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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Couto G.F. (Dr.), J.
Fatima D’Souza Eustaque D’souza another .... Petitioners.
Versus
Joint Mamlatdar II of Salcete others.... Respondents.
Writ Petition No. 198 of 1987, decided on 25/27-1-1989.
Advocates appeared :
S.G. Dessai, for petitioners.
V.B. Nadkarni, A.G., for respondents Nos. 1 2.
M.S. Usgaoncar with V.P. Thali, for respondent No. 4.
Section 15-Dwelling house of Mundkar-Right to purchase the area of dwelling house as being part of his dwelling house-Relevant date of fixing the area to which Mundkar entitled-Held, the relevant date is the date on which he records his intention to purchase and applies for fixing price of land on which his house stands.
Therefore, as the Act intended, inter alia to protect the mundkar against the eviction from his dwelling house and to give him the right to purchase it, it necessarily follows that the right accrued to the mundkar is also in respect of the dwelling house in which he was residing at the point of time of the enforcement of the Act, or at the point of time of the coming into force of the same Act. But if this position of law appears to be clear and unquestionable, one has to bear in mind, at the same time, the provisions of Section 15 of the Act. An examination of the said provision of law leaves no margin for doubts and as rightly pointed out by the learned Advocate. General what the section provided for is a right to the mundkar to purchase his dwelling house, if he so wishes. No where, in that particular provision of the Act or anywhere else in the Act, it has been laid down that the mundkar is bound to purchase his dwelling house. The provision is therefore merely an enabling provision and the mundkar mayor may not, according to his wishes, purchase the house. If this is so, it is manifest that if the land around the house appurtenant to it is freezed from the time of the enforcement of the Act, although that area varies in accordance to it belonging to a Panchayat or Municipal area, an absurd and most unjust situation would arise.
In fact, the mundkar may choose not to purchase the land for many years and to decide to do it only after the lapse of 10, 15 or "0 years. By this time, the conditions which were obtaining at the relevant time of the coming into force of the Act might have, and will definitely have, changed. It was precisely having, inter alia, in mind this kind of consideration that the Legislature established the land available to the mundkar for purchase in consideration of the circumstances whether his dwelling house is within the jurisdiction of a Panchayat or a Municipal Council. In the light of the above, in my view, the relevant date of fixing the area to which the mundkar will be entitled to purchase as being part of his dwelling house, is the date on which he records his intention to purchase his dwelling house in an application filed to the competent authority to fix the price of the land where the house stands.
2. The first petitioners husband and father of the second petitioner and the fifth respondent purchased a property known as "Madeva Morod" alias "Madeva Nomoxi" surveyed under No. 565/1 and registered in the Revenue Office under No. 1278, by a deed dated 20th July, 1977. A house bearing the No. 770 exists in the said property and the same is occupied by the fourth respondent. An application was filed by the said respondent for declaration that he is a mundkar of the said property and that he is in occupation of the aforesaid house, a cowshed and a store-room. By his judgment dated 12th February, 1981, the fourth respondent was declared mundkar of the house as well as of the cowshed and the store-room adjoining it. The matter was taken up in appeal, and by judgment dated 8th February, 1982, the Collector of Goa, allowing partly the said appeal, declared the fourth respondent mundkar in respect of the house only. There was a revision application filed to the Administrative Tribunal which was dismissed by judgment dated 12th June, 1987.
3. Before that, while the matter was in appeal, the fourth respondent filed an application under sections 15 and 16 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, for short, the Act, declaring his intention to purchase the said house. This house is situated in the ward Biumsa of Cuncolim, which was at the relevant time, within the jurisdiction of the Village Panchayat of Cuncolim. By a proclamation dated 17th January, 1984, published in the Government Gazette dated 27th January, 1984, the Government invited objections and suggestions to the proposal to change the said area into a municipal area. Thereafter, a Notification dated 25th May, 1987, was published in the Official Gazette dated 25th May, 1987, declaring the village of Cuncolim as municipal area, in exercise of the powers under section 3(1) of the Municipalities Act.
4. When the matters were so standing, the Joint Mamlatdar II of salcete by his order dated 10th October, 1985, fixed the purchase price of the land where the house of the fourth respondent stands, at Rs. 7/- per square metre, and further, directed that the said price be paid in terms of section 15(3) of the Act, as the fourth respondent is a village artisan. An appeal was filed, as already mentioned, against the aforesaid judgment of the Mamlatdar and the Collector of Goa by his order dated 15th April, 1986, held that, since the petitioner was admitting that the fourth respondent was a carpenter, there was no doubt that he was a village artisan and no further inquiry was required on the point. However, he held that the area has to be specifically worked out as well as the rate at which the mundkar has to pay the price. Finally, in the judgment dated 12th June, 1987, passed by the third respondent Administrative Tribunal in a revision filed against the aforesaid order of the Collector, it was held that since the petitioners had admitted that the fourth respondent was a village artisan there was no reason for interference. Accordingly, the said revision application was dismissed.
5. Mr. Dessai, the learned Counsel appearing for the petitioners, challenged the aforesaid orders of the first, second and third respondents, mainly, on three grounds. He, first, contended that the fourth respondent has not prayed that he be declared a village artisan, at the time the applied to be declared as a mundkar. Therefore, he was only declared mundkar and the respondents Nos. 1 to 3 could not hold the view that the fourth respondent was a village artisan without a prayer therefor, and further, without holding an inquiry for the purpose. Sec
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