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REPORTABLE IN THE SUPREME COURT OF INDIA

    CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.4995 OF 2014 (ARISING OUT OF SLP(C) NO.36661 OF 2013)

ANTONETTO JOHN D’SOUZA @ JOHNNY  D'SOUZA         … APPELLANT

VERUS

MRS. ALDILA BRAGANZA             … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

This  appeal  is  directed  against  the  judgement  dated  18th  

November, 2013 passed by the High Court of Bombay at Goa in Writ  

Petition No.622 of 2013. By the impugned judgment, the High Court  

quashed the order dated 28th March, 2013 passed by the Mamlatdar,  

Bardez and order dated 20th September, 2013 passed by the Additional  

Collector-II,  North  Goad  and  remitted  the  matter  to  Mamlatdar,  

Bardez to decide whether he has jurisdiction/powers to re-open the  

proceedings in question and to pass appropriate orders.

2. The factual matrix of the case is as follows:

The  respondent  alleged  the  blocking  of  her  traditional  

easementary  access  by  the  appellant  by  constructing  compound  

walls. Initially, an application under Section 4 of the Mamlatdar's  

Court Act (hereinafter referred to as the “Act”) was filed by the  

respondent  before  the  Mamlatdar  with  regard  to  the  said  

obstruction. The application came to be dismissed for default by  

order  dated  7th January,  2008  and  subsequently,  the  same  was  

restored.  The appellant filed a Revision Application before the  

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Collector against the order of restoration. In the said Revision  

Application  an  ex  parte  order  was  passed  by  the  Additional  

Collector-I,  Panaji  on  11th July,  2008  directing  the  Mamlatdar,  

Bardez to open the gate and remove the obstacles like the compound  

walls between Survey Nos.163/1 and 163/2 and Survey Nos.164/1 and  

163/10, 163/1,163/2 and 163/4,  to make openings enough  for free  

movement  of  an  ambulance  to enable  the  respondent  to take her  

father-in-law for medical treatment.

3. The  appellant  challenged  the  said  order  by  filing  Writ  

Petition No.422/2008 before the High Court and obtained an order of  

stay. The respondent and her father-in-law filed an appeal from  

Order No.59/2008, against the order dated 13th February, 2008 passed  

by the Civil Court at Mapusa, whereby the application for temporary  

and mandatory injunction filed by the respondent and her father-in-

law in Civil Suit No.134/07/B was dismissed. The said writ petition  

and appeal from order came to be disposed of by an order dated 4th  

May, 2009 which is as under:

“Mr. Usgaonkar, learned Senior Counsel applies for  withdrawal of the Appeal from Order No.59/2008 as  the  appellants  have  been  granted  a  satisfactory  alternate access by the Panchayat at Calangute. The  owner of the property through which the access is  now  granted  has  also  given  no  objetion  to  the  grant of access to the appellants as well as the  other  members.  Consequently,  the  petitioner's  relief  for  setting  aside  the  orders  of  the  Mamlatdar dated 7.3.2008 and 11.7.2008 is required  to be granted. The appellants in Appeal from Order  No.59/2008 concedes that the lis in the Mamlatdar  Court's no longer remains. Mr. Usgaonkar on behalf  of  the  appellants  undertakes  to  withdraw  the  application in the Mamlatdar's Court. However, the  office of the Village Panchayat, Calangute shall  issue the completion certificate requested by the  appellants which could not be issued due to the  election.  The  completion  certificate  shall  be  issued on or before 31.05.2009. The Writ Petition  No.422/2008 is disposed of accordingly and Appeal  

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from Order No.59/2008 is allowed to be withdrawn.”

4. The  respondent,  thereafter,  filed  Miscellaneous  Civil  

Application No.348/2011 in the said writ petition for recall of the  

order dated 4th May, 2009 passed in the writ petition, inter alia,  

on the ground that there was a misrepresentation before the Court  

that  there  was  a  suitable  alternate  access  available  to  the  

respondent. By order dated 14th March, 2012, the High Court observed  

that according to the learned Senior Counsel for respondent No.1  

(appellant herein) the access having width of 1.5 metres is found  

at  the  site,  but  the  said  contention  was  disputed  by  the  

respondent.  The  High  Court  to  verify  the  situation  at  loco,  

directed the Surveyor of the office of the Mamlatdar, Bardez to  

carry out the site inspection and ascertain whether the said access  

of  1.5 metres  as  depicted  in  the  plan  produced  on  record  was  

available on the site. As the said order was not complied with, by  

another order dated 18th April, 2012, passed in M.C.A. No.348/2011,  

the High Court directed Mamlatdar, Bardez to inspect and verify the  

width of alternate access provided to the respondent by the Village  

Panchayat of Calangute. The Surveyor attached to the office of the  

Mamlatdar conducted the inspection of the said alternate access on  

24th April, 2012 and prepared a report along with plan and submitted  

the same before the High Court. The said plan revealed that the  

said alternate access does not have a minimum uniform width of 1.5  

metres and at some places the width was not 1.5 metres and it  

varied at various other points.

5. Finally, by order dated 10th May, 2012, M.C.A. No.348/2011 came  

to be disposed of with the following observations:

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“5. The  Court  had  directed  the  learned  Mamlatdar to depute a surveyor to ascertain as to  whether such access is available at the site. The  learned  Mamlatdar  has  filed  an  affidavit  dated  10/05/2012 along with the report and the sketch. On  perusal  of  the  sketch  it  appears  that  at  some  places  the  width  is  not  1.5 metres.  Considering  such disputed questions, it is not for this Court  now to reconsider the matter in the Writ Petition  which has already been disposed of. But however, in  case  the  basis  on  which  the  petition  has  been  disposed of is not found at loco as sought to be  contended  by  the  appellant/petitioner  such  grievance will have to be raised by the petitioner  before  the  learned  Mamlatdar  in  accordance  with  law.

6. Shri  Nigel  Da  Costa  Frias,  the  learned  Counsel  appearing  for  the  applicant/  petitioner,  upon instructions of the applicant who is present  in Court, points out that he will not press for the  other contentions raised in the above application,  but however, he should be given an opportunity to  file an appropriate application before the leaned  Mamlatdar to get his grievances with regard to the  alternative access adjudicated.

7. Without going into the correctness of the  contentions  of  the  Counsel  in  respect  of  the  alternative access on the basis of which the Writ  Petition came ot be disposed of by this Court, the  petitioner  is  always  at  liberty  if  she  is  so  entitled  to  approach  the  learned  Mamlatdar  with  regard to her said claim of access to her property.  In case any such application is filed the learned  Mamlatdar  will  have  to  decide  the  same  after  hearing the concerned parties in accordance with  law.”

6. Thereafter,  the  respondent  filed  an  application  dated  29th  

June, 2012, before the Mamlatdar, Bardez to reopen the proceedings.  

By the judgment and order dated 28th March, 2013, the Mamlatdar,  

Bardez dismissed the said application. The Revision Application  

against the same was also dismissed on 20th September, 2013. Against  

the aforesaid order, the respondent filed a writ petition before  

the High Court. After hearing the parties by the impugned judgment,  

the  High  Court  while  setting  aside  the  order  passed  by  the  

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Mamlatdar and the Revisional Authority passed the following order:

“25. In the result, the petition partly succeeds.

(a) The impugned orders dated 28/03/2013 passed  by the Mamlatdar of Bardez  and 20/09/2013 passed  by the  Additional Collector- II,  North Goa,  are  quashed and set aside.

(b) The  matter  is  remanded  to  the  respondent  No.2 to decide whether for reasons stated in the  application  and  in  accordance  with  law,  he  has  jurisdiction/powers to re-open the said proceedings  bearing No.MAM/BAR/MCA/4/2007 and if he comes to  the conclusion that he has such powers, then to  adjudicate on the grievance of the petitioner with  regard to the altenate access.

(c)  If  the  respondent  No.2  finds  that  the  said  grievance of the petitioner is true and on account  of the same and for other reasons, he can re-open  the proceedings, then he shall proceed to dispose  of  the  said  case  No.MAM/BAR  /MCA/4/2007,  in  accordance with law, expeditiously.

(d) The contentions of the parties are kept open  for being made before the respondent No.2.

(e) Parties to appear before the respondent No.2  on 09/12/2013 at 3.00 p.m.”  

7. Learned counsel for the appellant contended that in terms of  

the order dated 27th April, 2009 of the Panchayat access has been  

provided through property bearing Survey No.162/9 for the benefit  

of respondent and other residents of the locality after the NOC of  

the owner of the property was taken, the only issue that was being  

considered by the High Court was that of alternative access. The  

grievance of the respondent that at some points the minimum access  

of  1.5  metres  was  not  available  was  also  assured  to  be  made  

available by the Panchayat by removing the trees. Therefore, the  

direction of the High Court to reopen the entire issue was uncalled  

for.

8. On  the  other  hand,  learned  counsel  for  the  respondent  

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submitted that earlier the High Court was misrepresented in view of  

the  order  passed  by  the  Panchayat  and  the  High  Court  rightly  

remitted the matter to decide the issue.

9. The dispute between the appellant and the respondent reached  

finality  when  the  High  Court  disposed  of  the  Writ  Petition  

No.422/2008 by order dated 4th May, 2009, therein the respondent  

conceded that the lis in the Mamlatdar Court’s no longer remains.  

Learned counsel on behalf of the respondent undertook to withdraw  

the application in the Mamlatdar’s Court. The office of the Village  

Panchayat,  Calangute  was  ordered  to  issue  the  completion  

certificate  as  requested  by  the  respondent  which  could  not  be  

issued due to the election. The High Court directed to issue the  

completion  certificate  on  or  before  31st May,  2009.  The  writ  

petition  was  disposed  of  accordingly  and  Appeal  from  Order  

No.59/2008 was allowed to be withdrawn.

10. The High Court considering the fact that disputed question of  

fact is involved in the case by order dated 10th May, 2011 observed  

that it was not for the High Court to reconsider the matter in the  

writ petition which has already been disposed of. However, in case  

the basis on which the petition has been disposed of is not found  

at loco as sought by the respondent such grievance will have to be  

raised by the respondent before the Mamlatdar in accordance with  

law.  Therefore,  without  going  into  the  correctness  of  the  

contentions of the parties in respect of the alternative access,  

the respondent was given liberty to approach the Mamlatdar, with  

regard to her claim of access to her property, who was asked to  

decide the same after hearing the concerned parties in accordance  

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with law.

11. No  direction  was  issued  by  the  High  Court  to  reopen  the  

matter. The High Court has also not directed the Mamlatdar, Bardez  

to consider the question as to whether he has jurisdiction/powers  

to reopen the proceedings. Such being the position, it was not open  

for the High Court in a subsequent writ petition to pass any order  

enlarging the order and direction issued by the High Court in the  

earlier Writ Petition No.422/2008. At best, the High Court could  

have  asked  the  Village  Panchayat,  Calagute  to  issue  completion  

certificate,  if  the  same  had  not  been  issued  pursuant  to  the  

direction of the High Court dated 4th May, 2009 in Writ Petition  

No.422/2008.  It  is  only  after  issuance  of  the  completion  

certificate,  the  respondent  could  have  decided  whether  she  is  

satisfied with such completion certificate or not. The respondent  

having accepted and given undertaking to withdraw the application  

before the Mamlatdar Court there was no question of remitting the  

matter to the Mamlatdar.

12. For the reason aforesaid, we set aside the judgment and order  

dated 18th November, 2013 with liberty to respondent to move before  

the Court of competent jurisdiction, if completion certificate has  

not been issued by the Village Panchayat, Calagute in terms of the  

order passed in Writ Petition No.422/2008 or if the respondent did  

not satisfy with such completion certificate.

13. The  appeal  is  allowed  with  the  aforesaid  observations.  No  

costs.

…………………………………………J. (SUDHANSU JYOTI MUKHOPADHAYA)

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…………………………………………J.                                              (R.K. AGRAWAL) NEW DELHI, JULY 2, 2014.

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