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CASE NO.: Appeal (civil)  4128 of 2006

PETITIONER: Antonio S.C. Pereira                                                     

RESPONDENT: Ricardina Noronha (D) by LRs.                                            

DATE OF JUDGMENT: 14/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Civil) No.8304 of 2005]

S.B. SINHA, J :

       Leave granted.

       Jose Joaquim de Noronha was the Count of Mayem.  He was married  to one Filomena Correia Noronha.  They had six children (two sons and four  daughters).  Jose Joaquim had grandchildren through his son Dr. Francis  Antonio, who was married to Racardina.  Filomena died in 1903.  On her  death, in the inventory, half of the estate was allotted to Dom Jose Joaquim  de Noronha and the other half to their children.  On or about 17/18.04.1929,  Dom Jose Joaquim de Noronha bequeathed his disposable quota of  properties allotted to him in the inventory upon the  death of  Filomena.  He  died on 20.04.1929.  Upon his death, his disposable quota of properties was  purportedly described as southern lot.  Allegedly, the terms of the Will were  later altered on 20.06.1930.  The legality of such a course of action,  however, is in dispute.

       On or about 24.12.1964, the Goa Administration Evacuee Property  Act, 1964 (for short, ’the Act’) and the Rules framed thereunder came into  force.   Sub-sections (1), (2) and (3) of Section 15 of the Act, which are  relevant for our purpose read as under :    

       "15. Restoration of evacuee property.-(1) [Save as  provided under section (3) and subject to such rules] as  may be made in this behalf, any evacuee or any person  claiming to be an heir of an evacuee may apply to  Government or to any person authorized by it in this  behalf (hereinafter in this section referred to as the  authorized person) that any evacuee property which has  vested in the Custodian and to which the applicant would  have been entitled if this Act were not in force, may be  restored to him.

       (2)     On receipt of an application under sub- section (1) Government or the authorized person, as the  case may be, shall cause public notice thereof to be given  in the prescribed manner, and after causing an inquiry  into the claim to be held in such manner as may be  prescribed, shall   -

                       (a) if satisfied \026

       (i)     that the conditions prescribed by rules made  in this behalf have been satisfied,

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       (ii)    that the evacuee property is the property of  the applicant, and

       (iii)   that it is just or proper that the evacuee  property should be restored to him,

               Make an order restoring the property to the applicant, or

               (b)     if not so satisfied, reject the application :

Provided that where the application is rejected on  the ground that the evacuee property is not the property  of the applicant, the rejection of the application shall not  prejudice the right of the application to establish his title  to the property in a Civil Court, or

       (c)     if there is any doubt with respect to the title  of the applicant to the property, refer him to a Civil Court  for the determination of his title :

       Provided that no order for the restoration of any  evacuee property shall be made under this sub-section  unless provision has been made in the prescribed manner  for the recovery of any amount due to the Custodian in  respect of the property or the management thereof.

       (3)     Upon the restoration  of  the property to the  evacuee or to the heir, as the case may be, the Custodian  shall stand absolved of all responsibilities in respect of  the property, so restored, but such restoration shall not  prejudice the rights, if any in respect of the property  which any other person may be entitled to enforce against  the person to whom the property has been so restored.

       Provided that every lease granted in respect of the  property by or on behalf of the Custodian shall have  effect against the person to whom restoration is made  until such lease is determined by lapse of time or by  operation of law."

       On 14.11.1967, the  southern half of the estate of Mayem belonging to  Eurico Silva was declared to be ’evacuee properties’.   

       A suit was instituted before a learned Civil Judge,  Senior Division,  Panaji, Goa, in the year 1993 for a declaration that the  allotment in  Inventory Proceedings No.957 of 1929 to Eurico ceased to be  valid/effective.   

It further appears that Ricardina, wife of Eurico, filed an application  before the Custodian for  declaring  southern half of Mayem as ’non-evacuee  property’.  A prayer was also made for restoration of possession in her  favour.  A suit being Civil Suit No.1/96/A was also filed restraining the  Custodian from releasing the suit properties in favour of Ricardina till  disposal of Suit No.154/1993/A.  However, the said suit was withdrawn.  By  an order dated 16.09.1997, the application filed by the Ricardina (since  deceased) was dismissed.  

       Maria Elsa bequeathed her estate in favour of her nephew, Antonio  S.C. Pereira,  Appellant herein, by a will.  She died on 21.11.1997.

The Civil Court passed an order of  temporary injunction  restraining   Respondent No.1 from transferring or alienating any part of the suit  properties, where-against an appeal has been filed, which is said to be still  pending.  

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Respondent No.1, however, filed an application for review of the  order before Respondent No.3.  In the said proceeding an objection was filed  by the Appellant herein.  The said objection was rejected.  A suit was filed  by the Appellant that the application filed by Respondent No.1 for  reconsideration of the said order dated 16.09.1997 by  Respondent No.3 be  declared as null and void.  The said suit was dismissed.  An appeal there- against is said to be  pending.  

Respondent No.3 by reason of an order dated 21.04.1999, however,  reviewed his earlier order dated 16.09.1997, declaring that the entire alleged  southern half of Mayem estate to be ’non-evacuee property’.  An order was  also passed on 17.05.1999 for delivery of possession of the said properties in  favour of  Respondent No.1.   

The said order was, however, set aside by the Government of Goa  by  an order dated 14.02.2000.  Respondent No.1 questioned the correctness of  the said order passed before the High Court.   

Original Respondent No.1 expired on 22.11.2001 and her heirs and  legal representatives were brought on records in the writ proceedings before  the High Court.  By reason of the impugned judgment dated 22.12.2004, the  High Court while setting aside the order of the Government of Goa, Daman  and Diu dated 14.02.2000 purported to have entered into the disputed  questions of title arising by and between Appellant and  Respondent No.1.   

Contention of Mr. T.R. Andhyarujina, the learned Senior Counsel  appearing on behalf of the Appellant was that the High Court committed a  serious error in entering into the question of disputed question of title in the  writ proceedings particularly when a civil suit is pending decision before a  competent Civil Court since 1993.

Mr. Mukul Rohtagi, the learned Senior Counsel appearing on behalf  of  Respondent No.1, however, would submit that while the Civil Court may  determine the disputed question of title, but the judgment of the High Court  should be directed to be  implemented by  Respondent No.3.

According to the learned counsel,  Respondent No.3 has the requisite  jurisdiction to direct restoration of property in terms of Section 15 of the Act  and as such this Court should not pass any order which would come in the  way of the said authority from exercising his statutory power.

The High Court by reason of the impugned judgment, inter alia,  opined that the order dated 21.04.1999 passed by  Respondent No.3 was not  vitiated in law as the application filed by the said Respondent which came to  be rejected by an order dated 16.09.1997, had not been determined as was  required under Section 15 of the Act, directing :

"\005if the legal representatives of Ricardina apply for  hearing of the said application on merits within a period  of four weeks by taking steps to comply with the  requirements of Rule 14(2) and (3) of the rules, we direct  the State Government to decide the said application  afresh on its own merits.  The restoration application may  be decided as expeditiously as possible and preferably  within a period of six months after compliance.  We  make it clear that the respondent no.3 has no title, as at  present, to the share of Eurico in the southern half  property, i.e. the subject property."           

It is now trite that ordinarily a writ court would not go into a disputed  question of title.  We have noticed some of the issues pending before  different courts only for the purpose of showing that the parties are at  loggerheads as regards the title of the property and in particular the legality  or validity of the alterations in the terms of the Will.  

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Before the High Court, the order of the Government of Goa was in  question.  The High Court was of the opinion that both the orders dated  16.09.1997 as well as 21.04.1999 were not passed by a competent authority   in terms of Section 15 of the Act and as such they were void ab initio.

The High Court, however, proceeded to hold that the matter is  required to be considered afresh by the Government or an authorized officer.   While, however, issuing the said direction, the court entered into a side  issue, namely, title of the successor of Respondent No.1 which, with respect,  was  not  warranted.  The dispute in regard to the  title of the properties is  pending decision in Suit No.154 of 1993.   The High Court, thus,  should  have allowed the Civil Court to go into the said question.

The statutory scheme under the said Act clearly shows that the  question of  title can be determined by the Civil Court and not by the  administrator or the Government of Goa.

The statute may not contain any explicit provision to hear a third party  but it is not excluded either.  The principle of natural justice as well as that  of  pro interesse suo would be applicable in such a situation.

It has not been disputed that the Civil Court would be the final  authority in this behalf.  If that is so, the Administrator would be bound by  the judgment of the Civil Court.

We have furthermore noticed hereinbefore that the Appellant had not  been heard before the Custodian.  If he is claiming title over the property,  indisputably he would suffer substantial injury, if possession is restored in  favour of  Respondent No.1 herein. The Act also contemplates determination  of disputed question of title by the Civil Court.

Keeping  in view the peculiar facts and circumstances of this case, we  are of the opinion that with a view to do complete justice between the  parties, the following directions shall be issued :

(i)     The Civil Court would dispose of  Suit No.154 of 1993 as  expeditiously as possible and preferably within a period of six months from  the date of receipt of a copy of this order, without being in any way  influenced by the observations made by the High Court;        (ii)    The Civil Court shall not grant any adjournment to the parties,  save and except for sufficient and cogent reasons; (iii)   The appropriate authority shall consider the application filed by  the Respondents herein after the decision of the said suit in accordance with  law.   (iv)    In the said proceedings, the Appellant may also be heard.  (v)      It would be open to the parties to raise all contentions before  the said authority.

The appeal is allowed to the extent mentioned hereinabove.  The  parties, in the facts and circumstances of the case,  shall pay and bear their  own costs.