JUDGMENT
Da Silva, J.
1. The petition is directed against the order of the Aval Karkun, Record of Rights, Panaji, dated 13-3-1985 in Dispute Case No. 361 of Chorao village whereby the learned Aval Karkun has allowed the application of the respondent No. 2 (hereinafter called ‘the respondent’) dated 9-12-1978 and caused the entry in the “Other Rights” column of Survey No. 62/4 to be deleted. The subject-matter of the petition is the property “Catol” situated at Chorao, Tiswadi Taluka, surveyed under Nos. 62/4 and 62/5. Survey No. 62/4 is a cashew garden and Survey No. 62/5 is a paddy field.
2. The case of the petitioner is that his name was entered as tenant of Survey No. 62/5 in the Index of Land, in the “tenants” column. In respect of Survey No. 62/4 there was an entry in the name of the petitioner in the column reserved to “Other Rights”. The entry was “Cashew trees on rent to Suryakant Datta Vadiekar”. Suryakant Datta Vadiekar is the petitioner. In respect of the same survey and in its column 8 there were two entries “cowshed” and “house”. Column 7 was showing total area of cowshed as 0025 sq. meters and 0025 sq. mts. also in respect of the house. When the Index of Land was kept for inspection on 9-12-1978 an application was made on behalf of the respondent who is the owner of the land by his mother raising objection to certain entries. In the said letter on behalf of the respondent his mother has stated that “In the Survey No. 62/4 Karabhat, Chorao, marked cowshed and a house, whereas the cowshed and the house are non-existent, as was observed and recorded Survey Karkoon and other Surveyors. Therefore the said cowshed and the house have to be cut off from the survey records” (sic).
The petitioner states that although notice was given to him of this application he did not file any reply because he had no objection in the deletion sought for by the respondent. Thereupon the statement of one Prudente Fernandes, the constituted attorney of the respondent, was recorded by the Aval Karkun on 13-3-1985 and on the same day the petitioner’s statement was also recorded during which he purportedly said that he had no objection to delete his name from the “Other Rights” column of survey No. 62/4 as presently there was no structure etc. held by him in the said Survey number. Thereafter it was only after the promulgation of the Record of Rights that the petitioner came to know of his name having been deleted from the column “Other Rights”.
It is further the case of the petitioner that in the result the Index of Land shows that the entry regarding “cowshed” and “house” continues as it was while the entry on the “Other Rights “column being “Cashew trees on rent to Suryakant Datta Vadiekar” is bracketed. The said Index of Land certified copy whereof was exhibited by the petitioner at page 29 of the paper-book indicates that the said bracketing or deletion of the entry was done as per D.C. No. 361. It was also stated by the petitioner that by the time he came to know about the deletion of the entry to enable to know who is the owner of the adjoining land only on 21st August, 1987 he made an application to the Aval Karkun for review of the order directing the deletion of the entry along with the application for condonation of delay. In response the petitioner received a communication from the Mamlatdar of Record of Rights dated 8-12-1987 stating that no review could be considered at that stage as the Survey records of Chorao village had been already promulgated. Hence, since review was not possible the petitioner filed an appeal to the Deputy Collector and Sub-Divisional Magistrate, North Goa.
It seems that the respondent raised a preliminary objection in this appeal regarding limitation which was overruled by the Deputy Collector vide judgment dated 13-9-1988 in Appeal No. RTS/APL/1/88. This decision of the Deputy Collector holding the appeal filed within time was however set aside by the Additional Collector by judgment and order dated 12th July, 1989 in Case No. LRC/AC/APL/20/88. Against this order of the Additional Collector an appeal was filed by the petitioner before the Administrative Tribunal and thereafter withdrawn. Hence this Writ Petition seeking to challenge the order on behalf of the Aval Karkun of the Record of Rights.
3. Shri Lotlikar’s learned counsel for the petitioner’s first submission is that the impugned order of the Aval Karkun shows gross misdescription both with regard to the reference made to the respondent ‘s application being also misconceived in respect of the facts recorded by him during the course of the enquiry. It was further submitted that both the petitioner ‘s appeal as well as the revision filed after the promulgation of the Record of Rights were obviously not maintainable once after the said promulgation only a suit for declaration would lie as appeals and revisions had to be filed within a prescribed period of time before the promulgation. Therefore, the learned counsel stated, none of the orders passed in this revision had adjudicated in any case or at any rate upon the merits of the petitioner ‘s claim. Consequently there was no question of the order of the Aval Karkun having merged with a subsequent order passed in the said appeal or revision. Thus, the said order of Aval Karkun stands till today. The learned counsel urged that this being the position this Court has to examine whether it could interfere with the said order of the Aval Karkun under Articles 226 and 227 of the Constitution. In this respect, the learned counsel submitted, two aspects would become relevant. First is to find out whether the petitioner was aware of the order when it was passed by the Aval Karkun purportedly in the presence of the petitioner at the time it was delivered by him. The second one was to determine as to whether notwithstanding the contents of the said order the petitioner was aware of its exact nature. With regard to the first aspect it was contended that if the petitioner was aware that his name in the column of “Other Rights” was ordered to be deleted then it was his right to challenge the order in appeal and get it set aside. If the petitioner had a statutory right to appeal and inspite of that had allowed the remedy to lapse the question would arise as to whether this Court had any scope to intervene at the petitioner’s request to set aside the order against which he has failed to appeal. With regard to the second aspect it was urged that if the petitioner was not aware of the nature of the order, whether this Court was justified in interfering to set it aside after such a long period of time of nearly about 5 years, that is to say, from March 1985 to April 1990.
4. According to the learned counsel the Court should address primarily to the question as to whether the impugned order has caused any gross miscarriage of justice. If the answer was in the positive technical rules should be overlooked to enable the Court to correct the injustice done. The learned counsel urged that in this regard it was not required much elaboration to show that the Aval Karkun has totally misdirected himself in passing the impugned order. The scope of the application was to delete the entry of “house” and “cowshed” only. Therefore the order of the Aval Karkun on a wrong assumption that the request made by the respondent, vide his application dated 9-12-1978, was for deletion of the entry on “Other Rights” column could not be sustained. It was also contended by the learned counsel that Aval Karkun used to make a distinction between paddy fields and cashew gardens with regard to the entries regarding the tenancy rights of the concerned parties. According to the learned counsel while in the paddy land such tenancy rights were always recorded in the column reserved to enter the name of tenant in respect of cashew garden such right of tenancy was being recorded in the column reserved to “Other Rights”. The learned counsel has stated that this fact was adverted by this Court in judgment in the case of Shri Winston Pereira v. Shri Rama Gadekar & 4 others, 1989(2) G.L.T. 255. This was a case under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called ‘the Act’) and while dealing with section 2(13) the Court observed that it appears clear that the word “Khoti” is equivalent to a lease, even though the entry is not made in the column reserved for recording the names of lessees, as during the relevant time of making such entry, “cashew groves” were not coming under the purview of the Act.
In this respect the learned counsel vehemently submitted that in the set of circumstances the entry in the “Other Rights” column could not have been corrected or deleted by the Aval Karkun as a declaration of non-tenancy could be entertained only by the Mamlatdar of the Record of Rights. Besides the petitioner’s no objection to delete his name from the “Other Rights” column has to be seen in the context of the respondent ‘s application and the statement of his power of attorney. If no issue had been raised and inspite of that the petitioner ‘s objection had been recorded obviously he could not have been placed in a worse position that in case the respondent had made a specific prayer to delete the petitioner ‘s name in respect of any entry in the “Other Rights” column. The learned counsel has placed reliance in this regard on the case of Dhondi Tukaram v. Dadoo Piraji and others, A.I.R. 1954 Bom. 100. This was a case under the Bombay Tenancy and Agricultural Lands Act, 1948, namely, its sections 70, 85 and 89 wherein the scope of section 89(2) (b) (ii) and section 9 of the C.P.C. on the matter of extraordinary jurisdiction of the Mamlatdar’s courts to decide questions referred to in Section 70 was discussed. The Court observed that sub-sections (a) to (e) of section 70 mention different kinds of questions which it is the duty if the Mamlatdar to decide under the Act. Section 70 (b) makes it the duty of the Mamlatdar to decide whether a person is a tenant or a protected tenant. Thus, it would follow that when an application is made before the Mamlatdar either by the tenant or by the landlord and a question arises as to whether the person in cultivation of the land is a tenant or a protected tenant it is the duty of the Mamlatdar to decide that question. Section 85 shows that the questions which are left for determination of the Mamlatdar under section 70 cannot be tried by a Civil Court. There is, therefore, no doubt that section 70 makes the Mamlatdar the forum of exclusive jurisdiction for the determination of the questions mentioned in the section. Therefore, whenever parties are at issue on the question as to whether a person is a tenant or a protected tenant, the only tribunal that can decide this question is the Mamlatdar and no other. In other words, the Mamlatdar’s jurisdiction to deal with the questions mentioned in section 70 is absolutely exclusive. Hence, the learned counsel submitted, the Aval Karkun could not have deleted the petitioner ‘s name in the column of “Other Rights” with regard to the entry showing the petitioner as tenant or as “on rent”.
5. My attention was drawn to another case of Bhikubai Bhima Gaidhane v. Khondu Daji Pagar, . It was stated that the said decision although not being directly on the point had been cited only for the purpose of showing that the deletion of the entries had to be made in appropriate procedure and by an appropriate forum.
Thus, according to the learned counsel, the order of the Aval Karkun suffers from an error apparent on the face of the record and was passed in excess of jurisdiction. The respondent had never made any prayer for the deletion of the entry in the “Other Rights ” column and the petitioner also never conceded the respondent ‘s right to get his name deleted from the said column. Secondly the order suffers also from error of jurisdiction because the parties by consent cannot confer jurisdiction on the Aval Karkun to entertain application for deletion of entries in the tenants column when the law does not bestow such jurisdiction on him and the right to carry on such change or deletion of entries is vested only on the Mamlatdar. Thirdly the order is in excess of jurisdiction because it grants to the respondent what he has not asked for and did not grant the specific prayer made by him in his application dated 9-12-1978. Fourthly the order is based on a misconception as to the nature of the prayer made by the respondents who have sought for the deletion of the entry regarding the cowshed and house only. Lastly the order is contrary to the principles of natural justice because the petitioner ‘s name was deleted from the entry in the “Other Rights” column without giving him an opportunity to dispute any prayer, if any, made by the respondent in this regard.
6. It was next submitted by the learned counsel that the impugned order is also in total miscarriage of justice as the petitioner could not be said as having understood the exact implication of the respondent’s application. My attention was drawn in this regard to the averments made by the petitioner in para 10 of his pleadings wherein he has stated that the petitioner never bothered about the outcome of the suit case since the matter involved was not significant at all and he was informed by the Aval Karkun that he need not come again to enquire about the said case since appropriate orders would be passed in the matter. This statement of the petitioner is supported by a competent affidavit and against this there is the record of the Aval Karkun’s Court showing that the impugned order was passed by him on the same day in the presence of the parties including the petitioner. The learned counsel urged that even if we have to believe the record of the Court still the petitioner was insisting that he was not in a position to understand the scope of the order because “cowshed” and “house” had no significance or meaning for him and he was concerned only with the cashew trees existing in the Survey No. 62/4. Therefore by the time he came to know about what the Aval Karkun had done the appeal period was over and the petitioner was left with no remedy. In this context the only remedy available for him was either to file suit in the Civil Court or a writ petition in this Court under Article 226 of the Constitution.
7. The learned counsel relied on this point in the case of Husein Miya Dosumiya v. Chandubhai Jethabhai and another, . That was a case under Bombay Tenancy and Agricultural Lands Act, 1948, namely, its sections 86(1) (2), 29(1), 70 and 71 where the landlord was put in possession of land by order of Mamlatdar. The tenant filed an application under section 29(1) and he was granted possession. The landlord filed a suit in the Civil Court alleging that the order of the Mamlatdar was ultra vires. While dealing with the question of maintainability and bar of section 85(2) the Court held that the fact that a statute provides for a right of appeal against an order made by an authority set up under that statute does not make any difference to the position when the order made by the authority is an invalid or ultra vires order. If the order itself is ultra vires it is a nullity and there is no obligation upon a party against whom the order is made to prefer an appeal against that order. The appeals that are provided for under section 74 are strictly appeals against valid orders made by the Mamlatdar and orders made with jurisdiction. Merely because a statute provides for a right of appeal, the party against whom the order is made is not bound to appeal although the order made is a nullity. If the order is a nullity the party is entitled to ignore it to treat it as waste paper and to go to a Civil Court for a declaration that the order is a nullity and no action should be taken against the party under that order which would prejudice his rights.
It was contended by the learned counsel that the impugned order was an order which was a nullity and was causing immense prejudice to him being also in his disadvantage and giving rise to litigation against him. It was further stated that the order was without jurisdiction being also contrary to the principles of natural justice.
8. My attention was also drawn to the case of Ravi S. Naik v. Union of India and others, wherein the Supreme Court while dealing with the point of natural justice held that the principles of natural justice are flexible and not rigid and its violation amounts to jurisdictional error.
9. In order to appreciate the submissions of the learned counsel what is important to bear in mind is the fact that the challenge in this petition appears to be solely against the order dated 13-3-1985 of the Aval Karkun. Thus, the main point to be considered at the very outset is whether on the date the petition was filed this order was subsisting and was still in existence. The second point was to assess what would be the legal implications of the appeals or revisions filed by the petitioner, rightly or wrongly, against the said order.
The record of the proceedings before the Courts below shows that after the order was passed by the Aval Karkun the petitioner only on 28-1-1987 filed a review application along with an application for condonation of delay before Aval Karkun on the ground that he came to know about the order only then. At this stage the Record of Rights had been already promulgated and as a result the Mamlatdar had ceased to have jurisdiction to deal with the matter. Accordingly the Mamlatdar informed the petitioner about his inability to entertain the review application. When the petitioner filed the review it was alleged by him in his application for condonation that it was in the month of June, 1987 that one Borkar from Chorao informed him that his name had been deleted from the survey records and hence he applied for a copy of Form I & XIV of Survey No. 62/4 of Chorao village and he came to know that his name had been deleted from the survey records. No affidavit of the petitioner nor of the said Borkar was annexed by the said petitioner along with the application. Thereupon after the review application was rejected no challenge was also made by the petitioner against the order of the Mamlatdar to entertain the review application for want of jurisdiction. This means that the petitioner accepted for all purposes that the Mamlatdar of Record of Rights, that is to say, the Survey Authority had no jurisdiction to entertain the review application. Subsequently the petitioner filed an appeal before the Deputy Collector and at that time no application for condonation of the delay was presented. Perhaps the petitioner thought that this appeal was within time. The respondents then raised a preliminary objection before the Deputy Collector alleging that the appeal was time barred, that is to say, beyond the period of 60 days provided in section 189 of the Land Revenue Code. This objection was overruled by the Deputy Collector and the respondent moved the Additional Collector in revision against the order of the Deputy Collector who, by his order dated 12th July, 1982, set aside the judgment of the Deputy Collector holding the appeal of the petitioner within time. The petitioner then filed an appeal before the Administrative Tribunal which was subsequently withdrawn. This means that the order dated 30-3-1985 and the letter of the Mamlatdar communicating the inability to entertain the application was not challenged.
10. Mrs. Agni, learned counsel for the respondents, has contended that since the order dated 13-3-1985 had merged with the order of the Additional Collector dated 12-7-1989 and the same is no more in existence, therefore, the only order which could have been challenged is the order of the Additional Collector which although was impugned before the Administrative Tribunal the appeal filed was withdrawn. Hence according to the learned counsel there remains no challenge available in respect of the order dated 13-3-1985. However, this petition was filed only against the said original order without any challenge raised against the subsequent order of the Additional Collector dated 12-7-1989.
11. The submission of Mrs. Agni appears to be correct and deserves acceptance. In the case of Sheodan Singh v. Daryao Kunwar, relied by the learned counsel while dealing with the point of res judicata under section 11 of the Civil Procedure Code in case of two suits having common issues by the trial Court on merits and two appeals one of them dismissed on the ground of limitation or default in printing, the Court held that where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground like limitation or default in printing with the result that the trial Court’s decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits and if that is so the decision of the appeal Court will be res judicata.
Thus even if the challenge or the decision of the appeal Court has not been given on merits the merger of the impugned order appears to operate. It seems therefore that applying the ratio of this decision to the instant case, the order of the Aval Karkun dated 13-3-1985 is deemed to have been merged with the order of the Additional Collector dated 12-7-1989 and without challenging this order the petitioner was not to be allowed to challenge the order of the Aval Karkun as no challenge against such order dated 13-3-1985 would lie.
12. Besides, as learned Mrs. Agni pointed out, the scheme of the Land Revenue Code, 1968 provides in section 158 for the right to appeal from every original order other than the interim order passed under the Code. Section 189 deals with the limitation of appeals. Section 192 enables the aggrieved parties to go on revision against orders passed against them while section 193 provides for review of such orders. Therefore, if the impugned order of the Aval Karkun was inaccurate or wrong in its formulation or conclusion the remedy for the petitioner was to go on review against the said order in time. The learned counsel has taken me through Rules 6 and 7 of the Land Revenue Code Rules, 1969 and urged that these Rules clearly proclaim that the Aval Karkun has jurisdiction and powers upon admission of an erroneous entry by the parties to delete the same during the period prescribed in the aforesaid Rules. Thus there was no question of the petitioner challenging the jurisdiction of the Aval Karkun to delete the disputed entries at the stage of the preparation of the Index of Land.
Further the learned counsel stated that he had filed the suit referred to by him against the respondents only two or three years after the impugned deletion made by the Aval Karkun on 13-3-1985, that is to say, in the year 1988 and hence there was no question of his having taken advantage of that deletion as contended by the petitioner.
13. There seems to be a lot of substance in the submissions of the respondent’s learned counsel in this regard. If, as conceded by Mr. Lotlikar, besides moving a writ Court after the promulgation of the Record of Rights the Civil Courts are to be normally approached to correct whatever wrong entries had been shown in the record, the petitioner could very well claim in competent proceedings to be the tenant and that issue could be decided by the concerned Mamlatdar after the said issue was referred to him by the Court for that specific purpose. In the alternative the petitioner could go also to the Mamlatdar straightaway and obtain a declaration of his tenancy under section 7 of the Act and then approach the Civil Court for an order directing the insertion of the concerned entry as tenant in the promulgated Record of Rights. Needless to say that the writ jurisdiction is to be exercised by the Courts only in favour of parties which really need such intervention under its extraordinary or supervisory powers in terms of Articles 226 and 227 of the Constitution. In this case, as rightly pointed out by Mrs. Agni, the petitioner had a number of appropriate remedies which have not been availed of and on the contrary he has attempted to untimely take resort to remedies to which he was not entitled beyond the prescribed period of time. Besides there appears also to exist serious and disputed questions of fact in the present case which the earlier Courts were not able to decide while exercising writ jurisdiction.
14. On the other hand Mrs. Agni is also justified in disputing the learned petitioner’s counsel’s proposition that the entries in the column of “Other Rights ” in respect of lands which are not paddy fields are equated with the entries on tenancy rights in respect of paddy land. According to the learned counsel the entries in the “Other Rights” column are not to be treated as showing any tenancy status of a person. At the highest it may suggest that the petitioner had a right to pluck or enjoy the fruits of the concerned cashew trees and had nothing to do with the land wherein the trees were located.
15. Indeed it appears to be so. A bare perusal of Form III of the Index of Land in respect of “Other Rights” column indicates that the column is meant for recording entries regarding rights held by persons other than occupants or tenants. Hence the entry in that column “cashew trees on rent to the petitioner” could not be equated to any rights of tenancy acknowledged by the respondents. Therefore, the said entry in this column would only refer to rights which are not rights of a tenant and tenancy rights must be thus inserted in the appropriate column specially reserved for that purpose. The learned respondents’s counsel has taken me also through the definition of the words “landlord”, “lease” and “rent” in the Act. “Landlord” is defined in section 2(12) as a person from whom a tenant holds land on lease. Thus, if the alleged tenant holds only trees there cannot be landlord. Hence even if the entry is conceded by the petitioner the respondent could not be said to be the landlord in respect of those trees within the meaning of section 2(12) of the Act. “Lease” is also defined under section 2(13) and means a transfer of a right to enjoy land, made orally or in writing, for a specified, or unspecified period, and in consideration of rent. Emphasis in this definition is on land also. Therefore, enjoyment of fruits of the trees by the petitioner could not be said to be a ‘lease’ within the meaning of the Act. Similarly “rent” appears to be defined in section 2(20) and here also the emphasis lies on the land. ‘Rent’ in terms of the definition means any consideration in money or kind or both, paid or payable by a tenant on account of the use or occupation of the land held by him but shall not include the rendering of any personal service or labour.
Therefore, the learned counsel submitted, the word “rent” used in the entry favouring the petitioner in the “Other Rights” column of the original Index of Land could mean only price or fee payable by the petitioner to the respondent for the enjoyment of the fruits of the cashew trees. The learned counsel has also invited my attention to the definition of “tenant” in section 2(23) which means a person who holds land on lease and cultivates it personally. Therefore, according to the learned counsel, the petitioner who allegedly had a right to enjoy or pluck the fruits of the cashew trees could not be said to be the tenant in respect of those cashew trees within the meaning of section 2(23) of the Act.
16. On the other hand Mrs. Agni disputed the proposition sought to be advanced by the learned petitioner’s counsel that since the Act was applicable only to paddy fields tenancy rights of any tenant were shown in the appropriate column of the Record of Rights only in respect of paddy land. It was contended in this regard that the Act came into force on 8-2-1965 and after the extension of the Act and before the 1976 amended Act came into force there was one more Act which was applied and this was the Act of 1971 covering cashew and areca groves which was to last for a period of six years. The said Act was enacted to be in force from 2-10-1971. In that Act there was reference to the date of 11th July, 1969 as being the date from which the tenant’s rights in respect of cashew and areca groves were deemed to have been safeguarded. The Act received the assent of the President on 2-7-1971 and thereafter published. That means that as on 11-7-1969 the rights of the persons holding tenancy of cashew gardens were fully recognized. The petitioner could claim in respect of cashew trees existing in Survey No. 62/4, his alleged right of tenancy, if any, regarding the said trees. The Land Revenue Code and Rules were in force in this territory on 1-3-1971. Being so the petitioner’s right of tenancy on the cashew trees was to be reflected in the column of “tenant” in Survey No. 62/4 because on the day when entries were made the 1971 Act concerning cashew groves was very much available for the petitioner. Thus, Mrs. Agni says if the premises advanced by the petitioner ‘s learned counsel is false obviously the conclusion arrived at by him on the basis of such premises is also wrong.
17. There is indeed considerable merit in the submissions of the learned respondents counsel. Once it was held above that the column “Other Rights” cannot be meant to record entries concerning tenancy rights, it is obvious that in view of the provisions of the 1971 Act protecting the rights of the holders of the cashew gardens which was very much in force during the relevant period whatever rights which the petitioner might have claimed on the trees purportedly held by him “on rent” on the basis of the deleted entry had to be necessarily recorded or entered by the Land Revenue Authorities in the appropriate column reserved to record the names of the tenants only. Hence the argument sought to be advanced by the learned Shri Lotlikar on the contrary seems to be impermissible and is to be discarded.
18. I am also with the respondent’s learned counsel that the decision in Winston Pereira’s case, 1989(2) G.L.T. 255 appears to be clearly distinguishable and that the judgment seems to be as per incuriam not only because it was given on concession, but also the 1971 Act as well as the judgment of Kamat. J. holding a different view had not been considered by the learned Judge. Indeed the judgment is to be deemed as per incuriam because admittedly it does not deal with the 1971 Tenancy Act. From the reading of this judgment, namely its para 7, it is manifest that the same had not considered the definition of “lease” as provided in the Act, and admittedly the entry in the Index of Land in respect of the Survey No. 62/4, insofar it refers to cashews on rent, cannot be said to refer to any trees held by the petitioner on lease basis as lease is admissible under the Act only in respect of land. The said judgment also shows that at the relevant time cashew groves were not covered by the Tenancy Act differently from what happens in the instant case. Therefore, the ratio of that judgment cannot be applied in the case in question.
19. Now and with regard to the case of Husein Miya Dosumiya, . We have already seen that the entry on the “Other Rights” column cannot be equated to entry concerning tenancy. This judgment deals directly with an entry of tenancy. We have held that in the Goa Act tenant can only exist in respect of land and the entry deleted does not manifestly concern with land but only with trees purportedly on rent to the petitioner. Being so this decision does not appear also to be attracted so much so it deals with a case where the parties were at issue on the question of tenancy only. With this regard it may be borne in mind that jurisdiction of the Mamlatdar to adjudicate questions of tenancy arises under section 7 only if one qualifies to be a tenant under the Act. The entry in question in the “Other Rights” column does not appear to be prima facie sufficient to hold that the petitioner is entitled to claim the status of tenant with regard to the cashew trees said to be on rent with the petitioner. Besides in the instant case the parties cannot be said to be in issue. On the contrary there is purportedly an admission made by the petitioner that entry in “Other Rights” column may be deleted although the said admission seems to have been qualified by him on the ground that at the time his statement was recorded there was no structure held by him in the concerned land.
20. Mrs. Agni’s contention that the authority cited by Mr. Lotlikar in the aforesaid case of Husein Miya Dosumiya is no more a good law in view of the judgment relied by her in the case of State of Punjab and others v. Gurdev Singh, does not appear to be well conceived. Indeed in the aforesaid judgment relied by Mrs. Agni the Supreme Court has held that a void, inoperative and ultra vires order has always ade facto operation unless and until it is declared to be void or nullity by a competent body or Court. Thus, if an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon it. Therefore, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. However, this ruling is not at all inconsistent with the decision earlier cited in wherein the Court held that merely because a statute provides for a right of appeal the party against whom the order is made is not bound to appeal although the order made is nullity because order being a nullity the party is entitled to ignore it and to treat it as waste paper. However, the Court has also adverted that in that case the party has the option to go to a Civil Court for a declaration that the order is a nullity and no order is to be taken against the party under that order which prejudiced his right. This being the position it is clear that the submission of Mrs. Agni that the aforesaid Bombay judgment is no more laying a good law is unacceptable and thus to be rejected.
21. Now and with regard to the respondent’s mother’s application dated 9-12-1978 it was submitted by Mrs. Agni that the respondent approached the Court of Aval Karkun firstly seeking the cancellation of the entry regarding the cowshed and the house but in the course of the enquiry it was pointed out that a wrong entry with regard to cashew trees was also recorded in the Survey No. 62/4 which entry on admission of the petitioner himself he got it deleted. It was urged that error of jurisdiction committed by the Aval Karkun in his order dated 13-3-1985, if any, could occur if the petitioner after having expressly stated that he had no objection for deletion of the entry regarding cowshed and house only the said Aval Karkun had straightaway ordered the deletion of the entry on the “Other Rights” column. I am again inclined to agree with the learned counsel on this point also. Indeed the statement of the petitioner before the Aval Karkun shows that he had stated that after reading over the contents of the respondent ‘s application and also his attorney’s say given on the same date he had said in so many words that he had no objection to delete his name from “Other Rights” column from Survey No. 62/4 although he clarified that at the relevant time there was no structure held by him in the said survey. Further it is seen from the records of the proceedings of the Aval Karkun which were perused by me that although the application made on behalf of the petitioner by his mother refers to the entry regarding cowshed and house which is sought to be deleted, however, the notice issued under Rule 6(3) clearly mentions that the objection raised by the respondent is with regard to the “deletion of name” and therefore, the enquiry was to be held in this connection. This very fact indicates that the petitioner could not claim any ignorance as to the nature of the objection and the scope of the enquiry to which he had been asked to participate for the purpose of adjudicating the respondents’s claim in respect of deletion of the entry in respect of the land.
Besides, it is also difficult to accede to Mr. Lotlikar’s contention that there has been a violation of the principles of natural justice in the case. Admittedly the petitioner was heard in an enquiry held by the Aval Karkun on the application moved by the respondent after the notice was given to him on the point of “deletion of his name from the survey No. 62/4”. This being the case one cannot prima facie rule out that in the given circumstances the petitioner could have voluntarily offered to agree with the deletion of the said entry from the survey records. There is nothing in evidence to suggest that while giving his statement before the Aval Karkun he has done it under force, coercion or misrepresentation. It is not also the petitioner’s claim that he was pressurized by the respondent to give his statement to the effect that the entry of his name in the “Other Rights” column might be deleted from Survey No. 62/4. Further even after the statement given by him there was a stage open to the petitioner to correct any wrong and undue admission or concession purportedly made by him so as to get the entry deleted before the promulgation of the Record of Rights. The petitioner has not been able to satisfy the Court why he did not avail of this opportunity. It is true that he has alleged that he was totally ignorant about the implications of his statement or even with regard to the order passed by the Aval Karkun on the respondent ‘s application. He has stated that he came to know about the order of the deletion of the entry on the “Other Rights” column through one Borkar who informed him about this deletion, the said Borkar being the owner of the adjacent land. At no time the petitioner has made any attempt to throw light on the identity of the said Borkar or produce any affidavit sworn by him explaining the circumstances under which Borkar learnt about the deletion of the petitioner ‘s name from the survey records. Besides the statement recorded by the Aval Karkun shows that the same was explained and read to the petitioner in Konkani and was admitted by him to be correct. This being the position, in my judgment, it is to be held that in the circumstances there seems to have been substantial compliance with the principles of natural justice in this case and hence the argument of the petitioner’s learned counsel in this regard is bound to be negativated.
To be noted also that in the present case the petitioner had two remedies available to seek redress to his grievances, namely, (1) to go straight to the Civil Court and seek correction of the record or (2) to go first to the Mamlatdar to get a declaration from him regarding his tenancy and then approach Civil Court asking for insertion of the required entry in the Record of Rights. Mrs. Agni has made a strong grievance and rightly that even at this stage the petitioner has not been able to give any particulars with regard to his alleged tenancy in respect of the cashew trees which are said to be on rent with him in Survey No. 62/4. It was submitted by the learned counsel that the petitioner did not disclose to this Court at least when and how his tenancy began and in what manner the petitioner acted as tenant of the respondent in respect of those trees. The contention is that a plea of tenancy cannot be based on mere vague allegations.
22. It was last submitted by Mrs. Agni that the petition suffers also from the vice of delay and laches. Admittedly the impugned order was passed by the Aval Karkun on 13-3-1985 and the petition was filed only in the year 1990, i.e. after a lapse of about 5 years. It was submitted that the rights crystallized in favour of the respondent with the promulgation of the Record of Rights with regard to Survey No. 62/4 should not be interfered with and unsettled by the Court at this stage in respect of an order passed by the Aval Karkun on the basis of the admission on the part of the petitioner so much so only technical pleas were raised by him in this petition. The learned counsel placed reliance in this regard in the cases of Ratan Chandra Sammanta and others v. Union of India and others, , State of M.P. and others etc. v. Nandlal Jaiswal and others etc, and Abhinavodhanda Vidya Sankarabharati v. Poonapati Ramayogi Reddi and others , to show that delay which is not justified by itself extinguishes and defeats any right to which a person may be entitled.
23. I do not think that this point merits any special elaboration or detailed consideration on the part of this Court. Suffice is to say that in the facts and circumstances of this case once remedies are still available to the petitioner the impugned order of the Aval Karkun which became final after the promulgation of the Record of Rights need not be disturbed even assuming that it may be a wrong order so much so there seems to be also disputed questions of fact which require to be adjudicated on the issues raised by the petitioner and which cannot be entertained by this writ Court in the exercise of its extraordinary or supervisory jurisdiction under Articles 226 and 227 of the Constitution.
Besides the presumption of the correctness of the proceedings before the Aval Karkun suggests that the statement and findings given by him are to be treated as genuine expression of the facts occured before him and reflecting the real say of the parties which only in the competent judicial forum are able to be unsettled inasmuch as the impugned order is shown as having been pronounced by the Aval Karkun in the presence of the parties including the petitioner.
24. In the result I see no merits in this petition and the same deserves to be rejected. Hence the petition stands dismissed. The order of the Aval Karkun dated 13-3-1985 is hereby upheld. Rule accordingly discharged with however no order as to costs.