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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
N.J. Pandya, J
Suresh Shirodkar others ..... Petitioner.
Versus
Administrative Tribunal, Goa, Daman Diu others.... Respondents.
Writ Petition Nos. 401/91, 55/92, 307/92, 390/92 and 202 of 1994, decided on 22-1-1998.
Advocates appeared :
S.D. Lotlikar, for the petitioner in W.P. 401/91 55/92.
A.F. Diniz, for the respondents No. 3 4 in W.P. 401/91.
V.P. Thali, for the respondents No. 2, 3, 4 5 in W.P. 55/92, for the respondents No. 1 in W.P. 307/92 for the petitioners in W.P. 390/92.
M.S. Sonak, for the petitioners in W.P. 307/92, for the respondents No. 1 in W.P. 390/92.
N.N. Sardessai, for the petitioner in W.P. 202/94.
M.S. Joshi, for respondents No. 1 2 in W.P. 202/94.
Sections 32, 24 and 8-A Mamlatdars-Decision on reference-Appeal-Challenged on the ground that no appeal lies under Section 32 of Act-Held-Right of appeal cannot be denied by anyone that even if, the reference in answered in a particular manner by Mamlatdar under Section 32 of Act.-If, the procedure applicable as occurring in Section 32(2) of the Mundkars Act is understood in this light in relation to a suit, it is not possible to understand what exactly it means. The submissions made on behalf and in support of the view that no appeal lies pursuant to an order under Section 32 of the Mundkars Act by the Mamlatdar was to the effect that the procedure applicable would mean appeal arising out of a decree rendered in a suit. The words procedure applicable thereof, cannot be circumscribed in this manner, nor can it be confined to that narrow meaning Procedure necessarily would be with reference to the stage at which the reference was made. The suit might have come upto the stage of recording of evidence and therefore, could have been proceeded under Order XVIII, CPC and at a later stage the issue matter might have arisen. In other words, right from the ordinary stage of framing of an issue under Order XVIII, CPC upto the stage of rendering judgment under Order XX, CPC before the suit so far as the Civil Court is concerned decided, there is a possibility of raising of an issue required to be referred to under Section 32. The words, procedure applicable, thus, having been found to contain the meaning with reference to the context of the matter pending in a Civil Court, in Courts opinion, it cannot be taken aid of for curtailing the right of appeal after the statute has granted it to the aggrieved party. It is admitted position and it cannot be denied by anyone that even if, the reference is answered in a particular manner by the Mamlatdar under Section 32 of the Mundkars Act, either the Mundkar or the Bhatkar, as the case may be, can approach the Mamlatdar under the said Mundkar Act independence of the Civil Court and can get the matter decided one way or the other. Obviously, in both the proceedings the provisions of appeal being there in relation to the question of Mundkarship on one hand according .to alternate submission canvassed that there is no appeal, the Civil Courts in the entire hierarchy under the CPC will be entertaining first appeal and second appeal and revision as the case may be and on the other, the authorities who are mentioned in the Mundkars Act will also be entertaining the same in their own way. This will thus, give a situation where any of the authorities under the CPC on one hand and any of the authorities under the Mundkars Act, can give contradictory or conflicting finding on one and the same point.
2.The rival contentions can be summarized as under :--
There are two views in the matter. One view is to the effect that though there is provision in section 32 of the Mundkar Act of referring the issue and further making a decision given by the Mamlatdar or the Collector, as the case may be, binding upon the Civil Court it will not so bind the Civil Court unless all the remedies of appeal and revision available under the Mundkar Act are exhausted. Obviously, this will depend upon the effect of the finding given by the Mamlatdar pursuant to the reference under section 32 of the Mundkar Act whether it is chosen to be carried in appeal or revision, as the case may be.
3.The other view is that the decision given by the Mamlatdar attains finality as the Civil Court is bound by it and later on, so far as the right of appeal is concerned, it having been given under the Code of Civil Procedure in respect of all the issues that might be arising in the suit, the decision of the Mamlatdar even under the said Mundkar Act, can also be decided by an appeal by the appropriate forum under the Code of Civil Procedure, for short "C.P.C.". In order to appreciate these two contentions, the relevant provisions of the said Mundkar Act will have to be referred to and where necessary to be extracted and quoted.
4.The relationship of mundkar and bhatkar is peculiar to this State. The word "bhatkar" is defined in section 2 Clause (f) of the Mundkar Act reading as under :--
"bhatkar' means a person who owns the land on which the mundkar has a dwelling house."
The word "mundkar" is defined in section 2 Clause (p) of the said Mundkar Act. Likewise, the word "Mamlatdar" is defined in section 2 Clause (m) and "Collector", is defined in clause (h) of section 2 in the said Mundkar Act.
5.At the time when the Mundkar Act came into force, it was envisaged that there might be suits pending in the Civil courts and likewise appeals pending in execution of decree or order and other proceedings for the eviction of a mundkar. The said provision of pending proceedings does not stop at that. Even when a person in the said suit or proceedings has claimed to be a mundkar that situation is also dealt with. Under section 13 of the said Mundkar Act all these pending matters are required to be transferred to the Mamlatdar within whose jurisdiction the dwelling house is situate. Thereafter, in sub-section (2) and sub-section (3) of the said section 13, further provisions are made. It is interesting to note that in sub-section (2) it is expected of the Mamlatdar on receipt of the file, suit or of the proceedings, first to decide whether the person to be evicted is a mundkar or not and if he decides that he is not a mundkar, the suit or proceedings shall be re-transferred to the Court. As per sub-section (3) if the decision is in the affirmative, he has to declare that the suit has abated and thereafter the bhatkar is to make a fresh application under the Mundkar Act, if the bhatkar so desires. Obviously, the application referred to herein is an application for eviction of mundkar.
6.There is also a provision in section 32 for referring of an issue by the Civil Court when the issue that has arisen before the Court involves a question which is required to be settled, decided or dealt with by the Mamlatdar or the Collector under the said Mundkar Act. Simultaneously, the Civil Court has to stay the suit and award the answer to the reference. According to sub-section (2) of section 32, the Mamlatdar on receipt of the reference has to d
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