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Section 4 of the Mamlatdar’s Court Act – & Civil Suit – blocking of traditional easementary access – alleged that on compromise alternative access was given – since it can not be ascertained in writ petition, the High court gave liberty to approach the Mamlatdar for ascertain of alternative access and for completion certificate – it was misunderstood as if the High court remanded to reopen the lis agreed to be withdrawn -Apex court held that High court not given any directions to reopen the lis and gave direction to give completion certificate and we set aside the judgment and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.= ANTONETTO JOHN D’SOUZA @ JOHNNY D’SOUZA … APPELLANT VERUS MRS. ALDILA BRAGANZA … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41728

Section  4  of  the  Mamlatdar’s  Court  Act – & Civil Suit – blocking of traditional easementary access –  alleged that on compromise alternative access was given – since it can not be ascertained in writ petition, the High court gave liberty to approach the Mamlatdar for ascertain of alternative access  and for  completion certificate – it was misunderstood as if the High court remanded to reopen the lis agreed to be withdrawn -Apex court held that High court not given any directions to reopen the lis and gave direction to give completion certificate and we set aside the judgment 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.=

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.  which was dismissed for default and later restored =

The appellant filed a Revision Application before  the  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. =

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 from Order No.59/2008 is allowed to be withdrawn.”=

filed a re open petition before the Mamlatdar – was dismissed and revision was also dismissed – writ filed –

After  hearing  the

parties by the impugned judgment, the High Court  while  setting  aside  the

order passed by the  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.”

After  hearing  the

parties by the impugned judgment, the High Court  while  setting  aside  the

order passed by the  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.”

 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.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41728- for full text – LAW FOR ALL

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