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Judgment
We proceed on the basis that the petition is amended and even the amended submissions and prayers are incorporated in the original Writ Petition. This Writ Petition seeks a Writ of Certiorari or any other appropriate Writ, direction and/or order, quashing the impugned letter dated 22.9.2010 and the letter dated 15.12.2010. What is essentially sought are the reliefs mentioned in prayer clauses (a), (b) and (c) in this Writ Petition which is mandamus to respondents no. 2 and 3 directing them and their agents, servants, representatives, and/or contractors or such other persons acting on their behalf from doing any further construction in the property, which is claimed by the petitioners bearing survey no. 64/1(part) admeasuring 1.6600 hectares from the property, which was resumed in pursuance to the order dated 19.4.1977.
Petitioners claim that one Luis Manuel Andrade, the grandfather of petitioner no.1, was granted Aformento under the Decree bearing no.3.602 dated 24.11.1917, a plot of land belonging to the government and more particularly described in paragraph 3(b) of this Writ Petition and annexure "A" thereto.
After stating as to how the petitioners are successors in title of the said Luis Manuel Andrade, what has been stated is that by an earlier order dated 1.6.1968, the plot assigned to the predecessor-in-title of the petitioners reverted to the Government on the ground that the petitioners'' predecessor-in-title, Luis Manuel Andrade, had failed to bring the plot in complete regular cultivation. Subsequently, it was revealed that the predecessor-in-title had brought some land under cultivation and that was admeasuring 1.6600 hectares. Therefore, the said portion which was cultivated by the petitioners'' predecessor-in-title was resumed to the assignee. Reliance is placed upon the order dated 19.4.1977. The petitioners claim that this very land is depicted on the plan. However, it is the case of the very petitioners that the name of petitioner no.1 was not indicated in the survey records of the property bearing survey no. 64/1(part) of Masordem Village of Sattari Taluka, and that came to the knowledge of the petitioners only when respondent no. 2 tried to interfere with their ownership and possession for purported construction of a footpath along their property.
It is in such circumstances that the petitioners approached the Civil Court namely Court of Civil Judge, Junior Division at Valpoi by filing Regular Civil Suit No. 15/2010 seeking to restrain respondent no. 2 from making any construction and praying for reliefs prayed in terms of prayer clauses (b) and (c) of this Writ Petition.
It is not in dispute that the Civil Judge, Junior Division refused an interim injunction in the said suit. Therefore, the petitioners have preferred an appeal being Miscellaneous Civil Appeal No. 95/2011 and that appeal is pending.
It is argued that on the basis of the documents, which are annexed to this Writ Petition and particularly the plan at page 58 ''E'', that the petitioners could not, in the said suit, point out that their title and possession was never in dispute. If it was not in dispute, there was no occasion for even the Collector to refer to the possession as emerging not only from the record but also on promulgation of Goa Land Revenue ( Modification and Regulation of Grants Code under the decree no. 3.602 dated 24.11.1917) Act, 2007. Reliance is therefore placed on the communications and the information obtained pursuant to the application, under the Right to Information Act, 2005. Once the office of the Collector North Goa, District has in a written communication to the Government specified that the land under survey no. 64/1(part) has structure and trees, then this is not a case of there being any dispute with regard to the title of the property or petitioners failing to identify the property in question. On this count, it is submitted by learned Senior Counsel for the petitioners that this is a clear case where petitioners proprietory rights have been interfered with without due process of law. This is a case where State is taking away the right without acquiring any title to the property or without due process of law otherwise and under these circumstances, a writ of mandamus could be issued directing the State and respondent no. 2 from carrying out any construction as prayed in the petition.
On the other hand, Mr. Nadkarni, learned Senior Counsel appearing for respondent no. 2 submitted that in the affidavit in reply it has been contended that this is not a petition which could lie on the basis of any undisputed or substantive right in the property. In fact this is nothing but an attempt to obtain the same relief, which petitioners could not succeed in getting in their own civil suit. Now some documents are sought to be relied upon. What emerges in this petition is that there may be certain piece of land under this survey number 64/1(part) with structure and trees, plantation existing there on, yet, it has never been identified by the petitioners. Petitioners failing to identify the land, the Civil Court refused to grant the injunctive relief. Now these documents do not carry the case any further and this Court cannot hold an inquiry in the seriously disputed questions of facts and particularly with regard to identification of the property. For all these reasons petition deserves to be dismissed.
With the assistance of Mr. J. E. Coelho Pereira, and Mr. A. N. S. Nadkarni, we have perused the petition and the annexures thereto so also the affidavits placed on record. We have also perused the statutory provisions and the decisions of the Supreme Court brought to our notice. We are afraid that in Writ Petition, it will not be possible for us to undertake an exercise of identifying the area admeasuring 1.6600 hectares in plot no.64/1(part). The decisions on which reliance is placed by the petitioners are involving the cases of undisputed rights in the property and which have been interfered with by the State without any authority of law. Even an open space in private property which is needed by the State and its authority cannot be acquired except by authority of law. The writ Court on the basis of parties identifying the plot interfered with the decision in which there was absence of authority of law. The cases do not involve seriously disputed questions of title and identification of immovable property.
In the instant case, even if the communication relied upon by the petitioners is perused, it would be evident that the order of resumption and prior there to the earlier order, where by the State reverted the property are referred to. There is also reference to the structure and some plantation. However, there is a dispute with regard to the identification of the property and this dispute does not arise only because of the case set out in the affidavit by respondent no.2. We are unable to accept the argument of Mr. C. Pereira, that this is a case where the conduct of respondents other than respondent no. 2, would show that there is no dispute about identification of the property. Now they cannot raise any arguments contrary to the written documents and letter addressed by them. Therefore, there being no reply on their behalf, petitioners'' case is deemed to have been accepted is the submission. It is not possible to accept this submission because the petitioners come with a pleading in the petition that their names do not appear in the occupant''s column in form I and XIV of the survey record but the name of the cousin of petitioner no.1, who is also grandson of late Luis Manuel Andrade, appears in the other rights column as "House owned" by Antonio Roncon. Now the petitioner no.1 has affirmed the entire petition, as duly constituted power of attorney of petitioners no. 2 to 4. It is petitioners'' case that name of the petitioner no.1 was not included in the survey record and this fact came to their knowledge recently. If that be the case, then we are afraid, the same is based on the allegations in the civil suit. In the civil suit, the very argument was canvassed as is evident from the pleadings in the said suit. Further the argument based on the pleadings before the Civil court is also more or less identical. Reference can be usefully made to the paragraphs 41 and 46 of the order of the trial Court. In this Court, the very documents including the sketch prepared by the expert Celso Rodrgiues have been relied upon. They have been placed before the trial Court and necessary statements and allegations are made in the suit in that behalf. The same pleas cannot be raised in a writ jurisdiction as petitioners are aware of the remedy that they have to choose to prove and establish their title and possession. They cannot therefore even on basis of subsequent facts or documents file a writ petition and raise disputed questions of fact for determination and adjudication of a Court exercising powers under Article 226 of the Constitution of India. Nothing prevented the petitioners from approaching the Civil Court either by making amendment to the plaint or by producing the documents in the pending appeal or by instituting substantive proceedings annexing therewith letters and communication which are subject matter of this writ petition. Once we are of the opinion that we are not interfering with disputed question of facts and writ petition is not the remedy of the petitioners, we should not be taken to have expressed any opinion on the rival contentions of the parties. Suffice it to say that with a view to impress upon the petitioners, that this is not their remedy, we have made reference, rather elaborately to the arguments and the controversy in this petition. Having found that in our limited jurisdiction we cannot interfere and there is alternate and efficacious remedy available to the petitioners to assert their rights to the property and claim restraint against on going construction, we are further of the opinion that this Writ Petition cannot be entertained and it is accordingly disposed of. We have no doubt in our mind that if the petitioners institute substantive proceeding in a competent Court and apply for interim or ad-interim relief, the competent Court would take up their application and dispose of the same expeditiously considering that the construction activities are in progress at site as alleged. All contentions of both sides in relation to the jurisdiction of the Court, maintainability of the suit or proceedings and merits of the petitioners'' claim, are kept open. Writ Petition disposed off. No costs.