Case details

Court: Supreme Court of India
Decided: 25 February 2020
Bench: L. Nageswara Rao
Citations: 2020 INSC 222[2020] 3 S.C.R. 1007
Type: Judgment (Appeal(s) allowed)

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Citation: [2020] 3 S.C.R. 1007 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

SITABAI SHANTARAM TALAWNEKAR & ORS. versus CUSTODIAN OF EVACUEE PROPERTY & ORS. on 25 February 2020

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SITABAI SHANTARAM TALAWNEKAR & ORS.

CUSTODIAN OF EVACUEE PROPERTY & ORS.

(Civil Appeal Nos. 8802-8803 of 2013)

FEBRUARY 25, 2020

[L. NAGESWARA RAO AND R. SUBHASH REDDY, JJ.]

Goa Daman and Diu Administration of Evacuee Property Act,1964:

ss.3, 4 and 32 (As amended by Amendment Act 19 of 1989) –Property in question an evacuee property – Under supervision ofCustodian under the Act – Appellants in possession thereof as tenantsof custodian – Application by respondent No.2 under s.7 and 8-Aof Goa Daman and Diu Agricultural Tenancy Act, 1964 to declarehim tenant of portion of the property in question – Claim ofrespondent allowed by the Authorities and Courts below – Appealto Supreme Court – Held: The claim of 2nd respondent has beenallowed without recording any valid reasons based on acceptableevidence to prove the claimed tenancy – Respondent No.2 has failedto prove his tenancy as well as his deemed tenancy – Even to claimsub-tenancy through the tenants/appellants, there was no priorapproval from the custodian as contemplated u/s.32 – Goa, Damanand Diu Agricultural Tenancy Act, 1964 – ss.7 and 8A.

Allowing the appeals, the Court

HELD: 1. The claim of the 2nd respondent is allowedwithout recording any valid reasons based on acceptable evidenceto prove the tenancy as claimed by him. The 2nd respondent hasnot claimed tenancy directly from the Custodian, in absence ofwhich he cannot have the benefit of Amending Act 19 of 1989.Amending Act 19 of 1989 which amends the Goa, Daman and DiuAdministration of Evacuee Property Act, 1964 and the Goa,Daman and Diu Agricultural Tenancy Act, 1964 makes it clearthat ‘tenancy’ means the relationship existing between tenantand the Custodian. [Para 9][1013-C-D]

2. The 2nd respondent has not claimed tenancy on the basisof relationship existing with the Custodian. Further, by virtue of

ASection 3, as amended, the provisions of Tenancy Act are madeapplicable only to agricultural land and tenancies created by theCustodian. The said provision is a provision overriding otherlaws. Even as per the claim of the 2nd respondent he was not inpossession at the time of making the application but it was hiscase that he was dispossessed after the appellants’ predecessorsBobtained injunction orders in Civil Suit No.126 of 1984. As such,he has claimed to be a deemed tenant within the meaning ofSection 4 of the Tenancy Act. To establish deemed tenancy underSection 4 of the Tenancy Act, one has to prove that personclaiming deemed tenancy was in possession on or after the 1st ofCJuly 1962 and before the commencement of the Act, i.e.,08.02.1965. The 2nd respondent has not filed any acceptabledocumentary evidence to prove that he was in possession duringthe relevant time to claim tenancy. Even to claim sub-tenancy ortransfer from the predecessor of the appellants, who wasadmittedly tenant from the Custodian under the provisions ofDthe Evacuee Property Act, there was no prior approval from theCustodian as contemplated under Section 32 of the EvacueeProperty Act. The primary authority, though referred to variousobjections raised by the appellants herein, has allowed theapplication based on the alleged oral settlement by the appellants’Epredecessor and the 2nd respondent. Such oral settlement whichis disputed by the appellants cannot be the basis for grant oftenancy rights on the application made by the 2nd respondent.[Para 9][1013-D-H; 1014-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8802-F8803 of 2013.

From the Judgment and Order dated 08.05.2009 of the High Courtof Bombay at Goa in Writ Petition No. 142 of 2009 and order dated09.09.2009 in L.P.A. No. 14 of 2009.

WithGContempt Petition (C) Nos. 187-188 of 2012 in C.A. Nos. 8802-8803 of 2013.

Siddharth Bhatnagar, Sr. Adv., Sidharth Mohan, Aditya Sidhra,Ankit Yadav, T. Mahipal, Advs. for the Appellants.

Pratap Venugopal, Ms. Surekha Raman, Ms. Ayushi Gaur, AkhilAbraham Roy, Vijay Valsan, M/S. K J John And Co., Abhinav Mukerji,Samarth Khanna, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs. for theRespondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

Civil Appeal Nos.8802-8803 of 2013

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1. These civil appeals are filed, aggrieved by the judgment andorder dated 08.05.2009 passed in W.P. No.142 of 2009 and the judgmentand order dated 09.09.2009 passed in L.P.A. No.14 of 2009 by the HighCourt 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 ofGoa. The said property originally belonged to one Eurico de Soza JoquemNoroana. After the liberation of Goa the said property was declared asevacuee property and same was under the supervision of the Custodianof Evacuee Property, under provisions of the Goa, Daman and DiuAdministration of Evacuee Property Act, 1964 (for short, ‘EvacueeProperty Act’). The appellants claim to be in possession of the aforesaidproperties as tenants of the Custodian. When there was a dispute betweenthe predecessors of the appellants and the 2[nd] respondent (nowrepresented by his legal heirs), the predecessors of the appellants filedCivil 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 theCivil Judge, Senior Division, Bicholim granted ex-parte injunction in thecivil suit and it is stated that the appeal filed before the District Judge bythe 2[nd] respondent ended in dismissal. On 05.11.1984 respondent no.2filed an application before the Court of Custodian of Evacuee Property,Panji, claiming that he was in possession of the portion of cashew gardenand the appellants were trying to evict him as he was not paying theexorbitant rent demanded by the appellants. Vide order dated 21.01.1986the Custodian of Evacuee Property dismissed the application of respondentno.2. Alleging that inspite of injunction orders obtained by the appellantsin Civil Suit No.126 of 1984, respondents were interfering with the propertyin question, the appellants got police protection from the trial court vide

Aorder dated 29.08.1989. Thereafter the 2[nd] respondent filed RegularCivil Suit No.60 of 1990 in respect of portion of property covered bySurvey Nos.114 and 116 and the said suit ended in dismissal vide orderdated 18.12.1992.

3. As per Section 56 of Goa, Daman and Diu Agricultural TenancyBAct, 1964 (hereinafter referred to as, ‘the Tenancy Act’), the Act wasnot applicable in respect of evacuee properties. By virtue of GoaAdministration of Evacuee Property (Amendment) Act, 1989, theprovisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 weremade applicable to the evacuee properties. In view of such amendment,respondent no.2 filed an application under Sections 7 and 8-A of theCTenancy Act seeking declaration that he is a tenant of the portion of thesuit 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 allowedthe application declaring the 2[nd] respondent as a tenant. The said orderis confirmed by the appellate authority vide order dated 08.01.2003 andDfurther confirmed by Administrative Tribunal vide order dated 30.12.2008.When the appellants have filed writ petition in W.P.No.142 of 2009questioning the aforesaid orders, learned Single Judge of the High Courtof 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 ofLetters Patent Appeal, same is dismissed as not maintainable. ThoughEthe 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 haveheard the matter on merits with the consent of the learned advocatesappearing on both sides.

4. Learned senior counsel Sri Siddharth Bhatnagar appearing forFthe appellants has contended that the application of the 2[nd] respondentclaiming tenancy was allowed without recording any valid reasons insupport of the claim. It is submitted that the alleged oral compromise ismade basis by the primary authority for allowing the application withoutexamining the relevant aspects as per the provisions of Tenancy Act forGdeclaration of tenant. It is submitted that there is no evidence on recordto show that 2[nd] respondent was a ‘tenant’ or ‘deemed tenant’ withinthe meaning of the Tenancy Act and rules made thereunder to allow hisapplication for declaration of tenancy rights. It is further submitted thatundisputedly land in question is an evacuee property governed by theprovisions of the Evacuee Property Act and that though originally theH

Tenancy Act was not applicable to evacuee properties but only by virtueof Amending Act 19 of 1989, the said Act is made applicable to evacueeproperties for tenancies created by Custodian. It is further submittedthat in absence of any acceptable evidence on record to show that 2[nd]respondent was tenant of the land in question his claim was erroneouslyallowed by the primary authority and no other authority, namely, appellateand revisional authorities and the learned Single Judge of the High Courthave considered the matter in proper perspective and have confirmedthe order mechanically.

5. On the other hand, Sri P. Venugopal, learned counsel appearingfor the legal heirs of the 2[nd] respondent, has submitted that there is aconcurrent finding by all the authorities which is confirmed by learnedSingle Judge of the High Court, as such, there are no grounds to interferewith the same. It is submitted that the parties are related and the 2[nd]respondent was in possession of a portion of the land which is coveredby the application claiming tenancy rights and the oral evidence led beforethe primary authority confirms the possession of the 2[nd] respondent. It isfurther submitted that in view of the available oral and documentaryevidence on record, the primary authority has declared tenancy in favourof 2[nd] respondent and there are no grounds to interfere with the impugnedorders passed by the High Court confirming the orders of the statutoryauthorities.

6. Having heard learned counsels on both sides, we have perusedthe impugned order and other material placed on record.

7. The Goa, Daman and Diu Agricultural Tenancy Act, 1964 is anAct to provide for the regulation of the terms of tenancy with respect toagricultural lands in the Union Territory of Goa, Daman and Diu. Section2 sub-section (23) of the Tenancy Act defines the term, ‘tenant’. As perthe aforesaid Section ‘tenant’ means a person who on or after the dateof commencement of the Act holds land on lease and cultivates itpersonally and includes a person who is or was deemed to be a tenantunder the Act. Section 4 of the Tenancy Act deals with the ‘personsdeemed to be tenants’. As per Section 4 deemed tenant is a personlawfully cultivating any land belonging to another person on or after the1[st] 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 Administrationof Evacuee Property Act, 1964.

A8. The Goa, Daman and Diu Administration of Evacuee PropertyAct, 1964 and the Goa, Daman and Diu Agricultural Tenancy Act, 1964are amended by the Amending Act 19 of 1989, extending the benefits ofTenancy Act to the evacuee properties. As per Section 2(kkk) of theAmending Act, ‘tenancy’ means the relationship existing between thetenant and the Custodian; and as per Section 2(kkkk) ‘tenant’ means aBperson who on or after the date of commencement of the GoaAdministration of Evacuee Property (Amendment) Act, 1989, holds landand cultivates it personally but does not include a person who holds landon lease for the purpose of plucking the fruits only. Section 3 of theAmending Act amends Section 3 of the principal Act, to override otherClaws. 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 GoaAdministration of Evacuee Property (Amendment) Act, 1989, theprovisions of the Goa, Daman and Diu Agricultural Tenancy Act,D1964 (Act 7 of 1964), for the time being in force, shall apply inrespect of agricultural land and tenancies created by the Custodian.

(2) The provisions of this section shall, save as otherwise expresslyprovided, have effect notwithstanding anything to the contrarycontained in any instrument having effect by virtue of any suchElaw.”

A reading of definition of ‘tenancy’ and ‘tenant’ coupled with theamended Section 3 of the principal Act makes it clear that the provisionsof Goa, Daman and Diu Agricultural Tenancy Act, 1964 are madeapplicable only to agricultural land and tenancies created by the Custodian.FThere is yet another important aspect which has bearing on the issue isthe provision under Section 32 of the Evacuee Property Act which readsas under :

“32. Transactions relating to evacuee property void incertain circumstances.-(1) As from the commencement of thisGAct, no transfer of or transaction in respect of any propertybelonging to a Portuguese national shall be valid unless it is madewith the previous approval of the Custodian.

(2) Subject to the other provisions contained in this Act, everytransaction entered into by any person in respect of property H

declared or deemed to be declared to be evacuee property withinthe meaning of this Act shall be void unless entered into by orwith the previous approval of the Custodian”

Section 32, as referred to above, makes it clear that any transferor transaction in respect of any evacuee property is not valid unless it ismade with the previous approval of the Custodian.

9. From a perusal of the impugned orders passed by the primaryauthority, appellate authority and the revisional authority and the orderof the learned Single Judge of the High Court, we are of the view thatthe claim of the 2[nd] respondent is allowed without recording any validreasons based on acceptable evidence to prove the tenancy as claimedby him. The 2[nd] respondent has not claimed tenancy directly from theCustodian, in absence of which he cannot have the benefit of AmendingAct 19 of 1989. Amending Act 19 of 1989 which amends the Goa, Damanand 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 theCustodian. The 2[nd] respondent has not claimed tenancy on the basis ofrelationship existing with the Custodian. Further, by virtue of Section 3,as amended, the provisions of Tenancy Act are made applicable only toagricultural land and tenancies created by the Custodian. The saidprovision is a provision overriding other laws. Even as per the claim ofthe 2[nd] respondent he was not in possession at the time of making theapplication but it was his case that he was dispossessed after theappellants’ predecessors obtained injunction orders in Civil Suit No.126of 1984. As such, he has claimed to be a deemed tenant within themeaning of Section 4 of the Tenancy Act. To establish deemed tenancyunder Section 4 of the Tenancy Act, one has to prove that person claimingdeemed tenancy was in possession on or after the 1[st] of July 1962 andbefore the commencement of the Act, i.e., 08.02.1965. The 2[nd] respondenthas not filed any acceptable documentary evidence to prove that he wasin possession during the relevant time to claim tenancy. Even to claimsub-tenancy or transfer from the predecessor of the appellants, whowas admittedly tenant from the Custodian under the provisions of theEvacuee Property Act, there was no prior approval from the Custodianas contemplated under Section 32 of the Evacuee Property Act. Theprimary authority, though referred to various objections raised by theappellants herein, has allowed the application based on the alleged oral A

Asettlement by the appellants’ predecessor and the 2[nd] respondent. Suchoral settlement which is disputed by the appellants cannot be the basisfor grant of tenancy rights on the application made by the 2[nd] respondent.Even the appellate and revisional authorities have not considered therelevant aspects and disposed of the appeal and revision. Learned SingleJudge of the High Court, by giving credence to the inspection report andBexcise licences obtained by 2[nd] respondent, has confirmed the orderpassed by the authorities.

10. For the aforesaid reasons, we allow these appeals and setaside the impugned orders, consequently the application filed by the 2[nd]respondent before the Joint Mamlatdar-I of Bicholim in Case No.JM/-1/CTNC/19/95 stands dismissed.

11. In the Special Leave Petitions, while issuing notice on14.12.2009, this Court has ordered to maintain status quo with regard to Dpossession of the lands in question. Alleging that legal representatives ofthe 2[nd] respondent have violated the said order, appellants have movedthe contempt petitions. In view of the final orders passed by this Court inthese civil appeals it is not necessary to pass any orders in these contemptpetitions at this stage. Accordingly, these contempt cases are closed.

Kalpana K. Tripathy

Appeals allowed.