State vs Shri Jovito Gonzago Afonso Taliegao

A.P. Lavande, J.—Heard Mrs. Linhares, learned Additional Government Advocate for the Petitioner in both the petitions and Mr. Dias, learned Counsel for the Respondent in both the petitions.

Rule. By consent of learned Counsel for the parties, both the petitions are heard forthwith.

Both these petitions filed under Article 227 of the Constitution of India, are being disposed of by common judgment since the facts and the questions of law involved in both these petitions are almost identical.

At the instance of the Petitioner, proceedings were initiated u/s 40 of The Goa, Daman and Diu Land Revenue Code, 1968 (''The Code'' for short) by Deputy Collector and Sub-Divisional Officer, Panaji against the Respondents in both the petitions on the ground that they had encroached upon the government land to the extent of 567 square metres and 468 square metres respectively. After the notice was issued to the Respondents, the Respondents filed their replies. During the course of enquiry the Respondents contended that they wanted to cross-examine the Executive Engineer at whose instance the proceedings were initiated u/s 40 of The Code. By two separate orders dated 18th June, 2001, the Deputy Collector and S.D.O. rejected the applications and fixed the matter for arguments.

Against the said orders, the Respondents herein preferred Revision Application Nos. 12/2001 and 13/2001 respectively before the State Government. The Secretary (Revenue), Government of Goa, who heard the revision applications, by two separate orders dated 27th April, 2007 set aside the orders dated 18th June, 2001. The revisional authority although observed that he was upholding the order of Deputy Collector, directed that an opportunity to cross-examine the complainant on the subject be given as cross-examination is an instrument to find out the truth.

Mrs. Linhares, learned Additional Government Advocate for the Petitioner in both the petitions placing reliance upon the judgments of the Apex Court in the case of Kaisar-I-Hind Pvt. Ltd. and Anr. v. National Textile Corpn. (Maharashtra North) Ltd. and Ors. (2007) 8 SCC 182 and Division Bench judgment of this Court in the case of Maria Berta da Costa Miranda and Others etc. Vs. The Court of the Deputy Collector, Goa North Division, Panjim and Others, submitted that u/s 40 of The Code, a summary enquiry is contemplated and as such, there is no question of giving an opportunity of cross-examination to the Respondent. According to Mrs. Linhares, the very purpose of enacting Section 40 of The Code would be defeated if an opportunity of cross-examination of the applicant and an opportunity to lead evidence is given to the Respondents, the enquiry being summary in nature.

Per contra, Mr. Dias, placing reliance upon Sections 165, 179 and 184 of The Code submitted that even in respect of an enquiry u/s 40 of The Code, the authority is bound to give an opportunity to cross-examine the applicant and to lead evidence of the Respondents.

I have considered the rival submissions and perused the record and judgments relied upon.

Perusal of the impugned orders disclose that the revisional authority after stating the factual background and the rival contentions, has allowed the revision applications. The operative part of the impugned orders reads thus:

On careful consideration of the entire matter, I Raajiv Yaduvanshi Secretary (Revenue) am of the view that the Petitioner be given an opportunity to cross examine the complainant on the subject as cross-examination is an instrument to find out the truth. Hence, I uphold the order of Dy. Collector and S.D.O., Panaji dated 18/06/2001 and direct for cross-examination.

Bare perusal of the impugned orders discloses that the revisional authority has not considered the provisions of The Code and has abruptly come to the conclusion that the Respondent is entitled to cross-examine the complainant as cross-examination is an instrument to find out the truth. In this factual background, I deem it appropriate to set aside the impugned orders passed by the revisional authority and remand the matter for fresh decision.

In view of the above, the impugned orders dated 27th April, 2007 passed by the Secretary (Revenue), Government of Goa in Revision Application Nos. 12 and 13 of 2001 are quashed and set aside and revisional authority is directed to decide the revision applications afresh after giving an opportunity of being heard to both sides in accordance with law. Needless to mention that the revisional authority is expected to consider relevant provisions of The Code to arrive at the decision regarding the scope of enquiry u/s 40 of The Code.

Since the alleged encroachment pertains to the period prior to 2001, I deem it appropriate to direct the revisional authority to decide the revision applications expeditiously and in any case on or before 30th June, 2011. The parties to appear before the revisional authority on 27th April, 2011 at 3.00 p.m.

Rule is made partly absolute in aforesaid terms with no orders as to costs.