N.A. Britto, J.@mdashAdmit. Challenge in this appeal is to the judgment dated 5/04/2007 in Civil Suit No. 70/2004 filed by the plaintiffs (appellants herein) which has been dismissed.
2. The dispute between the parties is as regards a structure erected by the plaintiffs at a distance of about 10 mts. from the centre of the internal road and at a distance of about 50 to 60 mts. from the Panaji-Margao road and which is admittedly in survey No. 75/1 of Bambolim.
3. It appears that the Government wanted to remove the suit structure along with many other structures situated in the close vicinity and as a result the Deputy Collector/respondent No. 2 had initiated eviction proceedings and as a result several persons concerned with such structure approached this Court in a Writ Petition contending that the action initiated was against the principles of natural justice and, as a result, the Defendants (respondents herein) represented before the Court that necessary notices would be given to the stall owners and pursuant thereto a notice dated 18/11/1994 came to be issued to the plaintiff No. 1 to show cause why the said structure should not be removed. It was alleged that the suit structure was erected within the said area of National Highway No. 17; it was falling along the space between the compound wall of the GMC and the public road and it was also causing traffic hazard and public nuisance. On receipt of the said notice, the plaintiffs filed the suit for declaration that the said notice was null and void and also sought permanent injunction to restrain the defendants from interfering with the plaintiffs'' suit structure.
4. The plaintiffs pleaded that the plaintiff No. 1 being jobless was allowed to set up a pay phone facility under the ''Educated Unemployed Scheme''. The plaintiffs stated that they were under a bona fide impression that the property where the telephone booth/suit structure was erected vesting with the Village Panchayat. The plaintiffs also stated that they had obtained a NOC dated 9/12/1992 from the Village Panchayat. The plaintiffs pleaded that the plaintiffs had spent about Rs. 55,000/- to set up the said structure and thereafter the Telecommunication Department gave permission to them to set up the telephone booth on payment of security deposit of Rs. 9,600/- and another sum of Rs. 26,000/- was also paid. It was the case of the plaintiffs that it was the first booth in the locality which was installed in the year February, 1993 and it was a public utility facility. The plaintiffs stated that they had also obtained NOC from PWD and at that time they were under bona fide impression that the strip of land where the suit structure was situated belonged to the Government. It was the case of the plaintiffs that the Suit structure was situated in the land belonging to the Communicate of Bambolim. The plaintiffs further stated that from the inquiries made with the Communicate of Bambolim they came to know that the strip of land between the old highway and the GMC compound still continued to belong to the Communidade and the area of Survey No. 75/1 of 75,000 sq. mts. out of which 72,400 sq. mts. was acquired by the Government and an area of about 3,575 sq. mts. still belongs to the Communidade of Bambolim. The plaintiffs made an application dated 31/10/1997 to the said Communicate to state whether the suit structure belonged to the Communicate of Bambolim, but it appears that certificate to that effect came to be obtained by the plaintiffs only after the filing of the suit on 4/11/1997 and which has been produced at Exhibit 34. Plaintiffs therefore filed the suit without notice, but seeking its exemption, contending that the defendants may act at any point of time pursuant to the said notice dated 18/11/1994, on the ground that the suit premises are in the land belonging to the Government.
5. The Government (respondents herein) resisted the suit and stated that land on which the suit structure was situated was Government land and the plaintiffs had no legal or equitable right to the property in which the suit premises are situated. The defendants also stated that under the Goa, Daman and Diu Public Premises (Eviction of unauthorised Occupants) Act, 1988 no suit was maintainable challenging any action taken under the Act since the suit was for declaration that the notice issued to the plaintiffs dated 18/11/1994 was null and void. The defendants also stated that the plaintiffs could have installed the booth only if they had title to the property in question. They further stated that the land in question was acquired for the GMC by the Government and the PWD had no right, interest and/or title to the same and as such could not have granted a NOC. The defendants stated that the suit premises were illegally erected on Government land and therefore they could not take shelter on the ground that the suit premises did not obstruct any person or traffic flow or did not create any nuisance. The defendants had also pleaded that by a common order the defendant No. 2 had directed the removal of gaddas erected on Government land and about 31 Persons who were aggrieved by the same had challenged the order in Civil Appeal No. 1/1995 before the District Court and the appeal was dismissed and it is against the said judgment that the said 31 persons had preferred a Writ Petition being Writ Petition No. 241/1997 which was disposed of by order dated 6/08/1997 and which was summarily rejected.
6. Be that as it may, the learned trial Court framed as many as 5 issues. Issue No. 5 was in relation to jurisdiction and the learned trial Court has held that in view of Section 19 of the Goa Public Premises (Eviction of Unauthorized Occupants) Act, the jurisdiction of the Civil Court was barred. Issue No. 1 was whether the strip of land belonged to the Communicate of Bambolim and issue No. 2 was whether the said strip belonged to the Government. The learned trial Court after assessing the evidence produced has answered issue No. 1 in the negative and issue No. 2 in the affirmative. In other words, the learned trial Court has accepted the claim of the Government that the suit structure is situated in the Government land particularly belonging to GMC and not to Communicate of Bambolim as claimed by the plaintiffs.
7. Admittedly Form No. I and XIV in respect of Survey No. 75/1 shows the name of GMC, Government of Goa, Daman and Diu and the Telecommunication Department, Panaji in the occupant''s column. Learned Counsel on behalf of the plaintiffs submits that the defendants had failed to prove their title to the land and therefore the suit of the plaintiffs ought to have been decreed on the ground that the plaintiffs were in settled possession of the land and in support of the same learned Counsel has placed reliance on the case of
8. Perusal of the pleadings shows that the plaintiffs themselves were not sure as to where they were erecting the suit structure. It appears that the plaintiffs first thought that the land on which they erected belonged to the Village Panchayat and therefore obtained a NOC dated 9/12/1992. Then they thought that the land was under the control of PWD and therefore they secured a NOC dated 1/07/1994. Thereafter the plaintiffs claimed that the land on which they erected the suit structure belonged to the Communicate of Bambolim and not to the Government and filed an application to obtain a Certificate to that effect on 31/10/1997 and obtained it on 19/01/1998 which they produced at Exhibit 34 and in support of the same examined Shri Jerome Monteiro, special attorney of the said Communicate and he stated that the land on which the plaintiffs had erected the suit structure was different from the land which was acquired by the Government of Goa for the construction of the present GMC and hospital at Bambolim. He confirmed that the suit structure falls in Survey No. 75/1 and further stated that out of an area of 75,975 sq. mts. only an area of 72,400 sq. mts. was acquired by the Government and balance of 3,575 sq. mts. continued to vest in the Communicate of Bambolim. He also stated that Communicate of Bambolim had filed a suit but gave no details of its present status. In other words, it was certainly not the case of the Communicate that a suit structure was situated in 3,575 sq. mts. which had remained unequaled by the Government, pursuant to the award dated 30/03/1966. The certificate dated 19/01/1998 shows that the Communicate would be writing to the Government to honor the said claim. The onus was clearly on the plaintiffs to prove that the structure was erected on the land of the Communicate, but, the Communicate itself was uncertain about the same.
9. The learned trial Court referring to the evidence of plaintiff No. 1 has stated that although he undertook to obtain document of title of the property in favor of the Communicate he did not produce any and in fact to the pointed suggestion that the land was acquired right up to the road and the compound wall was constructed leaving some space for maintaining the required set back, he tacitly admitted that it was so thereby admitting the right of the defendants to the land where the suit structure of the plaintiffs stood. When it was pointed out to him that the suit filed by the Communicate was dismissed, he had no answer to give. The learned trial Court, therefore, concluded that the plaintiffs had failed to prove by evidence that the title of the land where the suit premises stood, was of the Communicate. The learned trial Court noted that in the NOC at Exhibit 34 there was only mention of property under Survey No. 75 of Village Bambolim and no subdivision of property was mentioned. Referring to the Evidence of PW2, the learned trial Court noted that he was not aware whether the suit gadda was situated in the survey No. 75/1 or not and that he also did not know what was the status of the case filed by the Communicate of Bambolim against the State of Goa. When it was suggested to him that the suit filed by the Communicate was dismissed he was unable to give any answer.
10. Admittedly, when the award was made on 30/03/1966 the present survey must have not taken place. His claim therefore that 3,575 remained without being acquired has no basis. After the acquisition and the award, Correction of survey records must have been made and the survey records now show that the entire survey No. 75/1 is recorded in the name of the Government. Survey records may not be proof of title but certainly they show that the Government is in possession of the same. The onus that the suit structure was located in the land belonging to the Communicate of Bambolim was entirely on the plaintiffs and the plaintiffs failed to discharge the said onus. On the contrary, the Government had produced Form No. I and XIV which shows that they were in possession of the land subsequent to its acquisition. Admittedly, the plaintiffs had not obtained any NOC from the Government and, particularly, from the GMC for whose benefit it was acquired. This is a case where the plaintiffs had failed to prove that the suit Structure was located in Communicate land but on the other hand, the Defendants had succeeded to show that the said land was acquired for them and was subsequently recorded in their names in Form No. I and XIV. The plaintiffs having failed to discharge the onus to prove their case, the dismissal of the suit of the plaintiffs by the learned trial Court could not be faulted.
11. There is no merit in this appeal and, consequently, the same is hereby dismissed with costs.
