SITABAI SHANTARAM TALAWNEKAR & ORS.versusCUSTODIAN OF EVACUEE PROPERTY & ORS.

                        [2020] 3 S.C.R. 1007                            1007


         SITABAI SHANTARAM TALAWNEKAR & ORS.                            A
                                 v.
         CUSTODIAN OF EVACUEE PROPERTY & ORS.
                (Civil Appeal Nos. 8802-8803 of 2013)
                       FEBRUARY 25, 2020                                B
   [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) –         C
Property in question an evacuee property – Under supervision of
Custodian under the Act – Appellants in possession thereof as tenants
of custodian – Application by respondent No.2 under s.7 and 8-A
of Goa Daman and Diu Agricultural Tenancy Act, 1964 to declare
him tenant of portion of the property in question – Claim of
                                                                        D
respondent allowed by the Authorities and Courts below – Appeal
to Supreme Court – Held: The claim of 2nd respondent has been
allowed without recording any valid reasons based on acceptable
evidence to prove the claimed tenancy – Respondent No.2 has failed
to prove his tenancy as well as his deemed tenancy – Even to claim
sub-tenancy through the tenants/appellants, there was no prior          E
approval from the custodian as contemplated u/s.32 – Goa, Daman
and Diu Agricultural Tenancy Act, 1964 – ss.7 and 8A.
        Allowing the appeals, the Court
      HELD: 1. The claim of the 2nd respondent is allowed
without recording any valid reasons based on acceptable evidence        F
to prove the tenancy as claimed by him. The 2nd respondent has
not claimed tenancy directly from the Custodian, in absence of
which he cannot have the benefit of Amending Act 19 of 1989.
Amending Act 19 of 1989 which amends the Goa, Daman and Diu
Administration of Evacuee Property Act, 1964 and the Goa,               G
Daman and Diu Agricultural Tenancy Act, 1964 makes it clear
that ‘tenancy’ means the relationship existing between tenant
and the Custodian. [Para 9][1013-C-D]
      2. The 2nd respondent has not claimed tenancy on the basis
of relationship existing with the Custodian. Further, by virtue of      H
                                1007
1008            SUPREME COURT REPORTS                      [2020] 3 S.C.R.


 A     Section 3, as amended, the provisions of Tenancy Act are made
       applicable only to agricultural land and tenancies created by the
       Custodian. The said provision is a provision overriding other
       laws. Even as per the claim of the 2nd respondent he was not in
       possession at the time of making the application but it was his
       case that he was dispossessed after the appellants’ predecessors
 B
       obtained injunction orders in Civil Suit No.126 of 1984. As such,
       he has claimed to be a deemed tenant within the meaning of
       Section 4 of the Tenancy Act. To establish deemed tenancy under
       Section 4 of the Tenancy Act, one has to prove that person
       claiming deemed tenancy was in possession on or after the 1st of
 C     July 1962 and before the commencement of the Act, i.e.,
       08.02.1965. The 2nd respondent has not filed any acceptable
       documentary evidence to prove that he was in possession during
       the relevant time to claim tenancy. Even to claim sub-tenancy or
       transfer from the predecessor of the appellants, who was
       admittedly tenant from the Custodian under the provisions of
 D
       the Evacuee Property Act, there was no prior approval from the
       Custodian as contemplated under Section 32 of the Evacuee
       Property Act. The primary authority, though referred to various
       objections raised by the appellants herein, has allowed the
       application based on the alleged oral settlement by the appellants’
 E     predecessor and the 2nd respondent. Such oral settlement which
       is disputed by the appellants cannot be the basis for grant of
       tenancy rights on the application made by the 2nd respondent.
       [Para 9][1013-D-H; 1014-A-B]
             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8802-
 F     8803 of 2013.
             From the Judgment and Order dated 08.05.2009 of the High Court
       of Bombay at Goa in Writ Petition No. 142 of 2009 and order dated
       09.09.2009 in L.P.A. No. 14 of 2009.
             With
 G
             Contempt 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.
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SITABAI SHANTARAM TALAWNEKAR & ORS. v. CUSTODIAN OF                              1009
              EVACUEE PROPERTY & ORS.

     Pratap Venugopal, Ms. Surekha Raman, Ms. Ayushi Gaur, Akhil                 A
Abraham Roy, Vijay Valsan, M/S. K J John And Co., Abhinav Mukerji,
Samarth Khanna, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs. for the
Respondents.
       The Judgment of the Court was delivered by
       R. SUBHASH REDDY, J.                                                      B

       Civil Appeal Nos.8802-8803 of 2013
       1. These civil appeals are filed, aggrieved by the judgment and
order dated 08.05.2009 passed in W.P. No.142 of 2009 and the judgment
and order dated 09.09.2009 passed in L.P.A. No.14 of 2009 by the High            C
Court 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 of
Goa. The said property originally belonged to one Eurico de Soza Joquem          D
Noroana. After the liberation of Goa the said property was declared as
evacuee property and same was under the supervision of the Custodian
of Evacuee Property, under provisions of the Goa, Daman and Diu
Administration of Evacuee Property Act, 1964 (for short, ‘Evacuee
Property Act’). The appellants claim to be in possession of the aforesaid
properties as tenants of the Custodian. When there was a dispute between         E
the predecessors of the appellants and the 2 nd respondent (now
represented by his legal heirs), the predecessors of the appellants filed
Civil 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 the             F
Civil Judge, Senior Division, Bicholim granted ex-parte injunction in the
civil suit and it is stated that the appeal filed before the District Judge by
the 2nd respondent ended in dismissal. On 05.11.1984 respondent no.2
filed an application before the Court of Custodian of Evacuee Property,
Panji, claiming that he was in possession of the portion of cashew garden
and the appellants were trying to evict him as he was not paying the             G
exorbitant rent demanded by the appellants. Vide order dated 21.01.1986
the Custodian of Evacuee Property dismissed the application of respondent
no.2. Alleging that inspite of injunction orders obtained by the appellants
in Civil Suit No.126 of 1984, respondents were interfering with the property
in question, the appellants got police protection from the trial court vide
                                                                                 H
1010             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A     order dated 29.08.1989. Thereafter the 2nd respondent filed Regular
       Civil Suit No.60 of 1990 in respect of portion of property covered by
       Survey Nos.114 and 116 and the said suit ended in dismissal vide order
       dated 18.12.1992.
                3. As per Section 56 of Goa, Daman and Diu Agricultural Tenancy
 B     Act, 1964 (hereinafter referred to as, ‘the Tenancy Act’), the Act was
       not applicable in respect of evacuee properties. By virtue of Goa
       Administration of Evacuee Property (Amendment) Act, 1989, the
       provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were
       made applicable to the evacuee properties. In view of such amendment,
       respondent no.2 filed an application under Sections 7 and 8-A of the
 C     Tenancy Act seeking declaration that he is a tenant of the portion of the
       suit 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 allowed
       the application declaring the 2nd respondent as a tenant. The said order
       is confirmed by the appellate authority vide order dated 08.01.2003 and
 D     further confirmed by Administrative Tribunal vide order dated 30.12.2008.
       When the appellants have filed writ petition in W.P.No.142 of 2009
       questioning the aforesaid orders, learned Single Judge of the High Court
       of 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 of
       Letters Patent Appeal, same is dismissed as not maintainable. Though
 E     the 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 have
       heard the matter on merits with the consent of the learned advocates
       appearing on both sides.
             4. Learned senior counsel Sri Siddharth Bhatnagar appearing for
 F     the appellants has contended that the application of the 2 nd respondent
       claiming tenancy was allowed without recording any valid reasons in
       support of the claim. It is submitted that the alleged oral compromise is
       made basis by the primary authority for allowing the application without
       examining the relevant aspects as per the provisions of Tenancy Act for
 G     declaration of tenant. It is submitted that there is no evidence on record
       to show that 2nd respondent was a ‘tenant’ or ‘deemed tenant’ within
       the meaning of the Tenancy Act and rules made thereunder to allow his
       application for declaration of tenancy rights. It is further submitted that
       undisputedly land in question is an evacuee property governed by the
       provisions of the Evacuee Property Act and that though originally the
 H
SITABAI SHANTARAM TALAWNEKAR & ORS. v. CUSTODIAN OF                           1011
    EVACUEE PROPERTY & ORS. [R. SUBHASH REDDY, J.]

Tenancy Act was not applicable to evacuee properties but only by virtue       A
of Amending Act 19 of 1989, the said Act is made applicable to evacuee
properties for tenancies created by Custodian. It is further submitted
that in absence of any acceptable evidence on record to show that 2nd
respondent was tenant of the land in question his claim was erroneously
allowed by the primary authority and no other authority, namely, appellate
                                                                              B
and revisional authorities and the learned Single Judge of the High Court
have considered the matter in proper perspective and have confirmed
the order mechanically.
        5. On the other hand, Sri P. Venugopal, learned counsel appearing
for the legal heirs of the 2nd respondent, has submitted that there is a
concurrent finding by all the authorities which is confirmed by learned       C
Single Judge of the High Court, as such, there are no grounds to interfere
with the same. It is submitted that the parties are related and the 2nd
respondent was in possession of a portion of the land which is covered
by the application claiming tenancy rights and the oral evidence led before
the primary authority confirms the possession of the 2 nd respondent. It is   D
further submitted that in view of the available oral and documentary
evidence on record, the primary authority has declared tenancy in favour
of 2nd respondent and there are no grounds to interfere with the impugned
orders passed by the High Court confirming the orders of the statutory
authorities.
                                                                              E
      6. Having heard learned counsels on both sides, we have perused
the impugned order and other material placed on record.
        7. The Goa, Daman and Diu Agricultural Tenancy Act, 1964 is an
Act to provide for the regulation of the terms of tenancy with respect to
agricultural lands in the Union Territory of Goa, Daman and Diu. Section      F
2 sub-section (23) of the Tenancy Act defines the term, ‘tenant’. As per
the aforesaid Section ‘tenant’ means a person who on or after the date
of commencement of the Act holds land on lease and cultivates it
personally and includes a person who is or was deemed to be a tenant
under the Act. Section 4 of the Tenancy Act deals with the ‘persons
deemed to be tenants’. As per Section 4 deemed tenant is a person             G
lawfully cultivating any land belonging to another person on or after the
1st 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 Administration
of Evacuee Property Act, 1964.                                                H
1012             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A           8. The Goa, Daman and Diu Administration of Evacuee Property
       Act, 1964 and the Goa, Daman and Diu Agricultural Tenancy Act, 1964
       are amended by the Amending Act 19 of 1989, extending the benefits of
       Tenancy Act to the evacuee properties. As per Section 2(kkk) of the
       Amending Act, ‘tenancy’ means the relationship existing between the
       tenant and the Custodian; and as per Section 2(kkkk) ‘tenant’ means a
 B
       person who on or after the date of commencement of the Goa
       Administration of Evacuee Property (Amendment) Act, 1989, holds land
       and cultivates it personally but does not include a person who holds land
       on lease for the purpose of plucking the fruits only. Section 3 of the
       Amending Act amends Section 3 of the principal Act, to override other
 C     laws. 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 Goa
             Administration of Evacuee Property (Amendment) Act, 1989, the
             provisions of the Goa, Daman and Diu Agricultural Tenancy Act,
 D           1964 (Act 7 of 1964), for the time being in force, shall apply in
             respect of agricultural land and tenancies created by the Custodian.
             (2) The provisions of this section shall, save as otherwise expressly
             provided, have effect notwithstanding anything to the contrary
             contained in any instrument having effect by virtue of any such
 E           law.”
              A reading of definition of ‘tenancy’ and ‘tenant’ coupled with the
       amended Section 3 of the principal Act makes it clear that the provisions
       of Goa, Daman and Diu Agricultural Tenancy Act, 1964 are made
       applicable only to agricultural land and tenancies created by the Custodian.
 F     There is yet another important aspect which has bearing on the issue is
       the provision under Section 32 of the Evacuee Property Act which reads
       as under :
             “32. Transactions relating to evacuee property void in
             certain circumstances.-(1) As from the commencement of this
 G           Act, no transfer of or transaction in respect of any property
             belonging to a Portuguese national shall be valid unless it is made
             with the previous approval of the Custodian.
             (2) Subject to the other provisions contained in this Act, every
             transaction entered into by any person in respect of property
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SITABAI SHANTARAM TALAWNEKAR & ORS. v. CUSTODIAN OF                           1013
    EVACUEE PROPERTY & ORS. [R. SUBHASH REDDY, J.]

      declared or deemed to be declared to be evacuee property within         A
      the meaning of this Act shall be void unless entered into by or
      with the previous approval of the Custodian”
       Section 32, as referred to above, makes it clear that any transfer
or transaction in respect of any evacuee property is not valid unless it is
made with the previous approval of the Custodian.                             B
       9. From a perusal of the impugned orders passed by the primary
authority, appellate authority and the revisional authority and the order
of the learned Single Judge of the High Court, we are of the view that
the claim of the 2nd respondent is allowed without recording any valid
reasons based on acceptable evidence to prove the tenancy as claimed          C
by him. The 2nd respondent has not claimed tenancy directly from the
Custodian, in absence of which he cannot have the benefit of Amending
Act 19 of 1989. Amending Act 19 of 1989 which amends the Goa, Daman
and 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 the              D
Custodian. The 2nd respondent has not claimed tenancy on the basis of
relationship existing with the Custodian. Further, by virtue of Section 3,
as amended, the provisions of Tenancy Act are made applicable only to
agricultural land and tenancies created by the Custodian. The said
provision is a provision overriding other laws. Even as per the claim of      E
the 2nd respondent he was not in possession at the time of making the
application but it was his case that he was dispossessed after the
appellants’ predecessors obtained injunction orders in Civil Suit No.126
of 1984. As such, he has claimed to be a deemed tenant within the
meaning of Section 4 of the Tenancy Act. To establish deemed tenancy
under Section 4 of the Tenancy Act, one has to prove that person claiming     F
deemed tenancy was in possession on or after the 1st of July 1962 and
before the commencement of the Act, i.e., 08.02.1965. The 2nd respondent
has not filed any acceptable documentary evidence to prove that he was
in possession during the relevant time to claim tenancy. Even to claim
sub-tenancy or transfer from the predecessor of the appellants, who           G
was admittedly tenant from the Custodian under the provisions of the
Evacuee Property Act, there was no prior approval from the Custodian
as contemplated under Section 32 of the Evacuee Property Act. The
primary authority, though referred to various objections raised by the
appellants herein, has allowed the application based on the alleged oral
                                                                              H
1014             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A     settlement by the appellants’ predecessor and the 2nd respondent. Such
       oral settlement which is disputed by the appellants cannot be the basis
       for grant of tenancy rights on the application made by the 2nd respondent.
       Even the appellate and revisional authorities have not considered the
       relevant aspects and disposed of the appeal and revision. Learned Single
       Judge of the High Court, by giving credence to the inspection report and
 B
       excise licences obtained by 2nd respondent, has confirmed the order
       passed by the authorities.
              10. For the aforesaid reasons, we allow these appeals and set
       aside the impugned orders, consequently the application filed by the 2 nd
       respondent before the Joint Mamlatdar-I of Bicholim in Case No.JM/-1/
 C     TNC/19/95 stands dismissed.
              Contempt Petition(C)Nos.187-188 of 2012
              11. In the Special Leave Petitions, while issuing notice on
       14.12.2009, this Court has ordered to maintain status quo with regard to
 D     possession of the lands in question. Alleging that legal representatives of
       the 2nd respondent have violated the said order, appellants have moved
       the contempt petitions. In view of the final orders passed by this Court in
       these civil appeals it is not necessary to pass any orders in these contempt
       petitions at this stage. Accordingly, these contempt cases are closed.

 E
       Kalpana K. Tripathy                                          Appeals allowed.




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