1997 Supreme(Bom) 618

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.M. Lodha R.K. Batta, JJ.
Kum. Maria Eliza Marques....Petitioners.
Versus
Shri Madhukar M. Moraskar others .....Respondents.
Writ Petitions Nos. 135 of 92, 162 of 89, 234 of 91, 389 of 91, 430 of 91, 431 of 91, 416 of 91 and 90 of 92, decided on 19-11-1997.
Advocates appeared :
S.S. Usgaonkar, for the petitioner in W.P. No. 135/92.
S.M. Lotlikar, for the respondent No. 1 in W.P. No. 135/92.
S.S. Kantak, for the petitioner in W.P. Nos. 162/89, 234/91, 389/91, 430/91 431/91.
S.D. Lotlikar, for the respondent No. 1 in W.P. No. 162/89 for the petitioner in W.P. No. 416/91.
L.V. Talaulikar, for the respondent No. 1 in W.P. No. 389/91.
Miss Sulekha Kamat, for the respondent No. 1 in W.P. Nos. 430/91, 431/91 90/92.
V. Menezes, for the respondent No. 3 in W.P. No. 416/91.
E.P. Lobo, for the petitioner in W.P. No. 90/92.

Headnote:Articles 31-B, 13, 14, 19(1) and 300-A-Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, Section 2(i) (as amended in 1985)Dwelling house-Right to propertyFundamental right-Residence of Mundkar irrespective of whether house constructed by Mundkar at his own expense or at the expense of bhatkar-Both categories in same category is violative of Article 14Held-Right to property is not a fundamental right by 44th amendment- Therefore under Article 13 cannot be declared to be void.-A plain reading of Section 2(i) of Goa Mundkars Protection Act, 1975, defining dwelling house reflected the clear object and the intent of the Legislature when it provided that dwelling house means the house in which the Mundkar resides with a fixed habitation whether such house was constructed by the Mundkar at his own expense or at the bhatkar. Therefore, under the definition of Section 2(i), the residence of a Mundkar with fixed habitation was dwelling house irrespective of whether such house was constructed by the Mundkar of his own expenses or at the expense of the bhatkar or with financial assistance from the bhatkar. However, in 1985 Mah LJ 211, a plea was raised that for a person to be Mundkar under Section 2(p) of the Mundkars Protection Act, 1975, the dwelling house must be constructed by Mundkar himself and not otherwise. In 1985 Mah LJ 211 the learned Single Judge of this Court agreeing with the contention of the petitioner did hold that for a person to be a Mundkar, the dwelling house must be constructed by the Mundkar himself and not otherwise. The learned Single Judge apparently did not attach importance to the expression whether such house was constructed at the bhatkars expense or with financial assistance from the bhatkar occurring in Section 2(1). The construction made by the learned Single Judge was found to be not in consonance with the object and the intent of the Legislature by the Legislature and it decided to amend the definition of Section 2(i). The learned Counsel appearing for one of the petitioner, challenged the constitutionality of the Amendment Act on grounds (i) the Amendment offends Articles 300-A and 31-A of the Constitution of India and therefore, is ultra vires the Constitution (ii) mere fact of the occupation of the house owned by bhatkar by the alleged Mundkar would not justify divesting the bhatkar of his or her ownership by extinguishing his or her rights and creating acquisition in favour of the alleged Mundkar since such action would not be justified under Article 31-A of the Constitution of India and (ill) there is no case of agrarian reform involved and, therefore, Article 31-A has no application. The learned counsel appearing for some of the petitioners, adopted the arguments and further submitted that by this Amendment, two classes of Mundkars have been created, first is the class of those Mundkars who have constructed the houses from their own expenses and the other class of Mundkars in the occupation of dwelling houses which were constructed by bhatkars and, therefore, the Amendment is violative of Article 14 of the Constitution of India. The contentions raised by the learned counsel for the petitioners challenging the constitutional validity of the Amendment Act, 1985 are wholly misconceived and without any substance. Right to property is no longer a fundamental right under the Constitution of India. Articles 31 and 19(1)(f) which made the right to property a fundamental right were deleted by the 44th Amendment in the Constitution. Clause (1) of Article 31 as was obtaining prior to its deletion now forms Article 300-A in Part XII of the Constitution of India of course Article 300-A is not fundamental right. Laws inconsistent with or interrogation of the fundamental rights in the Constitutional scheme of things can be declared void-Article 13 of the Constitution of India forbids the State from making any law which takes away or abridges the rights conferred by Part III (fundamental rights) and any law made by the State in contravention and derogation of Part III of the Constitution of India is void to the extent of its contravention and derogation. Right to property, is no longer a fundamental right and is not a right covered by Part III of Constitution of India and, therefore, under Article 13 of the Constitution of India cannot be declared to be void.

       Section 2(1)--Constitution of India, 1950, Articles 14, 19, 31A and 300-Right to property-If a person is deprived of his property, such action cannot be said to be offensive of Art. 30o-A, as the Art. 300-A does not prohibit the Slate from enacting the law within its competence which results in deprivation of property of a person, therefore, amendment Act does not offend the Art. 300.-Court is afraid the contentions raised by the learned counsel for the petitioners challenging the constitutional validity of the Amendment Act, 1985 are wholly misconceived and without any substance. Right to property is no longer a fundamental right under the Constitution of India, Articles 31 and 19(1)(f) which made the right to property a fundamental right were deleted by the 44th Amendment in the Constitution. Clause (1) of Article 31 as was obtaining prior to its deletion now forms Article 300-A in Part XII of the Constitution of India of course Article 300-A is not fundamental right. Laws inconsistent with or in derogation of the fundamental rights in the constitutional scheme of things can be declared void. Article 13 of the Constitution of India forbids the State from making any law which takes away or abridges the rights conferred by Part III fundamental rights and any law made by the State in contravention and derogation of Part III of the Constitution of India is void to the extent of its contravention and derogation. Right to property, as Court has held, is no longer a fundamental right and is not a right covered by Part III of Constitution of India and therefore, under Article 13 of the Constitution of India cannot be declared to be void.

       Goa, Daman and Diu Mundkars (Protection from Eviction) Amendment Act, 1985

       Section 2(i)-Scope of Dwelling House-Petitioner before Tribunal under Section 2(i) that House must be structure built for the purpose of Mundkar-It not built, cannot attract the deterioration of Section 2(i)-Contention negatived by Tribunal-Held-Order passed by Administrative Tribunal does not require interference.- The definition of Dwelling house under Section 2(i) of the Act must be structure specifically built for the purpose of Mundkar and if, the said house is not build for the purpose of Mundkar, such house would not be covered under Section 2(i). The Tribunal negatived the said contention raised by the petitioner by observing that under Section 2(i) of the Act it was not necessary that the structure must have been specifically built for the purpose of Mundkar. That there is any requirement under the law that the house to be Dwelling house within the meaning of Section 2(i), must be a structure specifically built for the purpose of Mundkar. The Tribunal has taken into consideration the entire evidence and fund that though the suit house was earlier used as store from for coconuts, but, later on it was used as residence by the respondent No. 1 and the respondent No. 1 was covered under the definition of Mundkar as provided in Section 2(p) the two Courts below namely, the Appellate Authority and the Administrative Tribunal have considered the evidence on record and the legal position in right perspective and reached the correct finding that the respondent No. 1 has established the facts which entitles him for declaring as Mundkar under Section 2(p) and that the suit house occupied by him was Dwelling house under Section 2(i). The order passed by the Administrative Tribunal, therefore, does not call for an interfere by this Court.

       Section 2(1) (As amended in 1985-See Constitution of India, Articles 31-B, 13, 14, 19(1) and 300A.