JUDGMENT
E.S. Da Silva, J.
1. Rule, by consent returnable forthwith.
2. The petitioner who claims to be the co-owner of the property “Borodo Molio” which forms a part of the larger property known as “Condade de Mayem” has filed this petition under Articles 226 and 227 of the Constitution of India seeking for a writ of mandamus against the respondents No. 1, 2 and 3 commanding them to take appropriate action in pursuance of notices dated 16th September, 1993 and 1st August, 1994 respectively to demolish the illegal constructions carried out by respondents No. 4 and 5.
3. It is the case of the petitioner that the said property has been declared as evacuee property within the meaning assigned to this term under the Goa, Daman and Diu Administration of Evacuee Property Act, 1964 (hereinafter called “the Act”) and the Rules made thereunder (hereinafter called “the Rules”). It is stated that in terms of section 7 of the Act the respondent No. 1 has been empowered to take possession of the evacuee property vested in him and for this purpose has been authorised to use the necessary force and requisition the aid of the Police, if necessary. However, although the said respondent is duty bound to maintain the property and preserve it against encroachments, there have been serious lapses in the discharge of this duty. By complaint dated 8th August, 1993 the petitioner pointed out to the respondent No. 1 that the respondent No. 4, by taking advantage of the fact that his brother is one of the watchmen employed by respondent No. 1, had started putting up an illegal construction in the property. Pursuant to this complaint the officers of respondent have carried out inspection of the site and thereupon a notice was issued to him on 16th September, 1993 under section 7 of the Act requiring the said respondent No. 4 to stop immediately the work of illegal construction and to demolish the same within 15 days. Similarly the petitioner brought to the notice of respondent No. 1 with regard to the illegal house/cow shed and well which the respondent No. 5 was constructing in the suit property. Respondent No. 1 issued also a notice dated 1st August, 1994 calling upon the said respondent to stop immediately the work of the construction and to demolish the same within 15 days. It was stated that despite the service of these notices dated 16th September, 1993 and 1st August, 1994 both the respondent No. 4 and 5 have not bothered to stop their activities of illegal constructions and instead they had commenced further encroachments being encouraged by the inaction on the part of the respondent No. 1.
4. On behalf of respondent No. 4 an affidavit was filed wherein he has contended that the property “Borodo Molio” in which he resides with his family was declared as non-evacuee property by the Custodian of Evacuee Property by his order dated 14th November, 1967. It was stated that in view of this position the Custodian has no jurisdiction to issue any notice to him to vacate the house in his occupation. It was also stated that no notice was received from the Custodian with regard to any illegal construction. The respondent denied that he had carried out any extension to his residential house or erected an illegal construction. Hence, the Custodian has no authority to order/demolish any part of his residential house and/or remove encroachment and whatever orders/demands made by the respondent No. 1 asking him to be evicted are without jurisdiction.
5. Respondent No. 5 has also filed an affidavit in reply to the petition wherein he sought to plead that his house is situated in the property surveyed under No. 293/O and in Forms No. I and XIV the name of the property mentioned is “Dhat” and not “Borodo Molio”. It was thus denied that the house of the respondent was situated in the property “Borodo Molio”. It was also denied that the property “Borodo Molio” was an evacuee since the same has been declared as non-evacuee property by the Custodian, vide order dated 14th November, 1967. The respondent claimed that the Custodian of Evacuee Property had no longer any jurisdiction to take action against him under the provision of section 7 or any other provisions of the Act. It was also pleaded that in the course of the inventory proceedings of 1929 the southern part of the property was allotted to the late Eurico Noronha and his wife Ricardina has a right to the same, the petitioner having no right or title thereto. The respondent contended that he is residing in the property “Bhavkai Dhat” surveyed under No. 293/O since the last more than 40 years and the suit structure was built by his ancestors with the permission of the owners Eurico and his family. He therefore claimed that they are mundkars in respect of the suit structure. It was also contended that with the permission of the panchayat he has repaired his house in the year 1977. As such the Custodian is not entitled to take any steps or has any jurisdiction to evict him.
6. We have heard learned Counsel and noted the pleadings advanced by the respondents claiming ownership of the structures sought to be removed by the petitioner on the ground that the same are encroachments made by them after the properties were taken possession by the respondent No. 1 under the Act. Although the respondents have claimed that the suit property in question has been declared non-evacuee there is nothing on record to show that the property was declared as non-evacuee by any order of the Custodian, namely an order dated 14th November, 1967. Further by Notices dated 16th September, 1993 and 1st August, 1994 the respondent No. 1 has directed the respondents No. 4 and 5 to stop immediately the work of the constructions which were being carried on in the property holding them as illegal encroachments attempted to be made without prior permission of the respondent No. 1. At no time the respondents have challenged or disputed the authority of the said respondent No. 1 to issue such notices and therefore, under Article 7 of the Act, the respondent No. 1 was bound to comply with the legal mandate of preserving and protecting the property which is under his custody and possession by removing whatever encroachments occurred therein.
7. In the circumstances we are of the view that in the exercise of his statutory duty and without prejudice to any rights that the said respondents may claim to the said structures this petition can be disposed of by issuing to the parties specific directions in this regard. We accordingly direct the respondent No. 1 to send for a competent requisition to the Government, if any, as required by section 7(2) of the Act within seven days from the date of this order and the respondent No. 2 is directed to take a decision on the matter within one week thereafter. We further direct the respondent No. 1 to comply according to law with the terms of the notice and take whatever steps are required to remove any encroachments in the evacuee property namely “Borodo Molio” under his care and custody on or before 31st March, 1995 positively on the understanding that no extension shall be sought for by respondent No. 1 and 2 to execute the terms of this order.
8. Mrs. Agni’s submission that under the guise of this order and during its implementation by the respondent No. 2 their mundkarial house, if any, might be sought to be demolished cannot be considered by us but the respondents are free to resort to competent means and proceedings so as to seek remedy, if available, against such eventuality.
9. Rule accordingly made absolute in the above terms with costs.