JUDGMENT
Couto, J.
1. Petitioners challenge in these Writ Petitions the Notices issued by the first respondent under S. 40 read with Ss. 41 and 184 of the Goa, Daman and Diu Land Revenue Code, 1968 (hereinafter referred to as “the Code”). Requiring each of them to vacate the portion of land specified therein, which allegedly belongs to the Government and is in their unauthorized occuption.
2. Though the facts are not the same, the main issues that each of these petitions gives rise to are, none-the-less, common, as common are the questions that fall for our determination. Hence, this single judgment.
3. The admitted and relevant facts may be stated. In Writ Petition No. 190/81: A piece of land admeasuring 2635.90 sq. mts., known as “Parte do Oiteiro Coneceicao” and situated at Altinho, Panaji, was granted by the Government under the provisions of Decree No. 3602 Dt/- 24th Nov. 1917, to one Aires Eqifanio Mariano de Santana Miranda, the late husband of the original petitioner Maria Berta da Costa Miranda, for the purpose of constuction of a residential house. The said land was duly demarcated by the Government and the grantee after building therein his residential house and a compound all without altering the boundaries as demarcated by the Government, got the said land and house registerred in his name in the Land Registration Office, Panaji. The city survey was carried out in the year 1980 and it was found, at that time, that the area occupied by the house and compound wall was of 2835 sq. mts., i.e. 199.10 sq. mts. In excess of the area of the granted land. Though the said area of 2835 sw. mts. Had been in posession of the grantee and his successors-in-title, exclusively, publicy and continuosly, for more than 40 years, the impugned Notice dt. 16th Cct. 1981,. Was issued by the first respondent, Deputy Collector, North Goa Division, requiring the petitioner to vacate the said area in excess (199.10 sq.mts.) within 15 days, failing which summary evication was to be carried out.
4. In Writ Petition No. 188/B/81: Petitioner is the owner of a property known as “Terreno das casa com pateo: situated at “Zona arrebalde do Palmar Ponte de Panjim” registered in the Land Registration Office under No. 9674 and enrolled in the Revenue Office under No. 117 old and No.111 new. The said property was purchased by the petitioner by a deed of sale dt. 21ast Oct. 1970. By another deed of sale dt. 3rd May, 1980, petitioner purchased the piece of land admeasuring 14 sq. mts. Which was part of the property know as “Predio Terreno com casa” . situated at Fontainhas and registered in the Land Regist-under Chalta No. 73 of P. T. Sheet No. 86 By the impugned Notice dt. 16th Oct. 1981, the first respondent stating that the petitioners has encroached upon Government land to the extent of 76.01 sq. mts. With his residential house, required the latter to vacate the area allegedly encroached upon by the 24th Dec. 1981, failing which summary eviction would take place.
5. Petitioners’ challege against the aforesaid Notices is two-flod. The attack indeed goes first to the root, the thrust being directed atainst the very source nof power to issue them, for it is contended that Ss. 40 and 41 of the Code are invalid on several grounds, and secondly, against the Notices themselves inasmuch as it submitted that they were issued mechanically without application of mind and in violation of the principles of natural justice and fair play.
6. As regards the first contention, Mrs. Mario Bruto D’Costa, the learned counsel appearing for the petitioners in Writ Petition No. 190/81, submitted that Parliament has enacted under Entry 32 of the Union List, the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short, “the Act”). which exhaustively deals with the eviction of persons who are found occupying unauthorisedly Central Government land. The Act constitutes a special law solely dealing with eviction of such persons, whereas the Code is a general law dealing with land revenue etc. and only passingly with the eviction of persons unauthorizedly occupying Government lands. The Act, therefore, being a special law, prevails over the general law, the Code. Secondly, in view of the provisions and the second proviso to S. 21 of the Government of Union Territiories Act, 1963, it cannot be disputed that Parliament has overriding powers to legislate, specially in respect of a Union Territory. Thus, whether the Code was enacted under Entry 35 or Entry 18 of the State List is, in truth, irrelevant and the doctrine of pith and substance’. Which otherwise according to the learned counsel, applies only to subjects in the concurrent List, is not attracted. In fact, the laws made by Parliament have supremacy over the laws made by parliament have supremacy over the laws made by a State Legislature and, therefore, if any incon-by Parliament, the latter prevails. Thirdly, the Code is ultra vires the Act, as a mere reading of the preamble and the provisions of the Act clearly indicates. Fourthly, the Act was enacted by Parliament much after the Code and, as such, it has impliedly repealed the latter, since both the competence of a State Legislature to enact a law in respect of property belonging to the Central Government. The learned counsel, then, placed reliance in support of the above submission on a number of authorities to which we will advert as and when necessary.
7. It is not clear to us whether the learned counsel’s case against the validity of Ss. 40 and 41 of the Code rests on repugnancy to the provisions of the Act, or on they being ultra vires the Act, or on the question of a special law prevailing over a general law, or on the implied repeal, or even on the limits of the legislative competence of a State Legislature, for he did not make his submissions in the alternative, and onthe contrary, it seems that his case is that, for all those reasons, the provisions of Ss. 40 and 41 are invalid. If that is the case of Mr. D’Costa, then, the contention is untenable as the said grounds exclude one another. Repugnancy requires that both the Legislatures, i.e. parliament and the State Legislature, can lawfully legislate on the matter, whereas the question of the vires arises when the legislative limits are exceeded. Then, where there is repugnancy or where a law is ultra vires, the questions of a special law prevailing over a general law and of implied repeal do not arise. Be that as it may, this question need not detain us as, except for the alleged repugnancy which requires to be examined in detail, the remaining submissions bave no merit. It suffices to say that, according to Mr. D’Costa himself, the Code was enacted either under Entry 35 or Entry 18, both of the State List, which respectively speak of “works, lands and buildings vested in or in possession of the State”, and of “land tenures including the relation of landlord and tenant; and collection of rents; transfer and alienation of agricultural land; land improvement and agricultural land; land improvement and agricultural loans, colonization” and therefore, it is rather difficult to understand how the Code can be ultra vires, specially when admittedly, the legislative limits had not been exceeded. Otherwise also, a Legislature is presumed to be acting within its competence and it is only when there are clear and unequivocal words in the statute which go to show that the Legislature has travelled beyond the limitations laid down in the Constitution that the Coufrt will pronounce the statute to be ultra vires ‘State of Bihar v. Charusila Dasi’. . We thus find no force in the contention that the Code is ultra vires and for the same reasons, we are unable to accept the proposition that the State Legislature has no legislative competence to enact a law in respect of property of the Central Government. Then, as regards the submission that the Act has impliedly repealed the Code either because it is a special law dealing like the Code with the same subject, or because it was enacted after the Code, it is pertinent to note that such submission rests on the assumption that both the Code and the Act cover the same field. A positive finding to that effect is thus necessary, but in any event, even if such finding is arrived at, the question will not be one of implied repeal, but of repugnancy between the Act and the Code. We need not, in the circumstances, advert to the observations of the Supreme Court in ‘Jain Ink Manufacturing Company v. Life Insurance Corporation of India’. , relied upon by Mr. D’Costa in support of his contention that a special law derogates a general law, a proposition which otherwise was not and is not, questioned.
8. We may, therefore, turn to the question of the alleged requgnancy between the Code and the Act. Repugnancy between two statutes, one made by parliament and the other by the State Legislature, arises only when both occupy the same field and there is either a direct conflict between them making it impossible to obey one without disobeying the other, or when Parliament’s intendment is to lay down legisdlation which is a complete and exhaustive Code relating to the matter regulated by the said law. This field should necessarily be on a subject included in the Concurrent List, since no such question can obviously arise if the State law relates to a State subject, as the State Legislature has exculsive jurisdiction to enact such law. This much clearly flows the provisions of Art. 254 of the Constitution and has been held by the Supreme Court, inter alia, in ‘The Kerala State Electricity Board v. Indian Aluminium Co. Ltd.’. . The situation is, however, slightly different as regards the Union Territories, for, as correctly contended by Mr. Nadkarni, the field here is wider and repugnancy may arise between two laws enacted on any of the subjects included either in the State List or in the Concurrent List. A comparative analysis of the relevant Constitutional provisions and of the Government of Union Terrirtories ACt, 1963 (hereinafter referred to as “The Union Territories Act”). namely Arts. 239, 239-A, 240(2), 245, 256(4) and 254 of the Constitution and Ss. 18 and 21 of the Union Territories Act, certainly leads to the irresistible conclusion that Parliament has, as regards the Union Territories, unlike in respect of the States, powers to legislate on subjects included in any of the three Lists in Schedule VII of the Constitution and therefore, sice the Legislative Assembly on the subjects included in the State List and in the Concurrent List, the legislative Assembly of a Union Territory is concureent, not only in respect of subjects in List III (Concurrent List). Hence, it is indisputable that the field of repugnancy is enlarged inasmuch as the Union Territories are concerned and embraces not only subjects in the Concurrent List, but also in the State List.
9. But are the provisions of Ss. 40 and 41 of the Code repugnant to the Act? The learned counsel of the petitioners answered this question in the affirmative, though Mr. D’Costa struck, at the same time, a different note by contending that strictly speaking, the question is not one of repugnancy between the Act and the Code, but whether the former, having been make by Parliament, has supremacy over the latter and, therefore, prevails. We find no force in this submission, for the simple reason that the question of which law prevails will arise only where there is repugnancy between two laws and not where a Legislature, exceeding its legislative competence enternches upon the subjects within the jurisdiction of the other, as in the latter case, that law will be ultra vires and void. We shall, therefore, advert to the alleged repugnancy between the Act and Ss. 40 and 41 of the Code.
10. It was argued in this connection that the expression, “State and “Union Territory”. In the Constitution , have different connotations as it is sen from the definitaions given in s. 3(58) and /s, 3(62-A) of the General Clauses ACt, and on the strenth of the ruling of the supreme Courty in ‘goa Sampling employees’ Association v General Superinendace co. of india Pvt Ltd., , it was further contended by the President i. e. it was furhter contended that isnce Union Territores are administeresd by the President, i. e. by the Cental Government the council of Minister envgisaged in Art. 239-Aof the Constitution does not partake of the nature of , and is not a State Government . It was then urged that the Act was enacted under Entry 32 of te Union LIst wheras the ?code was made uner Entries 18 and 45 of the State List and not under is Entry 35, as Entry 35 speaks of works lands or building the land in the Union Territories having been specifically declared in s. 14 of the Union Territores are not STates and connt hjold or possess any works land or building the land in tehUnion Territores having been specifcally declared in s. 14 of the Union Territories Act which gives powers to the Legislavitve Assembly of a Union Territory to the State or in the Concurrent Liast, resticts such powers bny making the exercise thereof contignent upon the matter being applicable to th3e Union Terrotry and the matters in cluded inEntry 35 of the State List do not as such concern the Union Territoris. Entry 18 of the State List being in respect ofland, land trnures, etc is couched in a language tht is sufficently wide to permit the enactment of laws relating to the eviction fro Government land nand, as such it is only uner the said Entry that Ss. 40 and 41 of the Code could have been enaced.Both the Code and the Act, over cover and occupy the same field, as it clearly frols from Ss. 14, 40 and 41 of the Code ands. 2(c) , (e) and (g) a fot the Act. Further, the argument proceeded the Act deals in a complete and exhaustive manner with the eviction of persons from Government land ………making it clear that Parliament intendmetn was to enact an exhaustive Code on the subject . The Code is, therefore repugnant to theAct a repugancy that goes to such an extend that not both cannot stand together.
11. In order to properly appreciate the above submission, it will be advantageous to recall tahtit is now well settled that whenver the valildity of a law is assifaled either onthe fground that ir is utlra vires or repugnant to a parqmount law., recourese to the dctrine of “pith and susbtance ahs tot be takento detemine to which Entry int he Legislative Lists the impugned law relates in itis “pith and substance”. This much as has been laid down by may, therefore usefully proceeded to advert to a few of such pronouhncements.
12. In ‘A. S. Krishna v. state of Madras the Supreme Court observed that it is of the essence of a Federal Constitution that there should be distribution of the legislative pwores of the Federeation between the Centre and the Provices, the scheme of distribution having been varied with different constutuons but even when the Constitution enumerates elabroately the topics on which the Centre and the States could legislate, some overlapping of the field of ligislation is inevitable. It was furtehr observed that for this reaos, the constitution of the laws made by the Centre and the State cfome up for decision time and agine and therfore to decide whether an impugned legislation is intra vires the doctrine that ragard must be had to its pith and substances was eovled that is to sa if a stature is found in subsatnce to ralte to a topic withinthe competence of the Legislature, it should be held to be intra vires even though it might incidentally trench on topics within(beyond?) its legislative comptence. Thje extent of encroachement on amtters beyond its competnce may be an element in determining whethr the legislation is colourable, i. e. whether in the guise of making a law on a matter wihtin its competnece the Legislature is in truth making a law on a subject beyond its comptence., But where that is not the position then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. Then, their Lord the area of encraochement. Then, their Lordhips of the Supreme Court added that to ascertain the true character of the legislation which is impugned on the ground that is it ultra vires powers of the Legislature which enacted it, one must have regard to the enactment as whole, to its objects and to the scope and effect of its provisions and that it would be quite such erroneous approach of nte question to view such a statute not as an organic whole, but as a mere collecion of sections, then disintergrate it into parts, those parts would severally fall, and by that process determine what portions thereof intra vires and what are not.
13. In ‘The State of Jammu and Kashmir v. M. S. Farooqui’, , the superme court reviwed the law on the subject and reiterated the view taken in the caser of A. S. krishna, (supra)
14. In ‘The Kerala State Electricirty Board v. Indian Aluminium Co. Ltd’, , it was observed that words, notwithstanding” in Cl (1) and “subject to”, in Cl (3) of Art 246 of the Constitution, mean that where an entryis in general terms in List II andpart of tah entry in LIst I takes effect notwithstanding the entry inLIst II. This is so also on the principle that the ‘special entry inLIst I and the word,” notwithstanding” in Cl (I) also means that if it is not possible to reconcile the two entreis, the enerty in LIst I will pervail. BUt before that happens attmept should bemade to decide inwhhlist a particular legislation falls. For deciding under which entry a particular legislation falls, the theory of “Pith and substance” has been evolved by the Copurts. If inpith and substance a legislation falls withinone LIst or the other but some protion of the subjecion matter of that legisaltion incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid withstanding anu incidental trencehing.
15. In ‘M Karunanidhi v. Union of India’ , the Supreme Court observed by the repugnancy between a law made by the State and by parliament may result from the following circumstances:-
“1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistenty and are absolutely ireconcilable, the Central Act will prevail and the State Act will, become void in view of the repugancy.
Where however, a law passed by the State comes into collision with a law passed by Parliament of na Entry in the Concurrent List, the STate Act a shall prevail to the extent of the repugnancy andt he provisions of the Central Act would become void provided the State Act would become void provided the State Act has passed in accordance with Cl. (2) of Art 254.
Where a law passed by the State Legislature while bieng sunstantilaly within the scope of the entries int eh State List entrenches upon any of the Entries in the Central List the constitutionality oif the lawe may be upheld by invoking the doctrine of pith and substance if on an analyisis of the provisions of the Act it appears that by and large the law falls within the four corners of the State Lost and ienterncment, if any if purely incidental or inconsequential.
Where . however, a ;law m,ade by the State Legislature of on subject by the Concurrent List is inconsitentwith and repugnant ot a previosus law made by Parliament, then such a law can be protected by obtainig the assesetnt of the President under Art. 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Presient would be thatso far as the State is concerned, it will prevail in the State and overule the provisions of the Central Act in their applicability ot the State only. Such a state of affairs will eixtis only until Prliament amy at any time make a law adding to or amendig, varying or repelaing the law made by the State Legisaltue under the proviso to Art. 254″.
16. It is thus clear and indisputable that an analysis of the “pith and substance of both the act and the code is necessary to determine under that what Entry in legislative Lists each of them was enacted in order to thereby enable us to record a finding as to whether the Code is repugneant to or untra vires the ?Act.
17. As stated in its premable, the Act was authorised occupants from public premises and for certain incidental matters. It runs through twenty sections. S,. 2 gives the definitions fo some expressionsoccuring in the ACt and in Cl ( c) defines “premeises” as meaning anuy land or any building or part of a building and includes the garden, grounds and outhoses,m if any appertaining to such buiding or part of a building and any fititng affixed to such building or part of building and any fitting affixed to such building ir oart if building for the more beneficila enjoyment thereof . Cl (e) defines “public premese” as lease meaing any prem,ises belonging to or taken of lease or requisitioned by or on behalf of the Central ?Goverment mand includes of the Central Government and includes any premese belonging to, to taken on lease by or on behlaf of any compay as defined in S. 3 of the companies Act, 1956 iun which not ess than fifty one percent. Of thepaid up share captial is held by the Central Government as defined in s. 3 of the Companies Act,1956 or a local authority) owned or controoled by the Central Governemnt and inrelation to eh Union Territory of Delhi premises belonging to the MUNICIPAL Corporation of Delhi or any municipal commtittee of notified area commttee and any prem,ise belonging tot he Delhi Development Authority whether such premises are int eh possession of or leased out byt, the said Authority. Cl (g) defines “unauthorised occupation” in relation to any person of the public premises without authority for such occupation by any person of the public premises after the authority (whether by way of grant of any other mose of transfer) under whichhe was allowd to occupy the premsies has edxpired or has been determined for anuy rasons whatsover, iN the remianign provisiosn the Act deals with appointment of estate officvers, their powers, preocedure for eviction, disposal of property left on pubnlic premsies appeals finality of orders, offences and penalites bar of jurisditiont, etc, The Act therefore, covers the fields of land or buildings belongig to or taken on lease, or requisitioned on behalf of the Central Governent and it would thus appear that it was enacted under Entry 32 of tye Union List, which evenue thereform but, as regards property situated in the State subjects to legislations by the State insofar as parliament by law otherwise provides”.
18. Mr. Nadkarni, however, oh the strenght of the Madhya Pradesh HIgh Court ruling in ‘L s. Nair v. Hindustan Steel Let, Bhilal, , submktted that the Act was enacted under Entries 32, 43 and 95 of the Union is List as well as udner Entries 6, 7 and 46 of the Concurrent List. Be that as it may it is not necessary for our purpose, vioz, whether the Code is repugnant to or ultra vires the Act, to got into this question in depth, for it is not in any event., disputed that the Act falls within the purvies of the siad Entry 32 and definitiely was not encated under any Entry in the State List. It suffices to say that in our view, the Act was mainly enacted under Entry 32 of the Union List, though some of its provisions may have been enacted under Entries 43 and 95 of the Union List and Entries 6, 7 and 46 of te Concurrent List.
19. Now, the Code was purportedly enacted to consolidate and amend the law telating to land and land revuene in the Union Terriotory of Goa, Daman and Diu. It has thirteen Chapters and it deals in Chapter II with revenue division, revenue officersand their appointmetns in Chapter III with lands grants and use teof , encroachemtn and relinquishment of land, in Chapter IV with land revenue, in Chpater v with survery of land in Chape\ter VI and VII with survey of land assessemt and settlement of land revenue of agricultural purpose in Chapter VIII with and land recordes inChpater IX, with boundaries and boundary marks, in Chapter X with realisation f and revune and other public demans in Chaper XI with procedure of revenue offiecer in Chpater XII with appeals revisions offivers, in and in Chapter XIII with miscellancous matters. An exmainiation of the provisions of those Chapters makes it clear that the Code regulaties riths inor over land its improvement grants encroachments and unauthority occupation of Government land and revenue matters. We are therefore iof the clear view that Mr. Nadkarni is right in his submission that the Code was enacted under Entries 18, 35 and 45 of the State List, which land, land tenures, land improvements works, lands and building vested inand in possession of the State and to land revenue, survey ets.
20. The question of the Code being repugnant t or ultra vires the Act, does not thus arsise. The Code was indeeed enacted under Entries 18, 35 and 45 ofd the State List by the Legislative Assembly of the Unoin Territyory of Goa, Daman and diu well within its legislative limits as pescribed in s. 18 of the Union TErriotores Act, whreas thaAct wa definitely enacted under Entry 32 of the Union List and perhaps also udner Entries 45 and 95 of the Union lsit ans Entries 6, 7 and 46 of the Concurrent List. By enacting the Code, the Legislative ASsembly of Goa, Daman and Diu has o not therefore, encrached upon the field or sphere of exclusinve legislative code and the Act been enacted under the same Entry either in tey State Lsit or in the Concurrent List ., Hence it would be entirely wrong to hold that the Code is ultra vires the Act or repugnant ot oit. This, ohntersie was to the Act of repugnant to it. This, otherwise was the view the taken by one of us (couto, J.) sitting singly in Writ Petn. No 17|B|81 P Chinna Swami v. Dy. Collector , Goa North Divisiosn, judgement having been delivered on 24th March 1983.
21. Realizing this much perhaps, Mr. D’Costa urged that the question is not exactly of repugnancy, but as he putit, one of supremacy of the Act over the Code , sicne the Act is a piece of legisaltion emanaitng form a superior legislative body. He contended that it unquestionably flows form the provisions of Art. 246(4) of the Constitution and Ss. 18 regards the Union Territoreis, Act that tas regard the Union Territores Parliament is supreme and can legisate at will on any of tye matters isn the three lsits of Schedule VII of the constuttion. The legislative powers of parliament are overriding and as such, the argument proceeded if the law maqde by the Legislative Assembly of a Union ‘Teritoryis inconsistant to a law made by Parliamanet, the latter will prevail. The Act and the Code occupy the same filed and they are inconsistent will prvail. The Act and the Code occupy the same field and they are inconsistent with one oanother . Both the Act and the Code (ss. 40 and 41) indeed deal with the eviction of persons who unauthority the Act being a comprehensive law which regulates the subjects in an exhaustive and complete manner. The legislatve intendment is that the prcedure prescribed in the Act, and that alone, is to be followed, for the eviction of any unauthrised occupant of land vesting in the Central Government. This flows from iot s. 15 which bars the jurisdiction of the Ciovil Courts to deal with such matters. The Act, therefore, beign a law amse by a superoor legialtvie body prviails over the Code Mr. D’ Costa concluded placing reliance of ‘State of Orsissa v. Ma. A. Tulloch & Co. .
22. Art. 246 of the Constitution delimitates the legisative powers of Parliament and of the State legisaltures exclkusively allocating the power sot legislate ofn the subjectw enumerate in the Union List and in the Sata List, trespectively ot the Parliament and to the State Legislaature and concurrent on those int eyhConcurrent List. Cl (4) howverm speifically provcisdes that “Parliament has pwerto make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the Sate List”. This was obviously neceesitated by the provisions of Art. 239-A privides for the creation of local legiosatures and council of minsiters with such constuttion, pwers and fucntion as specified in the siadlaw. In exercise fo the legislative powers conferred by ARts. 246(4) and 239-A parliamernt enacted the Union Territories Act. It I s. 18 deals with the extent of legislative power and provides in sub s (1) that subject to the provisions of this Act the Legislative Assembly of a Union Territory may make laws for the whole for any padr of the Union Territory witjh respect to any of the matters enumerrated in thee State List or the Concurrent List in the Seventh Schedule to the Constitution insofar as any such matter is applicable in relation toUnion Territories. However, sub-sec (2) postulates that “Nothing in sub-sec (1) shall derogate from the powers conferred of on Parliament by the Constitution to make laws with respect to any matter for a Union Territory or any part thereof.” S. 21 deals with inconsistency between laws made by Parliament and laws made by the Legislative Assembly and in its second proviso specifies that “…………..nothing this section shall prevent Parliament from enacting at any time any law with respect tot he same amtter including a law adding to amending varying or repealing the adding to amding varying a law adding to amde by the Legislatve Assemnbly of tye Union Territory”. It is clear from the above provisions of the Constutution and the Union Territores Act that the legislatve competence of the Legislative Assembly of the Union Territoreis ACt that the legislative competence of the Legislative Assembly of a Union Territory has its soucr in delegation of its legislative powers by Parliamant itself and is as such, on one hand, restricted to the limits of the delegation and on the other the pwers of Parliament ot legisalte on the subejcts falling with int he spere os delegation is also saved. List and in the ConcurrentList Parliament none the less retained its own powers to legislate on the samesubjects and therfore, unlike in the as of state Legisaltaaure the legisalteru of a Union Territory has no exclusive power to legislate on the subjects in the State List. Thus, if in a given case it happens that Parliament and theLegilstive Assembly of a Union Terrioty legisate on the same subject oin the State List or in the Concurrent List, the Law amde by the Parliamaent will in terms of s. 21 of the Union Teritories Act, prevail to the extent of the repugnancy, except where the law made by the Legislative ASsembly has een reserved ofor the ocnsideration of the President and has recived his assent for insuch a case the law made by the LKegislative Assembly wioo revail. We may also not that as provided in the sseond proviso of the said S. 21 Parlaiment has alsoway paower to legislate afrest with respectto a mattter altesdy covered by the legislature of the Union Territory . the question of supremacy of the law made by Parliamet vis a vis a law enacted by the Legislative Assembly of a Union Territory can only arise where both the laws are in rspect of thee same subject tin the State List or in the Concurrent List and never where such laws are made udner different Entries. Even, then the inconsistency must be substantial and not merely incidental or periheral, for in such a case the inconsidtenfcei will be incosequecitoal.
23. We already stated that the Act was enacted mainly under Entry 32 oif the Union List, while the Code was made under Entries 18, 35 and 45 of the State List. The Entries under which the Act and the Code were made being different, the question of supremacy of the Act as being enacted by a superor legislative body does nt, in truthg arise Mr. D’ Costa however, sumited a tat the Code and the ACt occupy the same fiedl and as such the problem of surepmacy is very much alive in the case at hand. Entry 32 of the Union List speaks of “property of the Union and revenue therefrom but as regards property situated in a State subjects to legislation by the State, save insofra as Palimant by law othe5rwise provies .He urges that legislation in respect of property of the Union TErritory under the relevant Entry in the STate List, but this is “save insofar as Parlaimant by law otherwise provides”. Thus accordings to the learned consel, Parliament can legislate ont hesame subject and thenm theat willgive cause to incosntency and the law amsde bnyu Paliament will prevail as enacted by the suprior legislative body. Thre is in our view,m no force in this contention, for the power given to the State to legisalte as regard property of the Union is subjects to the non making of a law on the matter by Parliament or to put it differently if Parliament legislates in that matter it will notne witint eh legislative competenvce of the State Legilsature to make a law on the subject. This being so the observation made by Supreme Court in M. A. Tulloch’s case (supra) are not appllicable tot he case before us, hwre Parliament has not made a aw namely the Act, in the fiedlsa occuped by the code. In that case the Lordship of the Supremencourt wre dealing with the problem of the validity of the Orissa Mining Areas Development Fund Act and in this connection, they observed that subject to the provisions of List I , the power of the State to enact legislation on the topic of “mines and mineral legislation on the topic of plenary and to the extent to which the Union Government had taken under is control the regulation and defelopment of mineral udner Entry 54 of List, I so, much was withdrwan from the ambit of the power of the State Legislature under Entry 23 of List II and legislation of the State which had rested on he existence of power under that entry would to the extent of that control be superseded or be rendered ineffective, for that would be case not of mere repugnanc berweem the provisions of two enactketns hut of denudation or dseprivation of State Legisalteive pwer by the declaration which Parlaimentiis empowered to make under Entry 54 of the LIst I and has made. Then their Lordhips further observed that repugnancy arises when two enactmens both withint he competnece of two legislatures collide and when the Constitution expressly of by necessary implicaiton provides that the enactment of the ne L:egisdalturehas supeorit over the other then to the extent of the repugnacy the oone supersedes the other. But two enactmens the Copurt proceeded, amy be repugnemtn to each of them is possible without disobeying the other; the test of two legislations containing contracdictory provisions is not, howeve, the only criterion of repugnacny for if a competent ligislatue with a superior efficary expreeesly or impledly eviences by its legislation an intention to cover the whole field, the enactmes of the ther legislateure whter passed beofere or after wouldne overborne on the ground of repugnancy. The Court furhter observed that where such is the position, the incinsidtency is demosntrated not by a statutes of butby the mere existence of the two peces of legislation. It s clear tah he laws that feel for the scrutiniy of the Supreme Court in the said acase were both occupying same field and henmce, the question of supremacy of the law made by Parliament was considered. That is not however, the case before us for contrary to what was contended by Mr. D’ Coasta the ACt and the Code though dealing with the eviction from land wvcested in het CEntral Government, nonetheless, occupy separate and is distinct fields. In Chinna Swami’s case (above) one of us (couto, J. ) sitting singly held that the field occupied by the Act is that of land vested in and in possession of the Central Government , whereas the Code deals with land vested in the Union Territory and therefore, both the Act and Code are not overlapping occupy separete and ….. fields. We specifically asked Mr. D’Costa whether there is any reason as to why we should nor follow the view taken in the said case. He submitted that the said decision must be reconsidered as tehr is nothing in the Code or in theAct to warrant the view that ne is in respect of land vested in the Central Governemnt but in possessionof the State and the other as regard land vested oin and in possession of the Central Government. We do not find merit in this submission of for the simple reason tha on one hadn the very definition of “public premises” in the Act gives an indication that the Act deals with premises which are in possession of the Central Government and on the other the Code has provisions that unmistakennly show that it deals with lands vested in the Central Governmnt ,but in possession of the Union Territory. We may, in ths connection refer to S. 212 onwards which deal with grant of Gvoernment lands by the local Government though ins. 14 it is stated that allland int he Union List and of Entry 35 of the State List lends, to some extent, supot to the view lends to some extent , support to tye view taken inchinna Swame case. Entry 32 of th Union List undeed speaks of “property of the Union and the revenue therfrom , but as regards property situated in a State subject to legislation by the State……”, and Entry 35 of the State List to “works lands and buildings vested in or in possession of the State”. Entry 35 of the State List isa mutatis mutnadis thesame as Entry 8 of the List Ii of Schedule VII of the Government of India ACt 1935 of the State List is which read “works land and buildings vested in or in possession of His Majesty for the purposes of profits”. The expression in possession of HIs majesty occuring in the afoeasd Entry 8 was interpreted by the aforadd Entry 8 was interpreted by the Federal Court in In re, Ref, under Section 213, Govt of India Act, AIr 1943 FC 13. The Court observed that “It can legislate with respect to protperty situate in Province because by virture of situate in a Provicne because by virture of s. 99(1) the Central Legislature may make for the whole or any part of British India to make laws of the Province or only for any part thereof, tht if its legislative power is stictly confined to the territory is the Province.Hence it pwer to legislate with respect to ‘work, land and builidngs vested in or in the possession of His Majesty for the purpse of the Province (List 2, entry NO. 8) is restricted to works, lands and buildings situated in the province lands and buildings is situate inte h Province itself. If by reason of any provisions of s. 172 or S. 173, lands or buildings are vested inHis Majesty for the limits of the Province te rights of 6the Provincial government over them are analogous to those of a private owner”. The Court also observed that ye expression “in the possession of” correspondes roughtly to “under the control of . The a Division Bench of this Court has observed in ‘M. Mohamed v. Unon of India dealing withthe provisions of the Act, theat the expression “belongin to doest tno meant the same things as owned by”. The two expressions have two different connotations and the expression “belonging to” will take within its sweep not only wonership, lbut also rights lesser than that of ownership. The expressions used in the ACt are to be interpreted and given the meaning in the context in which they are used. The Act has been placed on the statute book to give a summary remedy to the Government to evict persons in occupation of public premises to obviate the long ordeal of trial in a civil Court or of further proceedings therrefter. Hence, a wider meaning will have to be given to the expressions used in the Act for defining the concept of public premises. The, the Division Bench further observed that so viewed, there is no reasons why the premises of which possession for the time being vests in the Government and which are allotted by the Government to others while so in possession should not be held to be public premises. On the strength of the aforesaid rulings of the Federal Court and of the Division Bench of our Court, we may safely proceed on the basis that on one hand “public premises” as defined in the Act had a wider connotation as laid down in the case of M. Mohammed (above) and that the expression “in possession of the State”, occurring in Entry 35 of the has to be read as “under the control provisions in the code that empower the Government of the Union Territory of Goa, lDaman and Diu to make grants of land vested in the Central government, it is apparent that the control over the land vested in the Central Government but situate in the Union Territory is generally under the control and therefore, in possession of the local government. We therefore, see no reason to reconsider the view taken in Chinna Swami’s case and, on the contrary, finding it correct, reiterate the same. Thus in our view as there is no inconsistency between the Act and the Code and both occupy distinct fields, the question of supremacy of the law made bby Parliament does not all arise. It is true that Mr. D’ costa urged that since S. 15 of the Act bars the jurisdiction of the courts, the intendment of Parliament while making the Act was to provide for an exclusive procedure to evict unauthorized occupants from Government land and therefore, Ss. 40 and 41 ofd the Code are inconsistent to the ACt. The submission does not appears to be correct and, as such, we are unable to accept it. As rightly contended by Mr. Nadkarni, relying on ‘Union of India v. Addl. Collector, Monghyr, and on ‘Arjun Babloo Tukaral v. G.V. Javalkar, , different procedures are permissible on the same subject. In Union of India v. Addl. Collector, Monghyr, the Patna High Court had been dealing with the provisions of the Bihar Public Land Encroachment Act vis-a-vis the provisions of the Act. Under the Bihar Act a procedure for eviction of unauthorized occupant had been laid down and in view of S. 15 of the ACt, the question arose whether two remedies, one under the Bihar ACt and the other under the Act, were permissible. It was held that the procedure laid down in the Act or the procedure laid down in the Railways Act was to be followed for the eviction of a person who was unauthorizedly occupying premises in possession of the Railways. The Division Bench held that on one hand, the Railways Act was special Act vis-a-vis the Act and therefore, lwas to be followed, and on the Act and the other under the Railway ACt for eviction of unauthorized occupants of public premises were permissible and valid. It is thus clear that the submission of Mr. D’Costs cannot be accepted.
24. Mr. D’costa further contended that the procedure laid down in S. 40 of the code for the eviction of a person who unauthorizedly occupies government land is extremely summary and even a show cause notice is not contemplated before the issuance of the eviction order. This being so, according to the learned counsel, Ss. 40 and 41 are violative of ARt. 14 of the Constitution. In fact, the principles of natural justice, lnamely the principle of ‘audi alteram partem’ has not been respected. Reliance was placed in this connection on the decisions of the supreme court in ‘Olga Tellis v. Bombay Municipal corporation AND ‘Union of India v. Tulsiram ‘Patel’ . It was however, contended by Mr. Nadkarni that the principles of natural justice need not necessarily be read in a statute, since the intendment of the legislature may be in a given case, to exclude the same principles. The Act and Ss. 40 and 41 of the Code deal with the eviction of unauthorized occupants from the Government land. Public interest demands a quick and effective action and therefore, the legislature felt it proper to exclude the principles of natural justice, namely, of giving a hearing to such unauthorized personbefore passing the order of eviction. Apart from that, the learned counsel further contended that it is not correct to say that under S. 40 of the Code, the unauthorized occupants are left without any remedy. In fact, in sub-sec. (2), it is provided that the Collector shall lserve a notice on the unauthorized occupant requiring him within such time as may appear reasonable after receipt of lthe said notice, lto vacate the land and if such notice is not obeyed, the Collector may remve him from such land. Now, any order passed by the collector is appealable and therefore, an unauthorized occupant can always, if he feels aggrieved, appeal against the order passed by the collector is appealable and therefore, an unauthorized occupant can always, if he feels aggrieved, appeal against the order of the collector. In addition, S. `1493) of the Code lays down that where any property or any right in or over any …………. . …………. Or by any person as agianst the Central Government and the claim is disputed, such dispute shall, after due notice has been given and after holding a formal inquiry, be decided by the Collector under sub-sec. (2) of S. 40 is bound to give some time to the unauthrorized occupant to vactate the land, such occupant can always sraise a claim in respect of the land occupied by him which has necessarily to be decided under sub-sec. (3) of S. 40. This order can be challenged in appeal or in revision and even a civil suit can be instituted in terms of sub-sec. (4) of S. 14. Be that as it may, it is also relevant to be recorded that in the present case the impugned order was passed after an inquiry was held by the survey Officer in respect of the land unauthorizedly occupied by the petitioners. The petitioners were given ample opportunity to put their case before the said Survey Officer and they had not availed themselves of the remedies provided in law by way of appeal or revision, nor they had filed any civil suit to establish their irght or claim over the land unauthorizedly in their occupation. The learned counsel further submitted that in Chinna Swami’s case, this Court had dealt with the same point and held that Ss. 40 and 41 of the code are not violative of ARt. 14 of the Constitution.
25. There is great force in the submissions of Mr. Nadkarni. In fact, the code deals with the eviction from the lands vested in the Central Government of the unauthorizeed occupants thereof and therefore, public interest might have, in the opinion of the legislature, demanded a quick and summary pricedure oto evic persons who unlawfully had been occupaying jGovernment land. In such circumsntacnes and in view of the public interest, the legislatute might have felt that the principles of natural justice, particularly the principle of ‘audi alteram partem’ should be excluded in such a case. Mr. D’Costa did not dispute that this much is permissible, but relying on the decision of the Supreme Court in Olga Tellis’ case , contended that a departure from the rule of natural justice of ‘audi alteram partem’ may be presumed to have been intended by the legislature only in circumstnaces which warrant it and such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence. The Court was delaing in the said case with the validity of the relevant provisions of the Bombay Municipal Corporation Act, namely of the procedure prescribed in S. 314 of the said Act which provides that the Commissioner may, without notice, take steps for the removal of encroachment in or upon any streets, channels, drains, etc. The court observed that in order to decide whether the procedure prescribed by S. 314 is fair and reasonable, it was necessary to determine the true meaning of that Section, because the meaning of law determines its legality band if a law if sound to direct the doing of an act which is forbidden by the constitution or to compel, in the performance of an Act, the adoption of a procedure which is impermissible under the Constitution, it would have be struck down. Thus considered in its proper perspective. Their Lordships observed, S. 314 is in the nature of an enabling provision and not of a compulsive charactr. “It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not required and, cannot be read to mean that, oin total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What S. 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, S. 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion had to be exercised in a reasonable manner so as to comply with the constitutional mandate athat the procedure accommpanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretaition because it helps sustain the validity of the law.” The Court then proceeded as under :–
“It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (‘Hear the other side’) could be presumed to have beenintended. Section 314 is so designed as to exclude the princiles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard sas to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstnaces which warrant it. Such circumsttances must be shown to exist, when so required, the burden being upon those who affirm their existence.”
26. The above observations of the Supreme court were obviously made in the contedxt of S. 314 of the Bombay Municipal corporation Act and in view of the word “may” occurring in it. But, for our purposes, it is material to observe that the Supreme Court clearly ruled that there are situations which demand the exclusion of the rules of natural justice by reason of diverse factors. This being the case the above ruling in Olga Tellis’ case, does not substantially advance the case of the petitioners. Similarly, the Tulsiram Patel’s case, (above), their Lordships of the Sujpreme Court were pleased to quote with approval the earlier decisions of the Supreme Court in “A.K. Kraipak v. Union of Inda’ , ‘Union of India v. Col. J.N. Sinha’ and ‘Swadeshi Cotton Mills v. Union of India’ .
27. In Kraipak’s case, , the supreme Court observed that whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case. It was further observed that the “aim of the rules of natural justice” is to secure justice, or to put it negatively, to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not suppland the law but supplement it. This view was approved by the Supreme Court in col. J.N Sinha’s case, (above) and also in the Swadeshi Cotton Mills’ case, (above). It was observed in the latter case that “the principles of natural justice have taken deep root in the justidical conscience of our people, nurtured by ‘State of Orissa v. Dr. Binapani Dei’ , Kraipak (above), ‘Mohinder Singh Gill v. Election Commissioner of India’ , ‘Maneka Gandhi v. Union of India’, , etc. etc. They are now considered so fundamental as to be ‘implicit in the concept of ordered liberty’ and, therefore , implicit in every decision-making function, call it judicial quasi-judicial or administrative. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of naturla justice, such statutory silence is taken to imply compliance with the principles of nattural justice, such statutory silence is taken to imply compliance with the principles of nattural justice. The implication of natural justice being presumptive it may be excluded by express words of statute or by necessary intendment. Where the conflict is between the public interest and theh private interest, the presumption must necessarily be weak and may, therefore be readily displaced.” It is thus indisputable that the principles of natural justice can be excluded either expreslly or by clear intendment of the legislature. It would appear that that was precisely the intendment of the legislature while enacting Ss. 40 and 41 of the Code as public ……… ……….. ……… Government land But at the same time remedies were provided enabling a person w2ho is occupying u;nauthorizedly land vested in the central Goovernment to challenge the order of eviction. Such remedies are either by way of appeal against the order of eviction or bny raising a claim under S.14(4). It is rather difficult for us to accept the contention of Mr. D”Costa that Ss. 40and 41of the code violate the provisions of Art. 14 of the constitution for the omission of the rule of audialteram partem in this context does not vitiate the same provisions of the code.
28. Mr.D”Costa next contended that ‘in any event the impugned orfder passed by the first responded under S.40 of the code is invalid inasmuch as in the facts of the case any action t;o be taken against the petitioners oughht t;o have been under sectio;n 37of the code and bnever under S.40. In fact, the husband of the original petitioner in writ petition No.190/81had been granted abo;ut 40years back the piece of land inher occupation and since then she had been in peaceful,continupous and public possessiom of the said land a resdential house with its compound wall having beenm built therein. In the cirtcumstances, at the modt the original petitionerr could be held to be an encroachment and therefore the provisions ofS.37 whiich deal with the removal of encroaachment og land vesting in the central Government hadto; be applied . the petitioner was not physically occupying the portion allegedlu in her unauthorized possession, as inm the words of Mr.D’costa , she is not sitting on the top ofg the compound wall and therefore canno;t be said to be ocupying unauthorizedly a portion of land vested in the central Government.” We arte unable to understand the argument ofland and has been continnnnuously and has been continuously abnd peacefully ion her posession a hjouse and a compound wall having been built within the Government and has been continuosly and peacefulluy in hert possession a ho;use and a compound wall having been built weithin the limits of the demarcated area. If so, it seems to us theat contrary area. If so it seems to; ua that contraty to thre submission of Mr. D’costa the orginal tpetitionert had beebn in physical possession of the demarcated area, including the area in excess of the demarcated area. Including the area in excess of the grant It is thus rather difficult to accept the possessing or sjhe was not in occupation of the portioon which is in excess of the grant.
29. We come n;ow to the last subnmission ofg Mmr. D.Cosytas he contended that the land in question had been handed over to the late husband of the original petitioner whenthe grant of 2635.90 sq. mts. Was made by the Government under the prtovisions of Decree no.3602dt.24th nov.1917. At that time the ploooot in posession of the ortigional petitioner had been demarcated and a resdential house as well as a compound wall were built in the delimited area without any encroachment of land by the late husband o;f the original petitiobner. The said land as demarcated has been thus in possession of the late husband of ther orginial petitioner and in her own fgort over 40years exclusively, publlicly and without interryupyion asowners thereof and therefore accortding to the learned counsel they had acquired right over the ares wahich is alleged to have been in authotized possessionm by way ofd adverse possession. These avernments were made in the petition and were bnoot denied bny the respondents, since they chose not to gfile anyreturn. The learned counsel urged placing reliance on the decision og the supreme court in Government of andhra pradesh v.thummaia Krishna Rao’ that in the circumstances, the Government could not have at any rate, acted in a summary ,manner.
30. It wasd howvere contebnted by Mr. Nadkarni that the question of the acquisition of title ovver the ara unauthorizzwsly occupied by the petitioners had to be looked into on two points of time, nameluy up to the annexation of this territory by India and thereafter. In fact it is the case of the petitioners themseleves that the grant of land in their possession was made by the Government and therefore by implication it is admitted by them that the land was Government land i.e. public property. Now according yo the learaned co;unsel, under which the grant was made, Government land cann;ot be acquired by way of precription or adverse possession . This being so, the very basis of the contention ofg Mr.D”Costa fails and therefore, the same submissio;n is to bedismissed in limine. Even if the Government land copu;ld be acquired by way of prescription, 30years and at the time opf annexation, that period of time has not lapsed. Then Mr. Nadkarni relying on the decisionm of the supreme court inm “vinodkumar shantilal Gosalia v. Gaanagadhat Narsingdas Agarwal submitted that the lawsw which were in force in this territorry has ceased to bne applicable from, the time the aameendment to the constitution annexing Goa.
31. Daman and Diu was passed on 5th March i982. Therefore the limitation period srtrictlyu speaaking stars o;n 5th March 1982, but at the highest on 19th December 1961. The city surveywas held in the year 1973 and the city survety officer had givebn his decision on the year 2974.raised by the petitioners in the year 1974. The petitioners in the year 1974. The petitioners didi not file NY ASUIT IN TERMS OF SUB-SEC.(4) OF THE CODE NOR THEY PREFERRED ABND APPEAL OR REVISION AGAINST THE DECISION OF THE CITY SUYRVEY OFFICER The starting point for the limitation would thus be, at the highest, according to mr. Nadkarmi,19th December. 1961and therefore in any event the claim of the petitioners wqaas in 1981 when the preseent writ petitions were filed bared by limitAtion. ReliBNXE WAS PLLcedin this connection on the decioon of the Allahabad High Court ibn “Zila Parishad v.Ram Khelawan”
32. We already said that it is the case of the petitioners in writ petition No.190/81 that a piece of land admeasuring 2635.90sq.mts. situate at Altinho, Panjim,had been granted to AiresEpifanio, Mariano de santana Miranda the late husband of the original petitioner by the Government under the provisions of Decree.No.3602dated24th November 1917. It is further the case of the petitioner that after ther grant the piece of land was demarcated by the Government officers and possession there of was given to the said Aires Miranda who built a reswdential house in the said pioot as well as a compound wall without exceeding the area which was demarcated. It is also the dcase of the petitioners that since the time of the grant the late Aires Miranda and the petitioners had beeb exclusivelu , public ly and without interruption possessing and enjoying the said piece of land as their own and this for over 40years. From these averments. As rightly pointed out by Mr.nadkarni the petitioners impliedluy admitted that the land and therefore, was a buplic property. The grant was done during the erstwehile portuguese administration and under the provisions of law which were in force at that time. It is well setted in the portuguese law(see prof. Marcel Caetano in “Manual do Direito Administrativo’2nd edn. Pgs.303onwards that piublic property cannot be transpot ferredin favopur of private persons unless by way of grants or by way of leases. The public immoveable propertyunder the portuguerse law cannot be therefore alienated in any other way or manner. That is why the decree no.3602which deals with the grant of Government land has specifically provided and made it clear that the Government land co;uld not be ;acquired by way of prescription or adverse possession. This being the law on the subjiect, it is obviouts that at least up to the time of the annexation of this territory by India the possession and acquisition by way of prescription. In any case it may be pertinent to note that even if titile over Government land could be acquired by prescription admittedly, the petitioners had no;t been possessing the land in question at the time of the filling og the could never have aacquired title over it as posssession for at least 30years is necessary for the precription to opeserveed in Gosalia case (supra), in cases of acwuisition of a territo;ry by conquest rights which hads accrued under the old laws do; not survive and cannot be enforced against the new Government unless it chooses to recognize those rights. The court further observed that in order to recognize the new Government to cvontinue the old laws under which those rights had accrued because old rights can be recognizxed without continuing the old laws as for example by contract or executive action On the one hand the court added old rights can be recognized by the new Government without continuing old laws: on the o;ther the mere continuandce of old laws does not imply the recongnition og old rightsd which had ……………………..something more than conthnuance of old laws is necessary in order to support the claim that old rights have been recognized by the new Government. It is not disputed that the terriorties of goa, Daman and Diu had been acquired by conquest and the very executive action on the part of the Government in ho;lding the city survey and then holding an inquity in respect of the claims of the petitioners goes to show that the Government o;f India has not recxognized the rights if any that had accrued to the petitioners under the old portuguese laws which were prevailing in this territory prior to 19th December 19621. We already said that no rights at all had accrued to the petitioners but in any event asd rightly pointed out by Mr.Nadkarni the city survey took place somewhere in 1973 and a formal inquiry under s.14(#)of the code was hellld to deal wioth the claims of the petitioners. The City survey officer decided that the petitioners were in unauthorized occupaation of some portions of landwhich are specified in these petitions. The petitioners in both the petitions did not challenge the said order of the city survey officer leither by way of an appeal or revision or by filing the suit. This being so, the period of limitation prescribed in the limitation Act hasd not yetlapsed and it was too late in the day forthe petitions of land as lateas im 2982 when the presednt writ petitions were file. In these circumstances, the decision of the supreme court in Government of Andhra pradesh v. T. Krishna Rao (above)is not advancing the case of the petitioners. In this connection of Mr.G.Tamba the learned counsel appearing for the petitioner in writ petition No.,188/B?81. The learned counsel contended that the portion of land which wasd found oijm the inquiry to be in unauthorized possession opf the petitioner in that writ petiiton, is duly registered in his name in the land Registration office. The contention howevwer for the reasons given above has no merit and cannot be sustained.
33. Mr. Naadkaarni contended that apartfrom the reasons above that clearly make these petitions liable to nbe doismissed, there are additional grounds for dismissing them.According to the learned counsel, the poetitions were lible to be rejected in limine since the petitioners have not availed themselves of the remedies provided buy law before approaching this court with these writ petitions. He first contended placing relance on the decision of this court in the secretary of state for India v. Chimanalal Jamnadas (1942)44Bom LR295:(AIR 1942 Bom 161), that the order under S.40of the code is an appealableorder.Secondly, he urged that under sub-sec. (2)of s. 40, the collector whileserving a notice on a personm requiring him to vacate the land unauthorizedly occupied is bound to givwe some time which in his opinion appears to bne reasonable. Therefore, if such person has any claim over the said land, he can alwauds raiseda dispute under sub-sec.(3)of S.14whgich has to be decided byu the collector or survey o;fficer. This orooder can be challenged in appeal or revision and also a suit can be filed in this connection. Thirdly, the learned couinssedl further submitted, the impugned notices were issued after a formal inquiry under sub-sec.(3)of S. 14of the code Hence, according to Mr. Nadkarni these petitions on that count also are liable to; be dismissed. There is great force and substance in the above submissions of Mr.Nadkarni for undoubtedly the bnotice issued under S.40(2)of the code parkated the nature of an order and as held by this courtt in the secretary of state for IndiaV.Chimanlal Jamnadas (AIR 1942Bom 161)(above), such order is appealable. It is true that the said decision of this court was passed in the ;esponding law of Maharashtra, but the said law is pari materia with the code and theref;ore, the law laid down in the said decisio;n is fully aplicable. Similarly, as flows from the averments made in the petitions themselves, an inquiry was held by the city survey officer under S.14(3)of the code and a decision against the petitioners was passed by the said officer. Petitionmers was passed by the said officer. Petitio;ners was passed by the said officer. Petitioners was passed by the o;fficer. Petitioners ion both the writ petitions didi bot avail themselves of the remees pf appeal or revision or of the suit undersub-sec. (4)of S.14of the code. Henbce strictly speaking, these poetitions were to be dismissed in limine. However, we admitted thesepettitions and we heard them on merits. This being so, the ground that the petitioners did not avail themselves of the alternate remedies provided by law consititutes only an additional ground for dismissing the petition.
34. Wealready said that the petitioners had been in occupation of the land which is alleged to be in their unauthorized possession for a long period of time. In writ petition No.190\81, the land came to the possession of the petitioners by way of a grant maade by the Government officers had demarcated it and the late Aires Miranda built his residential house with the compound wall without occupying any space that for over 40years the petitioners in the said petition had been in exclusive, bublic and continuoours possession of the said land. These averments were not challenged by the repondents since they chose not to file any return,. Therefore , we can safety proceed on the basisi that those averments are true anddretur. Therefore, we can safely prooceed on the basis that those averments are true and it would thus appear that the petitioners in both the petitions has been in possession of the land which is unauthorized occiupied by them in good faith. Wefeel in these circumstances, and since no construction can be made in the otherwise not located encroached pieced of land that the case of the petitioners in both the petitions deserves to bne considered and looked in to sympathetically and the occupation ogf the land held unauthorizedly by them regularized if possible in exercise of the powers conferred by s.38of the code.
35. The result therefore is that these writ petitions fail and are consquently dismissesd with costs. The rule in both the petitions is accordingly, discharged.
36. The learned counsesl for the petitioners orally pray for leave to appeal to the supreme court. Leave to rejected. The operation of the hjudgment just delivered is however, stayed for a perios of four weeks from today as prayed for.
37. Petition dismissed.