Case No.66/2017,453 Under Section 40 of , Daman & Diu land Revenue , Code, 1968

IN THE COURT OF DEPUTY COLLECTOR, DIU U.T. ADMINISTRATION OF DAMAN & DIU, COLLECTORATE, DIU. The Mamlatdar, Diu...... Appellant

V/S

Shri Premji Gila R/o Kevdi, Zolawadi, Diu Respondent

ORDER

1. WHEREAS, government land bearing Survey No. 105/0 admeasuring 16560 sq.mts situated near 66 K.V., Kevdi, Diu had been assigned for Establishment of Model Degree College in Diu District vide Order No. 64-03-2011-LND/2494 dated 18/ 10/2011 and further proposal of Additional Govt. land bearing Survey No. 115/ 1 admeasuring 6625 sq.mts. for establishment of new Arts and Commerce College had also been assigned to start construction;

2. AND WHEREAS , in the meantime, all the following parties filed a Regular Civil Suit in the Hon. Court of Civil Judge, Senior Division at Diu:- 1 Shri Bawa Karsan V/s RCS No. 01/2013 The Union of & Others 2 Sint. Jamnaben Mavji Vaza V/s RCS No. 02/2013 The Union of India & Others 3 Govind Bawa V/s RCS No. 03/2013 The Union of India & Others 4 Sint. Valiben Mavji Vaza V/s RCS No. 04/2013 The Union of India & Others 5 Shri Amrutlal Karsan Bamania V/s RCS No. 05/2013 The Union of India & Others 6 Shri Amrutlal Karsan Bamania V/s RCS No. 06/2013 The Union of India & Others 7 Shri Premji Gila V/s RCS No. 07/2013 The Union of India & Others 8 1 Shri Vashram Mandan RCS No. 08/2013

Page 1 of 26 V/S The Union of India & Others 9 Smt. Valiben Mandan & Ors. V/s RCS No. 09/2013 The Union of India & Others 10 Shri Karsan Mandan & Ors. V/s RCS No . 10/2013 The Union of India & Others 11 Shri Karsan Mandan & Ors. V/s RCS No . 11/2013 The Union of India & Others 12 Smt. Jamnaben Mavji Vaza & Ors. V/s RCS No. 12/2013 The Union of India & Others 13 Smt. Hemiben Kanti Vaza & Ors. V/s RCS No. 13/2013 The Union of India & Others 14 Shri Lalji Lakhman Bamania V/s RCS No. 14/2013 The Union of India & Others 15 Smt. Panibai Vira Bamania & Ors. V/s RCS No. 15/2013 The Union of India & Others 16 Shri Rama Lakhman Bamania & Ors. V/s RCS No . 16/2013 The Union of India & Others 17 Smt . Nandubai Soma Bamania & Ors. V/s RCS No . 17/2013 The Union of India & Others 18 Smt . Manibai Dita Bamania & Ors. V/s RCS No. 18/2013 The Union of India & Others 99 Shri Nathu Lakhman Bamania & Ors. V/s RCS No. 19/2013 The Union of India & Others 20 Shri Velji Kanji Bamania & Ors. V/s RCS No. 20/2013 The Union of India & Others 12 Shri Devji Karsan Bamania & Ors. V/s RCS No. 21/2013 The Union of India & Others 22 Smt. Jivibai Rama Bamania & Ors. V/s RCS No . 22/2013 The Union of India & Others

3. AND WHEREAS , accordingly, this office received Summons for Settlement of issues dated 19/03/2013 from the Clerk of the Civil Court, Diu in the above cases for temporary injunction under Section 94 and Order 39 Rule 1 and 2 of Section 151 of CPC and claiming the land bearing Survey No. 105/0 and Survey No. 115/1 situated at Kevdi of village Bhucharwada; After due process of law, on 03rd May, 2016, Hon'ble Civil Judge, Senior Division at Diu has passed similar Orders in Regular Civil Suits filed by the above parties as follows: "This suit coming on this 3rd May, 2016 before Shri Tushar T.

Page 2 of 26 i Aglawe, Civil Judge (Senior Division), Diu for final order in presence of Ld. Counsel Shri Hetal B. Modasia for plaintiffs and Government Pleader Ld. Counsel Shri T.R. Desai for defendants. IT IS ORDERD that -

i. Suit is partly decree. ii. It is hereby declared that plaintiffs are in settled possession of suit lands. iii. Defendants or anybody claiming through them are hereby prohibited from dispossessing plaintiffs of suit lands, without due course of law. iv. Other prayers of plaintiffs are rejected. v. Parties to bear their own costs."

4. AND WHEREAS, being aggrieved, out of 22 parties total 20 parties has filed Regular Civil Appeals before the Hon'ble District Judge at Diu under Section 96 of the Code of Civil Procedure, 1908

1 Shri Bawa Karsan V/s R.C.A.No. 10/2016 The Union of India & Others 2 Smt. Jamnaben Mavji Vaza V/s R.C.A.No. 05/2016 The Union of India & Others 3 Smt. Valiben Mavji Vaza V/s R.C.A.No. 03/2016 The Union of India & Others 4 Shri Amrutlal Karsan Bamania V/s R.C.A.No. 11/2016 The Union of India & Others 5 Shri Amrutlal Karsan Bamania V/s R.C.A.No. 17/2016 The Union of India & Others 6 Shri Premji Gila V/s R.C.A.No. 18/2016 The Union of India & Others 7 Shri Vashram Mandan V/s R.C.A.No. 02/2016 The Union of India & Others 8 Smt. Valiben Mandan & Ors. V/s R.C.A.No. 19/2016 The Union of India & Others 9 Shri Karsan Mandan & Ors. V/s R.C.A.No. 06/2016 The Union of India & Others 10 Shri Karsan Mandan & Ors. V/ S R. C.A. No. 07/2016 The Union of India & Others Smt. Jamnaben Mavji Vaza & Ors. 11 R.C.A.No. 20/2016 V s

Page 3 of 26 iiic Unwn 01 uiuia as timers F 12 Smt. Hemiben Kanti Vaza 8s Ors. V/s R.C.A.No. 08/2016 The Union of India & Others 13 Shri Lalji Lakhman Bamania V/s R.C.A.No. 16/2016 The Union of India & Others 14 Smt. Panibai Vira Bamania & Ors. V/s R.C.A.No. 13/2016 The Union of India & Others 15 Shri Rama Lakhman Bamania & Ors. V/s R.C.A.No. 15/2016 The Union of India & Others 16 Smt. Nandubai Soma Bamania & Ors. V/s R.C.A.No. 01/2016 The Union of India & Others 17 Smt. Manibai Dita Bamania & Ors. V/s R.C.A.No. 04/2016 The Union of India & Others 18 Shri Velji Kanji Bamania & Ors. V/s R.C.A.No. 14/2016 The Union of India & Others 19 Shri Devji Karsan Bamania & Ors. V/s R.C.A.M. 12/2016 The Union of India & Others 20 Smt. Jivibai Rama Bamania & Ors. V/s R.C.A.No. 09/2016 LThe Union of India & Others

5. AND WHEREAS , in this regard, this office has received letter dated 30-01-2017 from Shri Thiyukesh R. Desai, Govt. Counsel of Diu forwarding therewith Order dated 01-12-2016 passed by the Hon'ble Principal District Judge, Diu as below :-

"Adv. Hiten Modasia for appellant present, DGP Adv. T.R. Desai for R-1 to 3 present. DGP made statement for an on behalf of respondent UOI that the Government will not evict the appellants without due adopting due process of law. DGP agreed and confirmed the proposition of law as laid down by Hon'ble Supreme Court of India in the case Gurudwara Sahib V/s Gram Panchayat village Sirthala (in Civil Appeal No.8224 of 2013 arising out of S.L.P. (Civil) No.23728 of 2012) the in such proceeding the appeal will be at liberty to take to take defence and plead that they have become owner of the land by way of adverse possession of prescription.

Having regard to the statement made by SPP Adv . Hetal Modasia for the appellants on instructions of appellant made statement that he withdraw the appeal . He requested for this Court to grant leave to the appellants to take defense of adverse possession or

Page 4 of 26 prescription in the proceedings if any initiated by the state as due process of law for their eviction. The wordings of Hon'ble Apex Court and law on that point is clear whereas liberty is inherent. So to avoid any complication or confusion liberty as prayed is granted as appeal is withdrawn it stands disposed of with no order as to cost." 6. AND WHEREAS , as per the Order passed by the Hon'ble Principal Civil Judge, Diu which is transcribed in Para 5 above, this authority started due process of law for the eviction of the above 22 parties under the specific provision of Section 40 of Goa, Land Revenue Code, 1968 to recover the possession of the Govt. land bearing Survey No. 105/0 admeasuring 16560 sq.mts and Survey No. 115/ 1 admeasuring 6625 sq.mts. situated near 66 K.V., Kevdi, Diu in the court of the Dy. Collector, Diu who is also empowered to deal such cases by Notification No. 65-01-2014- LND/Part file/400 dated 06-05-2016;

7. AND WHEREAS , this office has issued Notice to Shri Premji Gila, R/o Kevdi, for personal hearing under Section 40 of Goa, Daman and Diu Land Revenue Code, 1968;

7A. AND WHEREAS , the area under the possession of the respondent as per the Para no.2 of the Judgment dated 29/04/2016 by Civil Judge (Sr.Dn.),Diu admeasuring 294 sq.mts. as well as admeasuring 360 sq.mts. which are part of Survey No. 105/0 and admeasuring 261 sq.mts. as well as admeasuring 192

sq.mts. which is part of Survey No. 115/1 are the suit land in

question in the current Suit;

8. AND WHEREAS, the Opponent/Respondent, submitted his/her preliminary objection as under:- 1) That this Court/authority i.e. Deputy Collector, Diu, has no jurisdiction or authority or power to initiate this proceeding. Therefore the Show Cause Notice itself is bad under the law, null and void and illegal. 2) That the Opponent/ Respondent admittedly are not illegal trespassers/occupants, and this issue on fact is already decided by the Hon'ble Civil Court in the Civil suit filed by the Opponent/Respondent, and the finding on this issue was not challenged by the Government in the appeal before the Hon'ble District Court, Diu. Therefore, the Collector has no jurisdiction to initiate any proceeding against the Opponent/ Respondent under S 40 of Goa, Daman and Diu Land Revenue Code, which is a summary proceeding, whereas the dispute between the parties hereto is of such a nature that it cannot be decided by a Summary proceeding, but requires a normal remedy i.e. by leading evidence. Page 5 of 26 3) That in the appeal before the Hon'ble District Judge, Diu, the District

Government Pleader had made a statement for and on behalf of the

Respondent UOI that "the Government will not evict the appellants without adopting due process of law". The DGP further agreed and confirmed the proposition of law that in such proceeding the appellant will be at liberty to take defence and plead that they have become owner of the land by way of adverse possession or prescription. 4) This statement of the DGP is binding on the Government and now by initiating a summary proceeding under 5.40, the Government cannot take away the legal right available to the Opponent/ Respondent herein to plead that they have become owner of the land by way of adverse possession or prescription. 5) And the Hon'ble District Judge, Diu has accordingly allowed withdrawing the appeal with leave to take defence of adverse possession or prescription in the proceedings if any initiated by the State as due process of law for their eviction. 6) Therefore, the Show Cause Notice under S.40 issued by you i.e. Deputy Collector, Diu is without authority, null and void and illegal and requires to be set aside. 7) That the Opponent/ Respondent reserves their right to file their detailed Written Statement/ Objections to the proceedings in due course, after the materials, appeal memo and documents on which the proceeding is initiated, are supplied to them. 8) That since the jurisdiction and maintainability of the proceeding it is challenged herein, a preliminary issue regarding the same requires be framing first and deciding as mandated under the law, in the interest of justice.

9. AND WHEREAS , the Opponent/Respondent, has also submitted an Affidavit in Evidence from Mr. Jentilal Premji, married, age: about 51 years, Occ.: Mason, Son of Mr. Premji Bamania, Resident of H.No.157, Ubhi Sheri, Malala, Zolawadi, Diu; take oath in the name of God and declare as under:

1) That I know the Opponent/Respondents. 2) That I have seen the entire properties bearing Survey Nos.105/0 and 115 / 1. That these lands bearing Survey Nos . 105/0 and 115/1 are situated at Kevdi- Vanakbara Main Road , Kevdi Diu and I pass by the said road daily and hence I see the suit lands everyday and I am personally acquainted with the facts about possession of these lands.

^^ Page 6 of 26 3) That these lands bearing Survey No.105/0 and Survey No.115/ 1

are in possession of different farmers of village Kevdi since before

my birth and that I have personally seen these farmers of village

Kevdi doing cultivation and taking crops and vegetables from the said lands since my childhood. 4) That the Opponent/ Respondents are in exclusive possession of suit land and Applicant/ Government was never in possession of the suit land. 5) the Opponent/ Respondents are cultivating the suit land and taking crops and vegetables and all benefits therefrom, and since my childhood I have seen them and their ancestors in continuous, uninterrupted, open and peaceful possession of the suit land and cultivating the same and taking crops and fruits and all benefits therefrom, as owners thereof, to the knowledge of everybody including whole of Diu Town and the Government.

Whatever stated hereinabove in Para 1 to 5 is true and correct and it is as per my personal knowledge.

10. AND WHEREAS , the Opponent/Respondent, has also Smt. Hiruben Rama, Wife of Shri Rama Karsan Bamania, age: about 67 years, Occ.: Household, Daughter of Mr. Bhagwan Rama Bariya, Resident of Kevdi, Zolawadi, Diu; take oath in the name of God and declare as under:

1) That I am born at village Dangarwadi of Diu District, which is adjoining to Kevdi Village at the walking distance of about one kilometer.

2) That I am married to Rama Karsan Bamania about 47 years ago and since my marriage, I am residing at Kevdi.

3) That I have seen the entire property which is bearing Survey No.105 / 0 and 115/1.

4) That these lands bearing Survey No.105/0 and Survey No.115/ 1 are in possession of different farmers of village Kevdi and I have seen them in possession since more than 47 years (i.e. since before I got married and started residing at Kevdi) and that I have seen these farmers of village Kevdi doing cultivation and taking crops and vegetables from the said lands since my marriage till date. That these lands are situated on Vanakbara-Diu main road and hence I have to pass by these lands at least once in two days

Page 7 of 26 to visit the market place or Diu town for buying vegetables, household items, etc.

5) That the Opponent/ Respondents are in exclusive possession of suit land and Applicant/ Government was never in possession of the suit land.

6) That the Opponent/ Respondents are cultivating the suit land and

taking crops and vegetables and all benefits therefore, and since my childhood I have seen them and their ancestors in continuous, uninterrupted, open and peaceful possession of the suit land and cultivating the same and taking crops and fruits and all benefits therefrom, as owners thereof, to the knowledge of everybody including whole of Diu Town and the Government.

Whatever stated hereinabove in Para 1 to 5 is true and correct and it is as per my personal knowledge.

11. AND WHEREAS , the Opponent/Respondent, has also submitted an Affidavit in Evidence from Shri Quessou Bica, Son of Shri Bica Lala, age: about 72 years, Occ: Farmer, Resident of Malala, Zolawadi, Diu; take oath in the name of God and declare as under:

1) That I am residing at Malala since my birth. 2) That I know the Opponent/Respondent, who are residents of village Kevdi. 3) That I have personally seen the lands bearing Survey No.105/0 and Survey No.115/ 1 situated at village Kevdi. That I am seeing the said lands since my childhood and I say that the said lands have been possessed and cultivated by the farmers of Kevdi since before liberation of Diu from Portuguese regime and they are still in possession of these lands and are using the lands as owners to the knowledge of everybody. 4) That the Opponent/ Respondents are in exclusive possession of suit land and Applicant/ Government was never in possession of the suit land. 5) That the Opponent/ Respondents are cultivating the suit land and taking crops and vegetables and all benefits there from, and since my childhood I have seen them and their ancestors in continuous, uninterrupted, open and peaceful possession of the suit land and cultivating the same and taking crops and fruits and all benefits there from, as owners thereof, to the knowledge of everybody including whole of Diu Town and the Government.

Page 8 of 26 Whatever stated hereinabove in Para 1 to 5 is true and correct and it is as per my personal knowledge.

12. AND WHEREAS , the Opponent/Respondent, has also submitted an Affidavit in Evidence from Gila Lakhman Bamania, age: 49 years, Son of Shri Bawa Karsan Bamania, Resident of Kevdi, Bucharwada, Diu, state on solemn affirmation as under:-

1) That I was served with Notice dated: 11/04/2017 for hearing under S 40 of the Code. I say that this Notice is vague, and without any details, and therefore the entire proceeding stands vitiated on this count alone. That no details whatsoever are given in the said Notice pertaining to which land the same is issued. However, reserving the right to challenge the Notice itself as being vague, and assuming that the same is issued for lands bearing S.No.105/0 and 115/1 situated at Kevdi, Diu, I have filed my Written Statement / Reply to Notice. 2) That on receipt of commencement of present proceeding, I had requested the Applicant of this case, to supply the documents and materials on the strength of which the present case is filed. In response thereof, I am supplied with the copy of Appeal Memo only which was filed by myself before the Hon'ble District Court, Diu. 3) On verification of the present case file by my Advocate, it is seen that the Applicant has relied upon and submitted documents totaling more than 200 pages, but except copy of above referred Appeal Memo (5 pages), no other documents are supplied to me, inspite of the oral and written request. 4) That unless I have the information about the materials on which this proceeding is initiated, it is not possible for me to properly defend my case. 5) That inspite of the written request by way of application dated: 17/05/2017 to give sufficient time of atleast 15 days to file the Written Statement after supplying all the documents/ materials on record of the case file, you i.e. the Deputy Collector, Diu has rejected the application/ request and you are inclined to decide this matter in undue haste and in fragrant violation of law of natural justice and you have fixed this matter in a very short period on 22/05/2017 only, and you have orally stated that you are not going to give any time or opportunity to defend to the Opponent/ Respondent and you have already decided and declared the Opponent/ Respondent as illegal encroachers and thus this entire proceeding stands vitiated.

Page 9 of 26 6) I say that you have a bias against me and this predetermined proceeding initiated against me is illegal and unjust and against naturel justice. This amounts to denial of justice. 7) I say that this Court/authority i.e. Deputy Collector, Diu, has no jurisdiction or authority or power to initiate this proceeding. Therefore the Notice itself is bad under the law, null and void and illegal. 8) That I rely upon the averments of plaint of the Regular Civil Suit No.02/2013 filed before the Hon'ble Court of the Civil Judge, Senior Division, Diu (hereinafter referred to as "the civil suit" for brevity), and I say that the averments of the plaint of the Civil Suit are true and correct. The averments made in the plaint of the civil suit may be considered while hearing and deciding this proceeding. 9) That admittedly I am in settled possession of the land in question since Portuguese Regime as held by the Civil Judge in the civil suit. This issue has attained a finality and binding upon the parties to this proceeding. Also the fact that I and my ancestors/predecessor in title were the cultivating tenants of Banya Landlord Ramchand Ghela is duly proved in the civil suit, and this fact is also not challenged by any party and hence this issue on fact has also attained finality and is binding to the parties to this proceeding. 10) Thus admittedly, I am in settled possession of the land since Portuguese Regime, since prior to coming into force the provision of Land Revenue Code and hence the provision of S 40 of the Code is not applicable to the facts of the present case, and that no encroachment is made after the coming into force the provisions of the Code, and hence this proceeding is bad under the law and not maintainable. 11) That the finding on other issues by the civil court in civil suit were assailed by me in appeal before the Hon'ble District Judge, Diu. 12) That in that appeal before the Hon'ble District Judge, Diu, the District Government Pleader had made a statement for and on behalf of the Respondent U.O.I. that "the Government will not evict the appellants without adopting due process of law". The DGP further agreed and confirmed the proposition of law that in such proceeding the appellant will be at liberty to take defence and plead that they have become owner of the land by way of adverse possession or prescription.

Page 10 of 26 13) The Hon'ble District Judge, Diu has accordingly allowed to withdraw the appeal with leave to take defence of adverse possession or prescription in the proceedings if any initiated by the State as due process of law for their eviction.

14) That since 20/03/1971, I and my predecessors no more remained a

cultivating tenant of the banya landlord Shri Ramchande Guela or of

the Government or Panchayat, but we continued to hold the suit land and are in possession of the suit land and are using, occupying and possessing the suit land and cultivating the same and taking crops and continued in exclusive possession and asserted the ownership over the suit land openly, to the knowledge of the everybody in whole of including the Govt. offices and Panchayat, and without any objection or disturbance from anyone of them and we continued in exclusive undisturbed, peaceful and continuous and open and hostile possession as of right as an owner from 20/03/ 1971 till date, i.e. For more than 30 years period in possession adverse to the title of the Panchayat or the Government and thus our title has ripen into full ownership and we have become the owner of the suit land by way of adverse possession and/or by way of law of prescription under the Portuguese Civil Code. That I am not in permissive possession of the land against the Government. That the Government is having knowledge of the factum of our possession atleast since the original landlord had submitted the statement showing names of Makati (i.e. persons having possession and cultivating the land) on dated: 15/01/1972 to the then Assistant Civil Administrator (Mamlatdar), Diu. These records are produced and brought on record in the civil suit by the Mamlatdar, Diu and the documents are duly proved, exhibited and read in evidence in the civil suit. 15) That I rely upon the plaint of the civil court in support of my plea of having acquired ownership by way of law of adverse possession and/or by way of law of prescription under the Portuguese Civil Code, as well as the oral evidences of the Plaintiffs and the documentary evidence in the said civil suit. 16) In addition to the above, I want to examine the following witnesses: (1) The Mamlatdar, Diu to produce certified copies of the following documents:

i. Notice of the Civil Administrator No.CAD / LND/ 18 / 71/4584 of the year 1971

^^^ ^} Page 11 of 26 ii. Receipt Dt.15/01/ 1972 issued by Mamlatdar / Assistant Civil Administrator, Diu as having received from Ramchand Ghela documents in connection to aforesaid Notice. iii. Letter on behalf of late Shri Ramchand Ghela dt. 15/01/1972 addressed to Assistant Civil Administrator, Diu, in response to aforesaid Notice. iv. Certificate issued by Civil Registrar cum Sub-Registrar on 07/01/1972 regarding properties in favour of Ramchand Ghela. v. Statement showing details viz. names of Makati and account dt.15/01 / 1972. (2) Shri Quessou Bica, (3) Shri Jentilal Premji, and (4) Smt Hiruben Rama, to prove fact of possession and nature of possession. 17) That admittedly I have become absolute owner and in exclusive possession of suit land, this proceeding under SAO of the Land Revenue Code is premature, illegal and not maintainable. 18) That the statement of the DGP made in Appeal is binding on the Government and now by initiating a summary proceeding under S.40 of the Code, the Government cannot take away the legal right available to us to plead that we have become owner of the land by way of adverse possession or prescription. 19) More-so, the defense of adverse possession or prescription requires detailed pleading and detailed evidence which is not permissible in a proceeding of a summary nature hence the initiation of proceeding under 40 of the Code which is of a summary nature cannot be termed as due process of law and this action amounts to contempt of court (contempt of the order of the Hon'ble District Judge, Diu passed in the Appeal against the civil suit) as by this action you are illegally taking away our right to take defence of acquiring ownership of the suit land by adverse possession and/or prescription. 20) That we have become the owner of the said land by law of adverse possession and/or by law of prescription and therefore the Government has no right to initiate any proceeding under S 40 of the Code or under any other law against me in respect of the said lands. 21) That the proceeding is also not maintainable for want of necessary parties. Notices to all the parties to the civil suit are not served nor joined in the proceedings and hence the same is not maintainable.

Page 12 of 26 22) I say that, for the facts and reasons as stated above, the Notice under S 40 of the Code issued by you i.e. Deputy Collector, Diu and the proceeding under 5.40 of the Code is without authority, null and void and illegal and the same requires to be set aside, dismissed, revoked or stopped, in the interest of justice. Whatever stated hereinabove in Para 1 to 22 is as per my personal knowledge and it has been read over to me in and it is true and correct and as per my say.

13. AND WHEREAS , the Opponent/Respondent, herein submits his/her Written Statement / Reply to Notice under S.40 of Goa, Daman and Diu Land Revenue Code (hereinafter referred to as the Code" for brevity), as under:- 1) That the Notice dated: 11/04/2017 for hearing under S.40 of the Code is vague, and without any details, and therefore the entire proceeding stands vitiated on this count alone. That no details whatsoever are given in the said Notice pertaining to which land the same is issued. However, reserving the right to challenge the Notice itself as being vague, and assuming that the same is issued for lands bearing S.No.105/0 and 115/1 situated at Kevdi, Diu, the following points and defense are raised. 2) That on receipt of commencement of present proceeding, the Opponent/ Respondent requested the Applicant of this case, to supply him the documents on the strength of which the present case is filed. In response thereof, the Opponent/ Respondent is supplied with the copy of Appeal Memo which was filed by Respondent himself before Hon'ble District Court, Diu. (5) 1) That unless the Opponent/ Respondent knows on what materials you have initiated this proceedings and what are the material relied upon by you, it is not possible for him/her to properly defend his/her case. 2) That inspite of the written requests by way of application dated: 17/05/2017 to give sufficient time of atleast 15 days to file the Written Statement after supplying all the documents/ materials on record of the case file, you have rejected the application/ request and you are inclined to decide this matter in undue haste and in fragrant violation of law of natural justice and you have fixed this matter in a very short period on 22/05/2017 only, and you have orally stated that you are not going to give any time or opportunity to defend to the Opponent/ Respondent and you have already decided and k Page 13 of 26 -S >S declared the Opponent/ Respondent as illegal encroachers, and thus, with protest, the Opponent/ Respondent submits his/her Written Statement as under. 3) Thus this is a clear case of bias against the Opponent/ Respondent and this predetermined proceeding is initiated against the Opponent/ Respondent which is illegal and unjust and against natural justice. 4) That this Court/authority i.e. Deputy Collector, Diu, has no jurisdiction or authority or power to initiate this proceeding. Therefore the Notice itself is bad under the law, null and void and illegal. 5) That the Opponent/ Respondent relies upon the averments of plaint of the Regular Civil Suit No.02/2013 filed before the Hon'ble Court of the Civil Judge, Senior Division, Diu (hereinafter referred to as "the civil suit" for brevity), and requests to consider the averments made in the plaint of the civil suit while hearing

and deciding this proceeding. 6) That admittedly the Opponent/ Respondent are in settled possession of the land in question since Portuguese Regime as held by the Civil Judge in the civil suit. This issue has attained finality and binding upon the parties to this proceeding. Also the fact that the Opponent/ Respondent and his/her predecessor in title were the cultivating tenants of Banya Landlord Ramchand Ghela is duly proved in the civil suit, and this fact is also not challenged by any party and hence this issue on fact has also attained finality and is binding to the parties to this proceeding. 7) Thus admittedly, the Opponent/ Respondent are in settled possession of the land since Portuguese Regime, since prior to coming into force the provision of Land Revenue Code and hence the provision of S 40 of the Code is not applicable to the facts of the present case, and that no encroachment is made after the coming intoforce the provisions of LRC, and hence this proceeding is bad under the law and not maintainable. 8) That the finding on other issues by the civil court in civil suit were assailed by the Opponent/ Respondent in appeal before the Hon'ble District Judge, Diu. 9) That in that appeal before the Hon'ble District Judge, DIU, the District Government Pleader had made a statement for and on behalf of the Respondent UOI that "the Government will not evict the appellants without adopting due process of law". The DGP further agreed and confirmed the proposition of law that in such

Page 14 of 26

\1 proceeding the appellant will be at liberty to take defence and plead that they have become owner of the land by way of adverse possession or prescription. 10) And the Hon'ble District Judge, Diu has accordingly allowed to withdraw the appeal with leave to take defence of adverse possession or prescription in the proceedings if any initiated by the State as due process of law for their eviction.

11) That since 20/03/1971, the Opponent/ Respondent and his/her

predecessors no more remained a cultivating tenant of the banya landlord Shri Ramchande Guela or of the Government or Panchayat, but they continued to hold the suit land and are in possession of the suit land and are using, occupying and possessing the suit land and cultivating the same and taking crops and continued in exclusive possession and asserted the ownership over the suit land openly, to the knowledge of the everybody in whole of Diu island including the Govt. offices and

Panchayat, and without any objection or disturbance from anyone of them and the Opponent/ Respondent and their predecessors continued in exclusive undisturbed, peaceful and continuous and open and hostile possession as of right as an owner from 20/03/1971 till date, i.e. For more than 30 years period in possession adverse to the title of the Panchayat or the Government and thus the title of the Opponent/ Respondent has ripen into full ownership and he/she has become the owner of the suit land by way of adverse possession and/or by way of law of prescription under the Portuguese Civil Code. That the Opponent/ Respondent is not in permissive possession of the land against the Government. That the Government is having knowledge of the factum of possession of the Opponent/ Respondent atleast since the original landlord had submitted the statement showing names of Makati (i.e. persons having possession and cultivating the land) on dated: 15/01/1972 to the then Assistant Civil Administrator (Mamlatdar), Diu. These records are produced and brought on record in the civil suit by the Mamlatdar, Diu and the documents are duly proved, exhibited and read in evidence in the civil suit. 12) That the Opponent/ Respondent relies upon the plaint of the civil court in support of their plea of having acquired ownership by way of law of adverse possession and/or by way of law of prescription under the Portuguese Civil Code as well as the oral evidences of

Page 15 of 26 the Plaintiffs witnesses and the documentary evidence in the said civil suit. 13) In addition to the above, I want to examine the following witnesses: (1) The Mamlatdar, Diu to produce certified copies of the following

documents: i. Notice of the Civil Administrator No.CAD/LND/ 18/71/4584 of the year 1971 ii. Receipt Dt.15/01/1972 issued by Mamlatdar / Assistant Civil Administrator, Diu as having received from Ramchand Ghela documents in connection to aforesaid Notice. iii. Letter on behalf of late Shri Ramchand Ghela dt. 15/01/ 1972 addressed to Assistant Civil Administrator, Diu, in response to aforesaid Notice. iv. Certificate issued by Civil Registrar cum Sub-Registrar on 07/01/1972 regarding properties in favour of Ramchand Ghela. v. Statement showing details viz. names of Makati and account dt.15/01/1972. (1) Shri Quessou Bica, (2) Shri Jentilal Premji, and (3) Smt. Hiruben Rama, to prove fact of possession and nature of possession. 14) That admittedly the Opponent/ Respondent has become absolute owner and in exclusive possession of suit land, this proceeding under S.40 of the Land Revenue Code is premature, illegal and

not maintainable. 15) That the statement of the DGP made in Appeal is binding on the Government and now by initiating a summary proceeding under 5.40 of the Code, the Government cannot take away the legal right available to the Opponent/ Respondent herein to plead that they have become owner of the land by way of adverse possession or

prescription. 16) More-so, the defense of adverse possession or prescription requires detailed pleading and detailed evidence which is not permissible in a proceeding of a summary nature hence the initiation of proceeding under S.40 of the Code which is of a summary nature cannot be termed as due process of law and this action amounts to contempt of court (contempt of the order of the Hon'ble District Judge, Diu passed in the Appeal against the civil suit) as by this action you are illegally taking away the right of the

C ^{ Page 16 of 26 Opponent/ Respondent to take their defence of acquiring ownership by adverse possession and/or prescription. 17) That the Opponent/ Respondent have become the owner of the said land by law of adverse possession and/or by law of prescription and therefore the Government has no right to initiate

any proceeding under S 40 of the Code or under any other law

against the Opponent/ Respondent in respect of the said lands.

18) That the proceeding is also not maintainable for want of necessary

parties. Notices to all the parties to the civil suit are not served nor joined in the proceedings and hence the same is not maintainable. 19) Therefore, the Notice under S 40 of the Code issued by you i.e. Deputy Collector, Diu and the proceeding under S 40 of the Code is without authority, null and void and illegal and the same requires to be set aside, dismissed, revoked or stopped, in the interest of justice.

14. AND WHEREAS , hearing in the Court of Deputy Collector, Diu was fixed on 25/04/2017 at 16:00 hours, on 08/05/2017 at 16:00 hours, on 16/05/2017 at 16:00 hours, on 17/05/2017 at 16:00 hours, and on 22/05/2017 at 16:00 hours;

15. AND WHEREAS, the following points raised by the respondent, through his power of attorney holder, in his written statement dated 22.05.2017 need to be considered while deciding this case:

1. With respect to paragraph number 1, the submission that the notice dated 11.04.2017 is vague may be upheld for once. However, the respondent was told about the details of the land and the reasons of initiating this case during the hearing on 25.04.2017 and the entire file was available to the respondent during the hearing. Moreover, as recorded in the roznama on 25.04.2017, the respondent's lawyer had himself said that he would apply for the copy of the relevant documents which he wanted from the file. He has failed to do so and thus the submission of the respondent in paragraph 1 is rejected. II. With respect to the statement in paragraph 2, it is noted that the proceeding has indeed been initiated on the strength of the appeal memo of the respondent in the District court, Diu. III. With respect to the statement in paragraph 3, it was stated on 25.04.2017 by the respondent himself that he shall apply for copies of the relevant documents, but he apparently did not

Page 17 of 26 v3 K 1' ,r1 apply for any documents. Thus, it is the respondent's failure and thus this reason is also rejected. Moreover, it is pertinent to state here that indeed no other document is being relied upon except the appeal memo of the respondent in the District Court and the judgement of the Civil Judge, Diu in the case filed by the

respondent against the government with respect to the suit land.

All this material is already available to the respondent.

IV. With respect to the statement in paragraph 4, the respondent

was made aware of the materials relied upon by this authority on the first day of the hearing itself i.e. 25.04.2017 as recorded in the roznama. Be that as it may, it is even more pertinent to see that the respondent has submitted only in the fifth hearing that he has not been provided the material, despite his own statement on 25.04.2017 that he shall apply and take all relevant documents! The respondent had enough opportunity to do the same on earlier hearings, but the respondent did not. It shows that this plea is taken just to defeat the aim of justice. Moreover, as stated in the foregoing paragraph, it is pertinent to state here that indeed no other document is being relied upon except the appeal memo of the respondent in the District Court and the judgment of the Civil Judge, Senior Division, Diu in the case filed by the respondent against the government with respect to the suit land. All this material is already available to the respondent. In view of all these facts, this plea of the respondent stands rejected. V. With respect to the statement in paragraph 5 wherein the respondent has stated that sufficient time has not been given, it is clear that the respondent had much more than 15 days time since the beginning of this proceeding, the first date of hearing of which was 25.04.2017. The statement of the respondent "you have orally stated that you are not going to give any time or opportunity to defend to the Opponent/ Respondent and you have already decided and declared the Opponent/ Respondent as illegal encroachers" is a baseless statement without any element of truth to it. Moreover, Honourable Supreme Court of India has unequivocally in Jagpal Singh & Ors vs State Of Punjab & Ors on 28 January, 2011 directed that, "before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/ unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land

Page 18 of 26 and these must be restored to the Gram Sabha/Gram

Panchayat for the common use of villagers of the village.

For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy

eviction of such illegal occupant , after giving him a show

cause notice and a brief hearing (emphasis added). Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession". As is evident from the above judgment, the present authority is following the directions of the Hon'ble Supreme Court in such matters. Thus, adequate time and opportunity has been given to the respondent to defend their case as per the canon laid out by the law and higher judiciary. VI. With respect to the statement in paragraph 6, the statement is totally baseless and without an iota of truth in it. VII. With respect to the statement in paragraph 7, the respondent has raised the question that whether the undersigned is competent to decide this matter? The answer is an unequivocal yes. The land is recorded in the name of the government, and the respondent is an encroacher on the same. Thus, proceeding is as per law and through these proceedings, the due process of law is being followed. VIII. With respect to the statement in paragraph 8, the averments and the judgment in Regular Civil Suit No. 02/2013 (hereinafter referred to as the civil suit) form the basis and the key material in deciding this matter. So, this submission is accepted. IX. With respect to the statement in paragraph 9, the Civil Judge has indeed held that the respondent is in settled possession of the suit land. However, not challenging a fact does not lead to attainment of finality. The respondent has submitted that the issue that the respondents were tenants of Banya landlord Ramchand Ghela has also attained finality on the strength of the order of the Civil Court. This matter will be dealt with in greater detail at a later stage of this order. X. With respect to the statement in paragraph 10, the proceedings under Section 40 of Goa, Daman and Diu Land Revenue Code are maintainable because the land is recorded as government

Page 19 of 26 -'!V A^ and the respondent is in possession of the government land,

which qualifies for action under Section 40 of Goa, Daman and Diu Land Revenue Code, 196 which has been reproduced as follows:

"Section 40: Summary eviction of person unauthorisedly

occupying land vesting in Central Government.-

(1) If in the opinion of the Collector any person is unauthorisedly

occupying or wrongfully in possession of any land-

(a) vesting in the Central Government; or (b) to the use or occupation of which he is not entitled or has

ceased to be entitled by reason of-

(i) any of the provisions of this code, or (ii) the expiry of the period of lease or termination of the lease for breach of any of the conditions annexed to the tenure, or (iii) it being not transferable without the previous permission under sub-section (2) of section 24 or by virtue of any condition lawfully annexed to the tenure under the provision of sections 20, 25 or 32, it shall be lawful for the Collector to summarily evict such person in the manner provided in sub-section (2). (2) The Collector shall serve a notice on such person requiring him within such time as may appear reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, the Collector may remove him from such land. (3) A person unauthorisedly occupying or wrongfully in possession of land after he has ceased to be entitled to continue the use, occupation or possession by virtue of any of the reasons specified in sub-section (1), shall also be liable at the discretion of the Collector to pay a penalty not exceeding two times the assessment or rent for the land for the period of such unauthorised use or occupation." XI. With respect to the statement in paragraph 11, the other findings of the Civil Judge stand as on date as the appeal of the respondent against the said order of the Civil Judge was withdrawn by the respondent. XII. With respect to the statement in paragraph 12, it is clear that the due process of law as specified in the Goa, Daman and Diu Land Revenue Code has been followed by conducting these proceedings. The liberty of taking the defense of adverse possession was always open to the respondent, and he has indeed taken such a position in the current suit.

^^ ^I Page 20 of 26 XIII. With respect to the statement in paragraph 13, the facts narrated are indeed true.

XIV. With respect to the statement in paragraph 14, the findings of

the Civil Judge in the civil suit should suffice. He has held in

paragraph 30 of the said judgment and decree, "In a claim for

adverse possession animus possidendi i.e. intention to possess is

an important ingredient. Unless the person possessing the land

has a requisite animus, the period for prescription does not commence. In the instant case though the plaintiffs have alleged their possession for more than 30 years, they have not taken any positive steps or efforts to record their name against and with respect to suit land in the revenue records. Therefore, apparently the intention to possess is missing." Moreover, the Hon'ble Supreme Court of India has held in R.Hanumaiah & Anr vs Sec .To Govt.Of Kar .Rev.Dept.& ... on

24 February, 2010 : "17. Mere temporary use or occupation

without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored (emphasis added). As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based

Page 21 of 26 on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government." This landmark judgment is amply clear that the claim of adverse possession against the government of the respondent is not sustainable because of the lack of animus.

Furthermore, the claim that the respondent has been in

continuous possession is also not backed with any evidence except a purported statement of a private person dated 15.01.1972. The Hon'ble Supreme Court in supra has unequivocally stated that such stray entries and documents cannot be basis for claim of adverse possession against the government. At the most, this purported document proves the possession of the respondent on some land on the date the letter was purportedly written, and nothing more. XV. With respect to the statement in paragraph 15, the submission of the respondent are dismissed for reasons mentioned in the foregoing paragraph, and as per the judgment in S. Lingamaiah vs State Of A.P. And Ors . on 9 January, 2004, the question whether on the basis of the averments made in the affidavits and counter-affidavits it can be said that the petitioner had perfected his title to the property by reason of adverse possession? The Court held that "merely on the basis of averments in the affidavit and counter-affidavits, it cannot be said whether or not the petitioner had perfected his title to the property by way of adverse possession." Thus, even this contention cannot be accepted in support of the respondent's case. XVI. With respect to the statement in paragraph 16, the request to examination was turned down because of the following reasons: a. With respect to Mamlatdar, Diu: the respondent wanted to "examine" to produce only certified documents of certain documents. In this regard, it is amply clear that the responsibility to submit the relevant documents is that of the Respondent, and the Mamlatdar cannot be summoned to submit documents by the respondent, especially in the era of Right To Information Act. b. The rest three are respondent's witnesses and their affidavits have been produced by the respondent. However, since these proceedings are summary in nature, their examination request by the respondent would have delayed the ends of justice without adding anything more than what they have stated in their affidavits.

Cn/ Page 22 of 26 XVII. With respect to the statement in paragraph 17, the respondent's argument is not accepted for reasons mentioned in paragraph XIV of this order. XVIII. With respect to the statement in paragraph 18, ample

opportunity has been given to the respondent to prove his claim

of adverse possession and the respondent's claim of adverse possession has been examined in detail and found to be wanting. (see paragraph XIV of this order)

XIX. With respect to the statement in paragraph 19, the proceedings as per Section 40 are good enough to establish the fact of adverse possession. The proceedings are as per the provisions of law and thus the claim of contempt of court is found to be absurd. XX. With respect to the statement in paragraph 20, the claim ample opportunity has been given to the respondent to prove his claim of adverse possession and the respondent's claim of adverse possession has been examined in detail and found to be wanting.

(see paragraph XIV of this order) XXI. With respect to the statement in paragraph 21, it was asked to the respondent during the hearing on 22.05.2017 as to what are the necessary parties, to which he replied that the necessary parties are Union of India and UT Administration of Daman and Diu. However, this is an attempt of the respondent to delay the ends of justice, and nothing more and hence is dismissed. XXII. With respect to the statement in paragraph 22, the repondent's argument is once again rejected and it is held that the proceedings are as per law.

16. AND WHEREAS , Shri Gila Lakhman Bamania, son of Shri Gila Lakhman Bamania, has also submitted an affidavit-in-evidence as the respondent dated 20.05.2017 which is more or less similar to the written statement of the respondent (through his power of attorney holder), and therefore the observations and findings remain the same as in the paragraph number 14 of this order;

17. AND WHEREAS, the three affidavits submitted by the respondent in support of the claim of adverse possession state that the possession is "continuous, uninterrupted, open and peaceful ...... to the knowledge of everybody including whole of Diu Town and the Government"; however, it is obvious that the person can state that a certain point was in the individual's personal knowledge, but it is inexplicable as to how can the person state in an affidavit that it was in the knowledge of the "whole of Diu Town" and more surprisingly, "the Government"; furthermore, as per

fl Page 23 of 26 V ~i^^^ V the judgment in S. Lingamaiah vs State Of A.P . And On . on 9 January, 2004, the question whether on the basis of the averments made in the affidavits and counter-affidavits it can be said that the petitioner had perfected his title to the property by reason of adverse possession? The

Court held that "merely on the basis of averments in the affidavit and counter-affidavits, it cannot be said whether or not the petitioner had perfected his title to the property by way of adverse possession."; and in the absence of any evidence to back up their claim that it was in the knowledge of government, the claim of adverse possession is again found to be devoid of merit;

18. AND WHEREAS, what transpired during the course of hearing on 22.05.2017 is the most important factor proving the hollowness of the claim of adverse possession on government land, and the important aspects are reproduced as under:

1. "The respondent's advocate has further stated upon questioning that the land immediately south of the suit land is confirmed in the name of the respondent. The suit land thus lies between the respondent's land and the road. The respondent's land has been recorded in the name of the respondent as a result of Abolition of Proprietorship of Lands in Diu Act, 1971. The respondent's advocate was asked by the presiding officer how the names of the respondent was entered in the records with respect to the lands to the south of the suit land, but not the suit land? To this, he replied that the suit land was low lying land and filled with water; hence the survey team purportedly did not measure the suit land. II. "At this point of the proceedings the advocate for the respondent said that the presiding officer cannot ask such questions. III. "And he refused to answer any further questions with regards to the same. He further stated, and I quote "How can you ask me such questions?" He even objected to recording of the above statement in his name! IV. "He further states that he has no more documents to submit." V. "Upon being asked to sign the Roaznama, the advocate for the respondent refused. Therefore, witnesses to the entire proceedings, Shri Shakil Kasmani, Reporter, resident of Market, Parsiwada, Diu, and Shri Rajesh Baria, Field Surveyor, Collectorate, Diu have been requested to sign and attest the fact that the above proceedings have been recorded as they happened/transpired, both in letter and spirit."

Page 24 of 26 VI. "Further, the CCTV footage of the entire proceedings is also available and shall be copied to a CD and placed on record."

19. AND WHEREAS , from the perusal of the proceeding before this authority as reproduced in the foregoing paragraph, it is clear that the respondent has refused to answer the questions of this authority which would have led to establishment of the truth in this case, which therefore, in accordance with Section 114 read along with illustration (h) of Indian Evidence Act, 1872, reproduced as under:

Section 114 in The Indian Evidence Act, 1872

114 Court may presume existence of certain facts. -The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume-

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;"

Therefore, the following logical presumptions can be drawn by this authority:

I. The reply that the suit land was low lying and waterlogged implies that the respondent was not in possession of the suit land on the date of the survey carried out at the time of implementation of the Abolition of Proprietorship of Lands in

Diu Act, 1971. II. Moreover, the fact that land south of the suit land was recorded in the name of the respondent means that the respondent was present at the time of the survey on his field south of the suit land, which proves that the respondent has falsely stated in his application before the Civil Judge, Senior Division Diu that the respondent was not present for the survey (as recorded in paragraph number 3 of the judgment of the Civil Judge, Senior Division, Diu). A similar finding has been recorded by the Civil Judge, Senior Division, Diu in paragraph number 29 of the same judgment.

20. AND WHEREAS , keeping the above facts, submissions, reasons and judgments of higher judiciary in view, it is found that the claim of the respondent of adverse possession is not substantiated and hence rejected; J1- Page 25 of 26 21. NOW THEREFORE, keeping the above facts, submissions and reasons in view, I, Dr. Apurva Sharma, DANICS, Deputy Collector, Diu in exercise of the powers conferred to me under section 40 of Goa, Daman and Diu, Land Revenue Code, 1968 do hereby order the eviction of the respondent & removal of the encroachment from Government Land admeasuring 294 sq.mts. as well as admeasuring 360 sq.mts. which are part of Survey No. 105/0 and admeasuring 261 sq.mts. as well as admeasuring 192 sq.mts. which is part of Survey No. 115/1 (as mentioned in Para no. 2 of the Judgment dated 29/04/2016 by Civil Judge (Sr.Dn.), Diu) situated at Kewadi, Bhucharwada , Diu and also order that the cost of removal of the encroachment from the said Government Land and restoration of the Government Land shall be recovered from the respondent in the form of arrears of land revenue, and direct the Mamlatdar, Diu to do the needful immediately.

Given under my hand & seal of this Court on

DR. APURVA SHARMA, DANICS) DY. COLLECTOR, DIU To:- 1. The Mamlatdar, Diu for necessary action. 2. Shri Premji Gila Bamania, R/o Kevdi, for compliance. 21NIC, Diu to upload it on the official website. 4. Guard File. Copy to:

The Collector, Diu for information, please.

(DR. APURVA SHARMA, DANICS) DY. COLLECTOR, DIU

Page 26 of 26