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court, or under Chapter XII of the Code of Criminal Procedure, 1898 (V of 1898).
22. This Court, while disposing the Writ Petition No. 422/2008 and Appeal from Order No. 59/2008, did not consider the provisions of above Section 24 of the said Act. It was for the respondent no. 1 to decide, inter alia, as to whether remedy is available to the applicant to get the previous proceedings reopened, since fresh proceedings cannot be filed.
23. In the Revision Application No. MCA/ACII/ REV/02/2013, what the learned Additional Collector-II, North Goa has done is to narrate the facts and arguments of the learned Counsel for the parties and after quoting Section 22 of Mamlatdar's Court Act, he has held that the Mamlatdar has passed a speaking order and has considered all the relevant points and that there is nothing illegal and improper in the proceedings or in the said order passed by the Mamlatdar.
24. In view of the discussion supra, and in the interest of justice and fair play, in my considered view, the impugned orders are liable to be quashed and set aside and the matter remanded to the respondent no. 2, to decide the same afresh in the light of the above observations.
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 alternate 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 3.00p.m.
26. Rule is made absolute in the aforesaid terms, with no order as to costs. The Writ Petition stands disposed of accordingly.