An application for declaration of mundkar rights under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, is maintainable even after an order is passed by Mamlatdar under section 29 of the Act.

Headnote:
MUNDKAR RIGHTS - REGISTRATION - DECLARATION - MAINTAINABILITY - Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - Sections 8-A, 29, 30 - Whether application for declaration of mundkar rights under section 8-A is maintainable after an order is passed by Mamlatdar under section 29 - Scope and ambit of inquiries under sections 29 and 8-A - Presumptive value of entries in register of mundkars - Right to seek negative declaration - Interpretation of statutory provisions.
Fact of the Case:

The appellants filed an application under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, seeking a declaration of mundkar rights in respect of a house. The application was dismissed by the Mamlatdar on the ground that it was not maintainable in view of the dismissal of an earlier application filed under section 29 of the Act. The appellants challenged the order before the Additional Collector, the Administrative Tribunal, and the High Court.
Finding of the Court:

The High Court held that the application under section 8-A of the Act was maintainable even after an order was passed by the Mamlatdar under section 29. The Court observed that the scope and ambit of the inquiries under sections 29 and 8-A were different and distinct. The inquiry under section 29 was only for the purpose of making entries in the register of mundkars, while the declaration under section 8-A concluded the rights of the parties finally. The Court further held that the entries made in the register under section 29 had only presumptive value and could be rebutted by contrary evidence. The Court also held that the right to seek a negative declaration under section 8-A was not lost merely because an adverse order was passed under section 29 of the Act.
Issues: 1. Whether an application for declaration of mundkar rights under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, is maintainable after an order is passed by Mamlatdar under section 29 of the Act? 2. What is the scope and ambit of the inquiries under sections 29 and 8-A of the Act? 3. What is the presumptive value of entries made in the register of mundkars under section 29 of the Act? 4. Whether the right to seek a negative declaration under section 8-A of the Act is lost merely because an adverse order is passed under section 29 of the Act?
Ratio Decidendi: 1. The application under section 8-A of the Act is maintainable even after an order is passed by the Mamlatdar under section 29. 2. The scope and ambit of the inquiries under sections 29 and 8-A are different and distinct. The inquiry under section 29 is only for the purpose of making entries in the register of mundkars, while the declaration under section 8-A concludes the rights of the parties finally. 3. The entries made in the register under section 29 have only presumptive value and can be rebutted by contrary evidence. 4. The right to seek a negative declaration under section 8-A of the Act is not lost merely because an adverse order is passed under section 29 of the Act.
Final Decision: The High Court allowed the appeal, set aside the judgment of the Single Judge, and restored the order of the Administrative Tribunal remanding the proceedings to the Mamlatdar for disposal on merits.

JUDGMENT- M.L. PENDSE, J:--An interesting question as to whether the proceedings under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as 'the Act') are maintainable after an order is passed by Mamlatdar under section 29 of the Act rejecting the application for being entered as munkdar in the register of mundkars arises for determination in this Letters Patent Appeal. The facts giving rise to the filing of the appeal are not in dispute and are required to be briefly stated to appreciate the issue which falls for determination.

2. Late Sangtu filed application dated June 21, 1978 in the Court of Joint Mamlatdar of Canacona Taluka for entering his name as mundkar in the register to be maintained under section 29 of the Act. The application was dismissed by Mamlatdar by Order dated February 27, 1982 on the ground that the house is not registered in his name in the records of the Village Panchayat. Said Sangtu sought declaration in respect of house situated in the property known as Panna and registered in the Village Panchayat records under No. 101. He did not prefer appeal against the order of the Mamlatdar as prescribed under sub-section (8) of section 29 of the Act. Instead he filed application under section 8-A of the Act before the Mamlatdar for a declaration of being a munkdar in respect of house in dispute. The application was resisted by the respondent landlady on the ground that the application was not maintainable in view of dismissal of application filed under section 29 of the Act. The objection of the jurisdiction of the Mamlatdar to entertain the application found favour and the Mamlatdar by Order dated January 10, 1986 dismissed the application. In the meantime Sangtu expired and his widow and legal representatives present appellants carried appeal as prescribed under section 24 of the Act before the Additional Collector of Goa but the appeal ended in dismissal by order dated January 30, 1987. The appellants thereupon preferred revision application before the Administrative Tribunal, Goa, Daman and Diu. The Administrative Tribunal by order dated May 19, 1989 allowed the revision application and remanded the proceedings to the Mamlatdar for disposal on merits. The Tribunal came to the conclusion that the application under section 29 of the Act was only for registration of mundkarship and the dismissal of that application cannot prevent the appellants from seeking declaration of mundkarship rights under section 8-A of the Act. The Tribunal observed that the proceedings under section 29 and 8-A are different and distinct in scope and purpose.

The order passed by the Administrative Tribunal was challenged by the respondents by filing Writ Petition No. 285 of 1989 in this Court and the learned Single Judge by Judgment dated June 26, 1992 reversed the order passed by the Tribunal. Reported in (Prama Govinda Gaunear v. Administrative Tribunal, Goa)1, 1993(2) Bom. C.R. 163. The learned Single Judge held that the dismissal of the application under section 29 of the Act by an order which is expressed in crude and injudicious language prohibits institution of proceedings under section 8-A of the Act for declaration of mundkarship rights. The learned Judge felt that once the Mamlatdar determines that the name of the appellant cannot be entered in the register as mundkar, then the said finding amounts to a declaration contemplated under section 8-A of the Act. On the strength of this finding the learned Judge set aside the order of the Tribunal and restored the order of the Mamlatdar rejecting application under section 8-A of the Act on the ground that the application was not maintainable. The order of the learned Single Judge is under challenge in this Letters Patent Appeal.

3. Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants, submitted that the learned Single Judge was in error in concluding that the order passed under section 29 of the Act oper

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Judicial Analysis

1993 Supreme(Bom) 15

An application for declaration of mundkar rights under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, is maintainable even after an order is passed by Mamlatdar under section 29 of the Act.

Cases Referred (1)

Judicial Analysis