ANTONETTO JOHN D' SOUZA @ JOHNNY D' SOUZAversusMRS. ALDILA BRAGANZA

                         [2014] 8 S.C.R. 88


A     ANTONETTO JOHN D' SOUZA @ JOHNNY D' SOUZA
                                  v.
                     MRS. ALDILA BRAGANZA
                   (Civil Appeal No.4995 of 2014)
                           JULY 02, 2014
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                    R.K. AGRAWAL, JJ.]

         High Court - Writ jurisdiction - Dispute regarding
C · easementary rights - In view of grant of alternate access, High
    Court by order dated 4.5.2009 allowed the claimant to withdraw
    her case - Application of the claimant seeking withdrawal of
    order dated 4.5.2009 alleging that there was
    misrepresentation as regards grant of alternate access -
D Since there was disputed questions of fact, the High Court
    disposed of the application, giving liberty to claimant to
    approach the court of Mamlatdar - Application before
    Mamlatdar was dismissed and revision against the order of
    Mamlatdar a/so dismissed - Writ petition - High Court directed
E the Mamlatdar to re-open the case, if he had jurisdiction to
    do so - On appeal, held: High Court, in exercise of its writ
    jurisdiction was not right in remitting the matter to Mamlatdar
    directing him to re-open the proceedings - Easementary
     Rights.
F       The respondent filed an application u/s. 4 of the
    Mamlatdar's Court Act, before the Mamlatdar, alleging
    blocking of her traditional. easementary access,
    obstructed by the appellant. The application was
    dismissed in default. When the matter was taken in
G   Revision, the Court directed the Mamlatdar to remove the
    obstacles. Thereagainst, the appellant filed writ petition.

         The respondent had also filed a suit against the

H                                 88
  ANTONETIO JOHN D' SOUZA@ JOHNNY D' SOUZA v.          89
               ALDILA BRAGANZA

appellant for mandatory injunction, the same having been     A
dismissed, was taken in appeal to High Court. High Court
by order dated 4.5.2009 observed that the Panchayat had
granted a satisfactory alternate access to the
respondent, and in view thereof, disposed of the writ
petition and allowed withdrawal of the appeal.               8

     The respondent filed an application before High
Court seeking withdrawal of its order dated 4.5.2009 as
there was misrepresentation as regards grant of suitable
alternate access. On the direction .of the High Court site   C
inspection was conducted and the inspection report
revealed that the alternate access did not have a
minimum uniform width of 1.5 meters. The High Court by
order dated 10.5.2012, disposed of the application
without going into the disputed facts regarding the
alternate access and gave liberty to the respondent to       D
approach the Mamlatdar. Pursuant thereto, the
respondent filed application before Mamlatdar and the
same was dismissed. Revision petition against the same
was also dismissed. Therefore, the respondent filed writ
petition, wherein High Court passed the impugned order       E
remanding the matter to Mamlatdar to decide whether he
had jurisdiction/powers to re-open the proceedings in
question and to pass appropriate orders. Hence the
present appeal.
                                                             F
    Allowing the appeal, the Court

    HELD: The High Court considering the fact that
disputed question of fact is involved in the case by order
dated 10th May, 2012 observed that it was not for the High
Court to re-consider the matter in the writ petition which   G
has already been disposed of. 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     H
    90      SUPREME COURT REPORTS               [4014J_ 8 S.C.R.

A the same after hearing the concerned parties in
  accordance with law. No direction was issued by the
  High Court to reopen the matter. The High Court has also
  not directed the Mamlatdar, to consider the question as
  to whether he has jurisdiction/powers to reopen the
B 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. At best, the High
  Court could have asked the Village Panchayat, to issue
C completion certificate, if the same had not been issued
  pursuant to the direction of the High Court dated 4th May,
  2009. 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
D to withdraw the application before the Mamlatdar Court
  there was no question of remitting the matter to the
  Mamlatdar. [Para s 10 and 11] [96-A-G]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E   4995 of 2014.

        From the Judgment and Order dated 18.11.2013 in WP
    No. 622 of 2013 of the High Court of Bombay at Panaji.

         Ranjit Kumar, Binu Tamta for the Appellant.
F
         Respondent-In-Person.

         The Judgment of the Court was delilvered by

      SUDHAN.5U JYOTI MUKHOPADHAYA, J. 1. This
G 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
H
  ANTONETIO JOHN D' SOUZA@ JOHNNY D' SOUZA v.                   91
 ALDILABRAGANZA[SUDHANSU JYOTI MUKHOPADHAYA, J.]

 September, 2013 passed by the Additional Collector-II, North          A
 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:                 B

        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     C
  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 Collector against the order of restoration. In the said
  Revision Application an ex parte order was passed by the             D
  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            E
  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            F
 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        G
 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.5912008 as the            H
    92       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A        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
         a/so given no objetion to the grant of access to the
         appellants as well as the other members. Consequently,
B        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. 591
         2008 concedes that the /is in the Mam/atdar Court's no
         longer remains. Mr. Usgaonkar on behalf of the
c        appellants undertakes to withdraw the application in the
         Mam/atdar'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
D
         No.42212008 is disposed bf accordingly and Appeal from
         prder No.5912008 is allowed to be withdrawn."

        4. The respondent, thereafter, filed Miscellaneous Civil
  Appli~ation No.348/2011 in the said writ petition for recall of
E 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 ,
F for respondent No.1 (appeffant 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
G 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
H width of alternate access provided to the respondent by the
   ANTONETIO JOHN D' SOUZA@ JOHNNY D' SOUZA v.               93
 ALDI LA BRAGANZA [SUDHANSU JYOTI MUKHOPADHAYA, J.]

Village Panchayat of Calangute. The Surveyor attached to the       A
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 s;:iid plan revealed that the said alternate access does not
have a minimum uniform width of 1.5 metres and at some             B
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.3481
2011 came to be disposed of with the following observations:
                                                                   c
    "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 1010512012 along with the report and
    the sketch. On perusal of the sketch it appears that at D
    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 peJition has been disposed of is not found E
    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.
                                                               F
    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 G
    leaned Mamlatdar to get his grievances with regard to the
    alternative access adjudicated.

    7. Without going into the correctn,ess of the contentions
    of the Counsel in respect of the alternative access on the     H
    94        SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A        basis of which the Writ Petition came ot be disposed of
         by this Court, the petitioner is a/ways 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
B        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,
C 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
D 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 2810312013 passed by
E
         the Mamlatdar of Bardez and 2010912013 passed by the
         Additional Collector- II, North Goa, are quashed and set
         aside.

         (b) The matter is remanded to the respondent No.2 to·
F        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
G        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
H
  ANTONETIO JOHN D' SOUZA@ JOHNNY D' SOUZA v.               95
ALDI LA BRAGANZA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    shall proceed to dispose of the said case No.MAM/BAR I        A
    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/       B
    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          c
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
!espondent that at some points the minimum access of 1.5          0
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    E
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      F
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.   G
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
                                                                  H
    96       SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A   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,
    2012 observed that it was not for the High Court to reconsider
    the matter in"the writ petition which has already been di~posed
8
    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. T.herefore, without going
    into the correctness of the contentions of the parties iri respect
C 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 with law. ·

D       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
E writ petition to pass any order enlarging the order and direction
  issued by the High Court in the earlier Writ Petition No.422/
  2008. ~t 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
F 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
G 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
H
  ANTONETIO JOHN D' SOUZA@ JOHNNY D' SOUZA v.               97
ALDILA BRAGANZA [SUDHANSU JYOTI MUKHOPADHAYA, J.]

completion certificate has not been issued by the Village         A
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.    8
No costs.
Kalpana K. Tripathy                             Appeal allowed.