Bombay High Court

Hari Gopal Naik (Dec) Thr. His Lrs vs Pandurang Kashinath Patkar And 5 Ors on 8 August, 2024

2024:BHC-GOA:1279
2024:BHC-GOA:1279                             WP.1085/2019




                Shakuntala



                        IN THE HIGH COURT OF BOMBAY AT GOA
                                   WRIT PETITION NO.1085 OF 2019

                1) Shree Hari Gopal Naik (Since deceased)
                Through his legal heirs
                1.a) Smt. Ramabai Hari Naik,
                1.b)Shri Gopal Hari Naik,
                1.c) Mrs. Rajeshri Gopal Naik,
                1.d) Shri Nagoji Hari Naik,
                1.e) Mrs. Sneha Nagoji Naik,
                1.f)Shri Vaman Hari Naik,
                1.g) Mrs. Veena Vaman Naik,
                All r/o Torsem, Pernem, Goa.                                   ...PETITIONER

                VERSUS

                1) Shri Pandurang Kashinath Patkar(deceased)
                r/o H.No.5/27/C, Altinho, Mapusa,
                Bardez, Goa.

                1(a) Mrs. Mohini Pandurang Patkar,
                W/o. Late Mr. Pandurang Kashinath Patkar,

                1(b) Mr. Siddhesh Pandurang Patkar,
                S/o late Mr. Pandurang Kashinath Patkar,

                1(c) Mrs. Deepa Siddhesh Patkar,
                W/o Mr. Siddhesh Pandurang Patkar,

                1(d) Mrs. Nivedita Kiran Patkar,
                D/o late Mr. Pandurang Kashinath Patkar,

                1(e) Mr. Kiran Patkar

                1(f) Mrs. Nilambari Vira,
                W/o Nilesh Vira

                1(g) Mr. Nilesh Vira,
                All residents of H.No. 5/27/C, Altinho,
                Mapusa, Bardez, Goa.



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                                    WP.1085/2019




 2. Shri Jeetendra Deshprabhu(Deceased)
 2(a) Mrs. Rupa Jitendra Deshprabhu,
 w/o Shri Jeetendra Deshprabhu,
 Major in age, Indian National,
 R/o Nanerwada, Pernem-Goa.

 2(b) Ms. Mrinalini Jitendra Deshprabhu
 D/o Shri Jeetendra Deshprabhu,
 major of age, Indian National,
 R/o Nanerwada, Pernem-Goa.

 3) Shri Devendra Deshprabhu,
 Both residing at Nanerwada,
 Pernem-Goa

 4) Smt. Jaya alias Sitadevi Raghunath Rao/Deshprabhu
 since deceased through Lrs
 4.a) Mrs. Anjalica or Anjalika Raghunath/Deshprabh
 4.b) Mr. Satish Sripad Ugrankar,
 Both r/o Ram Mahal J.N. Tata Road, Mumbai.
 4.c) Mrs. Achaladevi alias Achala Raghunath Deshprabhu
 4.d) Mr. Dilip Mahabal Kulkarni
 Both r/o H.No. 23/B, New Neelsagar Co-op.
 Housing Society, A/B Perry Cross Road,
 Bandra (W) Mumbai

 5)Smt. Sunita Devendra Deshprahbu
 R/o Nanerwada, Pernem Goa.

 6) Smt. Roopa Jitendra Deshprabhu,
 R/o Nanerwada, Pernem-Goa                                 ..RESPONDENTS

 Mr. J. Godinho, Advocate for the Petitioner.

 Mr. Parag Rao with Mr. Ajay Menon, Advocates for Respondents.

                               CORAM:- BHARAT P. DESHPANDE, J.
                               DATED :- 08 th August 2024


 ORAL JUDGMENT.

1. Rule.

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2. Rule is made returnable forthwith.

3. The matter is taken up for final disposal at the

admission stage with consent.

4. Heard Mr. Godinho learned counsel for the Petitioner

and Mr. Rao learned counsel for the Respondents.

5. The petition is filed challenging the three concurrent

orders whereby claim of the Petitioner regarding tenancy is

rejected.

6. Mr. Godinho appearing for the Petitioner would

submit that the names of the Original Tenant was appearing

in Form III of the survey records and more particularly in the

suit property bearing survey number 143/1. However, such

name was suddenly bracketed without following due process

of law and without giving notice to the Petitioner.

7. Mr. Godinho would further submit that the Petitioner

filed application under Section 7 of the Agricultural Tenancy

Act for declaring him as a Tenant in the year 2004 and

produced relevant evidence including the rent receipts along

with the other documents. Even the witnesses were

examined and clearly deposed that the Petitioner is the

Tenant of the said land. However, concerned Mamlatdar

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failed to appreciate such evidence and arrived at an incorrect

finding.

8. He submitted that an appeal was filed before the

Deputy Collector, however, the appeal was dismissed. The

Petitioner then filed a revision before the Administrative

Tribunal. However, such revision was also rejected.

9. Mr. Godinho submits that the part of said land was

acquired by the Government and since the name of the

Petitioner was appearing in Form III, he was paid

compensation to that effect. According to him this fact

clearly proves the possession of tenanted land by the

Petitioner. However, all the authorities failed to consider it

including that the fact that the name of Petitioner was

appearing in Form III which was subsequently deleted

without following due process of law.

10. Per Contra, Mr. Rao appearing for Respondent would

submit that the Petitioner was unsuccessful before three

authorities who appreciated the evidence and recorded

finding of facts. Such observations of three Courts on facts

cannot be re-appreciated while entertaining the petition filed

under Article 227 of Constitution of India.

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11. Besides Mr. Rao would submit that the evidence

produced on record before the Mamlatdar would clearly go

to show that the Petitioner was not the Tenant of the suit

land and more particularly survey no.143/1. He submits that

rent receipts are clearly of a different land which has been

admitted by the Petitioner during cross examination. He

submits that after carefully assessing the evidence, findings

on fact is recorded that the land in question is a rocky land

and consisting of forest trees including few cashew trees. The

contentions of the Petitioner that he was cultivating the land

for paddy crop is unbelievable.

12. Mr. Rao placed reliance on the following decisions:-(a)

Shalini Shyam Shetty and Another Vs. Rajendra

Shankar Patil, (2010) 8 SCC 329; (b) Radhey Shyam

and Another Vs. Chhabi Nath and others, (2015) 5

SCC 423;(c) Jai Singh and Others Vs. Municipal

Corporation of Delhi and Another, (2010) 9

Supreme Court Cases 385 and (d) Surya Dev Rai Vs.

Ram Chander Rai and others, (2003) 6 Supreme

Court Cases.

13. Petition is filed basically challenging three concurrent

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decisions which are against the Petitioner. Admittedly, the

application for declaration of tenancy rights was filed before

the Mamlatdar and after giving full opportunity to the

Petitioner to produce evidence, it was rejected by a reasoned

order. Such findings were challenged before the First

Appellate Authority i.e. the Deputy Collector by filing appeal

which again came to be rejected thereby upholding the order

of the Mamlatdar.

14. The Petitioner then filed a revision before the

Administrative Tribunal which was finally disposed of on

13.06.2019. The Revisional Court observed that there is no

illegality or perversity in orders passed by the two

authorities. Thus, it is clear from the record that the three

authorities considered the evidence produced by the

Petitioner and found that such evidence is not sufficient

enough to consider the Petitioner as a Tenant of the said

property.

15. It is settled proposition of law that while considering

such decisions under the supervisory jurisdiction of this

Court under Article 227 of the Constitution of India, the

scope is very limited. It is not permissible to re-appreciate

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evidence so as to assess the material produced by the

Petitioner before the concerned authorities.

16. Only scope for interference is when the orders passed

by the concerned authorities are found to be blatantly illegal

and perverse.

17. The first ground which has been raised is that the

name of the Petitioner was deleted from the survey records

and more particularly from Form III.

18. Such contention is considered by all the Courts

wherein it is found that the Petitioner himself in the cross

examination admitted that it was not concerned with the suit

property bearing survey no.143/1. Besides, such property is

predominantly forest land having forest trees with a steep

slope. All the authorities found that it is not coming within

the purview of an agricultural land and more particularly

wherein a paddy crop could be cultivated.

19. The Form III of the survey records was admittedly, a

temporary arrangement till the survey is promulgated. It is

admitted that the name of Petitioners is not appearing in

Form I and XIV and the Petitioner never raised any

objections about his name being not included in the Form I

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and XIV. The presumption arises only with regard to the

promulgated survey records.

20. The second ground is that the portion of the land was

acquired and some part of compensation was paid to the

Petitioner. This aspect is also considered by the Courts below

and it was found that the evidence of the Petitioner clearly

goes to show and more particularly, admissions on his part

that the suit land bearing survey no. 143/1 was never in his

possession as a tenant or otherwise.

21. Thus, once this aspect is admitted, the question of

considering his name appearing in Form III, has no

substance.

22. The learned Mamlatdar, the Deputy Collector as well

as the Administrative Tribunal concurrently observed that no

case is made out for declaring the Petitioner as tenant of

survey no. 143/1. These findings of facts are based on the

material which was placed before the learned Mamlatdar and

appreciated by three authorities.

23. The observations of the Apex Court in the case of

Shalini Shetty (Supra) and more particularly in

paragraph 49 which reads thus:-

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49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High

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Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by Subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.



                                         08th August 2024






               (h)      In      exercise       of       its         power     of

superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India21 and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate- provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an

08th August 2024

appropriate case, the power can be exercised suo motu.

(1) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

24. This observations would clearly apply to the matter in

hand.

25. In the case of Surya Devi(supra) which is

considered in the case of Shalini Shetty(supra) also

required to be taken into account as far as exercise of

08th August 2024

jurisdiction of this Court. The other decisions cited by Mr.

Rao are already considered in the case of Shalini

Shetty(supra).

26. From the above observations, the fact remains that the

findings of facts arrived at by the Courts below cannot be re-

appreciated in the present proceedings and more specifically