Vijayanand Kankonkar and Anr., v. State of Goa, Thr. Chief Secretary and 3 Ors.

Bombay HC12 Jul 2021WPCR/53/2020

Case brief

AI extract

What is this about?

Petitioners challenged orders by the Deputy Collector/SDM permitting villagers to immerse idols in a private water body. The Court held the authority had no jurisdiction as they relied on neither Section 133 nor 145 Cr.P.C. nor other statutes, and that the civil dispute regarding ownership must be decided by the Civil Court.

What did the court decide?

The impugned judgment and order dated 27.02.2020 were set aside. The Rule was made absolute. Civil Court directives were issued.

Vijayanand Kankonkar and Anr., Vs State… — Constitutional and Fundamental Rights | Bombay HC (2021)

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1 WPCR53-2020

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL WRIT PETITION NO.53 OF 2020

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1. Mr. Vijayanand Kankonkar,
s/o late Popatlal G. Kankonkar,
38 years of age,
And his brother

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2. Mr. Alok Kankonkar,
s/o late Popatlal G. Kankonkar,
33 years of age,

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Both residing at C-3, 2nd Floor,
Seagull Apartments,
Near Panjim Market,
Panaji, Goa....Petitioners

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 Versus

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1. State of Goa,
Through Chief Secretary,
Secretariat,
Alto Porvorim, Bardez, Goa.

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2. The Deputy Collector & SDM,
Panaji, Goa,
Having office near Ferry Wharf,
Panaji, Goa,
Presently presided over
By Mr. Vivek H.P.

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3. Rama Krishna Kankonkar
Son of late Krishna Ganesh Kankonkar
54 years old, Businessman,
Residing at House No.11,
Chimbel Gawant,

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2 WPCR53-2020

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Ward No. 11, Chimbel, Ilhas, Goa.

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4. Shashikala Krishna Kankonkar
Alias Xexicala Crisna Canconcar
w/o late Saba Nilu Kerkar,
age 63 years,
D2, Kadamba Apartments,
Dr. A. B. Road,
...
Panaji, Goa.Respondents

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 AND
Mr. Demu Shirodkar
Son of late Deu Shirodkar
72 years of age, Farmer,
Residing at House No.47,
Gawanth, Chimbel, Tiswadi-Goa
for himself as Villager of ward 'Gawanth'
and representing a Group of Villagers of
ward 'Gawanth' in the Village Chimbel
(Morombi-O-Grande), who are interested
in asserting a claim to access to
Suit Property for the purpose of
immersion of Ganesh and during
other religious activities.…Intervenor

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Mr. S. D. Lotlikar, Senior Advocate with Mr. Myron Menezes D'Souza,
Advocate for the Petitioners.

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Mr. Pravin Faldessai, Additional Public Prosecutor for Respondent Nos.
1 and 2.
Mr. Sanman Keny, Advocate for Respondent Nos. 3 and 4.
Mr. S. Arabekar, Advocate for Respondent No.5-Intervenor.

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Coram:- M. S. SONAK &

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 SMT. M. S. JAWALKAR, JJ.
Date:- 12th July 2021

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3 WPCR53-2020 ORAL JUDGMENT( Per M. S. Sonak, J)

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 Heard Mr. S. D. Lotlikar, learned Senior Advocate along
with Mr. Myron Menezes D'Souza for the Petitioners, Mr. P. Faldessai,
learned Additional Public Prosecutor for Respondent Nos.1 and 2,
Mr. Sanman Keny, learned counsel for Respondent Nos. 3 and 4 and
Mr. S. Arabekar, learned counsel for Respondent No.5.

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2Rule. The rule is made returnable forthwith at the request
and with the consent of the learned counsel for the parties.

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3This petition was initially instituted to question the
proceedings commenced by notice No. SDM/TIS/MISC/Chimbel/
2020/648 dated 24.02.2020 issued by the Deputy Collector and SDM,
Panaji Goa ( Respondent No.2). Thereafter, the petition was amended
to seek quashing and setting aside of the judgment and order dated
27.02.2020 made by Respondent No.2 in the said proceedings.

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4. The Petitioners claim to be owners of the property bearing
Survey No.192/1, Chimbel, Tiswadi Goa ( the said property ). The
Petitioners claim that there is a private water body belonging to the
Petitioners situated in the said property, to which, none of the
Respondents or for that matter the villagers of Chimbel have any right.
The Petitioners claim that despite this, Respondent No.2 for the last
three years, has been initiating proceedings to facilitate the villagers like
Respondent No.5 to use the said private water body for immersion of

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4 WPCR53-2020

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idols of Ganesh and Saraswati.

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5.Mr. Lotlikar, learned Senior Advocate appearing for the
Petitioners submits that the proceedings initiated by the Respondent
No.2 are without any authority of law particularly because the
Petitioners have already instituted Regular Civil Suit No. 18/2020 in
the Court of the Civil Judge Junior Division, Panaji and this Civil
Court is seisin of the matter. Mr. Lotlikar submits that on one occasion
having regard to the fury of the mob, the Petitioners were constrained
to consent to the immersion before the Respondent No.2 because the
Respondent No.2 made a specific order that thereafter, the parties, will
have to sort out their disputes before the Civil Court. Mr. Lotlikar
submits that on the next two occasions though there was no consent
from the Petitioners, Respondent No.2 initiated proceedings only to
permit the villagers to immerse idols in the private water body
belonging to the Petitioners.

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6. Mr. Lotlikar submits that in the affidavit now filed by
Respondent No.2, he has admitted that such proceedings were not
under any provisions of law but the orders were made on account of
consensus arrived at between the parties. Mr. Lotlikar submits that
there was no consensus arrived at and in any case, even the consent of
the parties cannot confer jurisdiction upon Respondent No.2 in such
matters. Mr. Lotlikar, therefore, submits that the impugned order dated
27.02.2020 may be set aside and the parties may be relegated to the

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5 WPCR53-2020

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Civil Court for sorting out their civil disputes in accord with the law.

¶30

7.Mr. Faldessai, learned Additional Public Prosecutor submits
that there were no malafides involved in the action of Respondent No.2.
He submits that Respondent No.2 had to intervene as otherwise, the
law and order situation was likely to develop. He submits that the
orders were made based on the consensus which was arrived at before
Respondent No.2. He, therefore, submits that this petition may be
dismissed but the disputes between the Petitioners and the villagers
should be sorted out before the Civil Court in the future.

¶31

8.Mr. Arabekar submits that the orders were made based on
the consensus. He submits that even now the Civil Court has made
orders favorable to the villagers. He submits that on merits the villagers
have every right to undertake immersion in the water body which is not
a private water body of the Petitioners.

¶32

9.Mr. Keny submits that Respondent Nos. 3 and 4 also have
a right to the said property. He submits that Respondent Nos. 3 and 4
have no objection if the villagers undertake immersion in the water
body. He submits that Respondent No.2 assumed jurisdiction and
made orders based on the consensus arrived at between the parties. He
submits that any interference with the impugned order ought not to
affect the proceedings before the Civil Court. He, therefore, submits
that this petition may be dismissed.

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6 WPCR53-2020

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10.

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The rival contentions now fall for our determination.

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11.In this case, on 28.02.2020, we made the following order:-

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“We post this matter for further consideration on
09.03.2020.

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2. The respondent no.2 to explain the nature of
jurisdiction exercised by him in making the
impugned order dated 27.02.2020.

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3. By our order made yesterday, we had declined
any ad interim relief in this matter. However, we are till
date, not clear as to the nature of jurisdiction which is
sought to be exercised by the Deputy Collector and SDM
in this matter. Therefore, the fact that we have declined
interim relief must not be construed as some sort of a
approval of the view taken by the Deputy Collector
and SDM in the impugned order.

¶40

4. The reason why we have declined interim relief is
because on one previous occasion, the petitioners
had themselves consented to the festivities being
performed in the water body in the property claimed by
the petitioners and on the second occasion, a similar
order was challenged but the petition was withdrawn.
Thirdly, we find that the impugned order permits the
villagers to only access the pond/water body during
the zatra which is scheduled today and tomorrow.
Besides, there are directions to the villagers to conduct
the rituals in a peaceful manner without causing
damage to crops and property, not to burn the fire
crackers inside the said landed property and not to
litter the space.

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5. In fact, Mr. Lotlikar, without prejudice to the
contentions in the petition, states that the petitioners,

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7 WPCR53-2020

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on this occasion, will allow the villagers to access the
water body. He however requests that police may be
posted at the site so as to ensure that the villagers do not
cause damage to the crops and property or light fire
crackers inside the property.

¶44

6. According to us, the request made by Mr. Lotlikar is
quite reasonable in the circumstances of the case and
therefore, we direct the presence of police personnel to
ensure that there is no damage to the crops and property
or lighting of fire crackers. Mr. Lotlikar clarifies that
this concession which is made today may not be
construed against the petitioners on future occasions. This
is clarified and this concession which is made is not
to be taken into account on future occasions.

¶45

7. We understand that the petitioners have
already instituted Regular Civil Suit No.18 of 2020
before the Court of the Civil Judge, Junior Division at
Panaji. In such Civil Suit, leave is applied for to sue
the villagers in the representative capacity. Such leave
has already been granted. Mr. Lotlikar states that even
an application for injunction has been taken out in the said
Suit, in which, notices have been issued to the villagers.

¶46

8. According to us, the issues relating to the
rights of the villagers to access the water body if any, can
be best sorted out in such a Civil Suit. Accordingly, we
direct that the application for injunction taken out by
the petitioners in the said Civil Suit be disposed of as
expeditiously as possible and in any case within a period of
two months from today.

¶47

9. The learned Advocate General states that the
petitioners have no rights to the property in question. Same
is the contention of the learned counsel for the intervenors.
All these matters are really not required to be gone into
in this petition, particularly, since, a Civil Suit has already

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8 WPCR53-2020 been instituted.

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10. Stand over to 09.03.2020.”

¶50

12.Thereafter, on 09.03.2020, we had directed Respondent
No.2 to file an affidavit in this matter explaining the nature of
jurisdiction exercised by him while making the impugned order.

¶51

13.Mr. Vivek H. P. (IAS), the Deputy Collector and SDM,
Tiswadi Taluka has filed an affidavit in this matter. In the affidavit, the
officer has denied the allegations of threats and coercion and has
submitted that his interference was only to persuade the parties to arrive
at a consensus so that the disputes which tended to breach peace are
settled amicably. In his affidavit, he has admitted that the proceedings
initiated by him were neither under Section 133 of the Criminal
Procedure Code nor Section 145 of the Criminal Procedure Code. The
officer has stated that the orders were issued only when both the parties
arrived at some consensus and requested written direction to avoid
confusion. The officer has maintained that there was no scope for being
aggrieved by the said orders since the orders were based on a mutually
arrived agreement between the parties.

¶52

14.The aforesaid explanation is to be found in paragraphs 19
and 20 of the affidavit of Respondent No.2 filed on 01.07.2021, which
read as follows:-

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“19.It is respectfully submitted that this Respondent never had the intention to threaten anybody by any force

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9 WPCR53-2020

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to come to an agreement but only to persuade concerned
parties to arrive at consensus and ensure the dispute be
settled amicably. It is further submitted that on all the
occasions sighted above, there were neither instances
reported under section 133 Cr.P.C. nor anybody claimed
possession under Section 145 hence this Respondent could
not pass the order expressly under these relevant provisions
by following due procedure. It is submitted that even
though, this Respondent felt that there was no need to pass
orders in all instances narrated above, it is pertinent to
mention that orders have been issued only when both the
parties arrived at a conclusion and requested for a written
direction to both the parties to avoid confusion if any.
Thus it is submitted that these orders were issued only to
ensure peace is maintained in the locality and not to harm
anybody's interest whatsoever.

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20. It is further submitted that the orders were issued
only when consensus arrived and the directions was for
both the parties. There was no scope for being aggrieved by
the said order since it was a mutually arrived agreement by
the parties."

¶57

15.The aforesaid means that there is no clarity as to the
statutory provisions under which Respondent No.2 assumed
jurisdiction and made the impugned order. Respondent No.2 claims
that the impugned orders were made only based on consensus arrived at
between the parties. Now there is a serious dispute between the parties
on this aspect of so-called consensus. The record at least prima facie
indicates that when Respondent No.2 made his first order dated
30.08.2019, the Petitioners, without prejudice to their rights and
contentions on merits, consented to its making. Mr. Lotlikar submitted

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10 WPCR53-2020 that this concession was only to avoid precipitating the matter and was based on the assurance of Respondent No.2 that at least thereafter the villagers would approach the Civil Court to claim their rights over the use of the water body in their property.

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16.Now if the first order dated 30.08.2019 is perused then,
there is good reason to accept the statement made by Mr. Lotlikar. This
is because the order dated 30.08.2019, after issuing specific directions as
to the course of conduct to be adopted by the parties on 15.09.2019,
made the following specific observations “ After the said date, the
villagers have advised to approach the appropriate forum to claim the
rights over the use of the said water body”.

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17.Despite the aforesaid, it appears that the villagers did not
institute any proceedings before the Civil Court in support of their
rights to immerse idols in the water body nor did the Petitioners
institute any proceedings before the Civil Court to injunct the villagers
from doing so. Instead on 07.10.2019, Respondent No.2 once again
made an order directing the Petitioners to keep the access to the said
water body in the said property open to enable the public to immerse
Devi Saraswati idol on 08.10.2019. Even the Police Inspector of Old
Goa Police Station was directed to provide security. The Mamlatdar of
Tiswadi was also directed to ensure the immersion takes place without
any damage to the said property. Now, this second order dated
07.10.2019 does not refer to any consensus or consent.

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11 WPCR53-2020 18. The Petitioners, then filed Regular Civil Suit

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No.18/2020/C before the Civil Court some time in February 2020.
Despite the pendency of this suit, Respondent No.2 issued notice dated
24.02.2020 again to facilitate the members of the public to immerse
idols in the water body of the said property. It is in pursuance of such a
notice, the Respondent No.2 made the impugned judgment and order
dated 27.02.2020, again directing the Petitioners to open the gates of
the field in survey No.192/1 in which the water body is situated during
the Jatra of Devi Sateri scheduled on 28th and 29th February 2020 and
to restore the water body to its original condition. The villagers were
also advised to conduct rituals peacefully without causing damage to the
crops and property and not to burn the firecrackers inside the landed
property and not to litter the space.

¶63

19.Again, this order dated 27.02.2020 also does not indicate
that the same was based on any consensus arrived at between the
parties. The theory of consensus finds no force in the material on record
particularly when it comes to the order dated 07.10.2019 and the
impugned order dated 27.02.2020. In any case, Respondent No.2, has
to exercise powers as may have been conferred upon him by any
provisions of law. Based upon the alleged consensus, it is not open for a
Deputy Collector or SDM to interfere with a purely civil dispute
between the parties, more so when the parties are already before the
Civil Court agitating their civil right. No amount of consent can confer
jurisdiction upon an authority where such jurisdiction is found to be

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12 WPCR53-2020

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lacking. Respondent No.2 in his affidavit has clearly stated that he was
not exercising any powers under Section 133 or Section 145 of the
Criminal Procedure Code. Respondent No.2 has also not referred to
any other provisions of law to which the proceedings initiated by him
relate to. Therefore, even if we do not go into the disputed contentions
between the private parties or go into the disputed contentions of
consensus still, we are satisfied that the Respondent No.2, in the facts of
the present case, could not have assumed jurisdiction to resolve a purely
private civil dispute between the parties.

¶66

20.On the aforesaid short ground, the impugned judgment
and order dated 27.02.2020 required to be set aside and is hereby set
aside.

¶67

21.However, setting aside the impugned order dated
27.02.2020 should not impact, even in the slightest, any decision on
the merits of the dispute which is presently being agitated before the
Civil Court either at the interim stage or final stage. The impugned
order of the Respondent No.2 is now set aside, not by adjudicating the
rival contentions of the parties on merits but only because Respondent
No.2 was unable to point out the nature of jurisdiction that was
exercised by him. Therefore, it is made clear that merely because the
impugned judgment and order is now being set aside that is not a factor
which the Civil Court should consider one way or the other while
deciding the civil dispute between the parties. The civil dispute will

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13 WPCR53-2020

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have to be decided on their own merits and in accord with law based on
the evidence which the parties place before the Court.

¶70

22.The parties naturally will have to abide by the orders which
the Civil Court shall make in the matter. If any of the parties have any
disputes on the issue of either ownership of the said property or rights
to the water body therein or any such dispute, then, it is the Civil Court
that is the appropriate forum for the resolution of such dispute. Now
that the parties are already before the Civil Court, it is only appropriate
that the Civil Court adjudicates such dispute on their own merits and
in accord with the law.

¶71

23.The Rule in this petition is made absolute to the aforesaid
extent. There shall be no order as to costs.

¶72

SMT. M.S. JAWALKAR, J. M.S. SONAK, J.

¶73

at*

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TARI AMRUT NAGESH Digitally signed by TARI AMRUT NAGESH Date: 2021.07.15 12:54:20 +05'30'

Vijayanand Kankonkar and Anr., v. State of Goa, Thr. Chief Secretary and 3 Ors.

Case brief

What is this about?

What did the court decide?

Vijayanand Kankonkar and Anr., v. State of Goa, Thr. Chief Secretary and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Coram

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