Keshav Bablo Gawde and others vs Ramakant Khandeparkar and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 192

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.K. Batta, J.
Keshav Bablo Gawde others ..... Petitioners.
Versus
Ramakant Khandeparkar others.... Respondents.
Writ Petition Nos. 307 390 of 1992, decided on 26-3-1998.
Advocates appeared:
M.S. Sonak with D. Pangam in W.P. No. 307/1992, for the petitioners and in W.P. No. 390/1992, for the respondent No. 1.
J.E. Coelho Pereira, with V.P. Thali in W.P. No. 307/1992, for the respondent No. 1 and in W.P. No. 390/1992, for the petitioner.

Headnote:Section 2(p)-Where the dwelling house is a Mundkar entitle to remain under Mundkar Act-Force to shift to another area by landlord Illegal.-Under the Mundkar Act, a Mundkar is entitled to remain where the dwelling house is and within the plinth area, he is entitled to construct or reconstruct the house. He cannot be forced to shift from the existing Mundkarial house to another site at sweet will of the landlord.
Sections 2(p) 15 and 16-; Mundkars right-Dwelling house in : dispute jointly held by Mundkar. I family consisting of 4 brothers-Three other brothers shifted to alternate site made available by landlord-Appellant insisting to retain the whole house-Tribunal held that he could be restricted only 1/4 share i.e., 25 sq. metres of land-Held-Since appellant had constructed the house in 75 sq. metre area-He is entitled to purchase the said area and if, he purchased that area it will not necessary to demolish his house.-Learned Advocate Shri Coelho Pereira basically advanced the same arguments which had been advanced before the Administrative Tribunal and. in addition, urged before me after taking me through the definition of Mundkar in Section 2(p) and the members of the family under Section 2(n) of the said Act, that in view of the said definition, the package which was given by the landlord was bound to be accepted as a whole by all the four brothers. constituting members of the joint family and once three brothers had accepted, Keshav Gawde could not refuse the said package and he was bound to shift from the suit house. He placed reliance on a judgment of erstwhile Additional Judicial Commissioner in Nagueslta Sitarama Naik and others v, Rosetta Maria Ana Alvares Brito and others, AIR 1975 Goa, Daman & Diu 40. The said ruling is not at all applicable to the facts and circumstances of the case since in that Case a suit for specific performance of the contract was filed since the Mundkar had promised to vacate the suit house, wrongly constructed by him and constructed new house on another site. Keshav Gawde at no point of time accepted the offer which was given by the landlord and Court did not find any merit in the submission made by learned Advocate Shri Pereira that the package once it was accepted by three brothers, Keshav Gawde could not refuse to accept the same and that he was bound to shift to the new site which was made available by the landlord. Under the Mundkar Act, a Mundkar is entitled to remain where the dwelling house is and within the plinth area. he is entitled to construct or reconstruct the house. He cannot be forced to shift from the existing Mundkarial House to another site at sweet will of the landlord. In case Keshav Gawde had agreed to shift and backed out, the position would have been slightly different. Likewise. Court did not find any merit in the submission advanced by learned Advocate Shri Sonak that the reference was made to the Mamlatdar to determine as to whether Keshav Gawde was Mundkar of the house. But in view of the finding that the house in question was jointly held by Keshav Gawde and his three brothers and other three brothers of Keshav Gawde had given up their right in the suit house and shifted to alternate site made available by the landlord the right of Keshav Gawde as rightly held by the Administrative Tribunal could be restricted only to 25 sq. metres of land since the entire house initially was of 100 sq. metres. It appears that Keshav Gawde had constructed a house admeasuring 71 sq. metres. In view of the fact that Administrative Tribunal has held that the entitlement of Keshav Gawde is to the extent of 75 sq. metres, the said Keshav Gawde is entitled to purchase the said area of 75 sq. metres. In case the said area of 75 sq. metres is purchased by Keshav Gawde it will not be necessary to demolish his house which falls within the said area of 75 sq. metres.

JUDGMENT - R.K. BATTA, J.:---These petitions have arisen on account of same judgment passed by the Administrative Tribunal in Mundkar Revision Appln. No. 78/89. Writ Petition No. 307/92 is filed by a mundkar and Writ Petition No. 390/92 is filed by the landlord. The landlord had filed a civil suit for eviction of Keshav Bablo Gawde and in that suit, Keshav Gawde had taken the plea that he along with his 4 brothers were occupying the house as mundkars. Accordingly, the Civil Court had referred the issue of Mundkarship to the Mamlatdar. Before the Mamlatdar, the landlord Ramakant Khandeparkar had submitted that due to floods, he had offered to the Government his land lying at higher level for being divided into plots to be allotted to the occupants of the house who were affected due to flood and that accordingly, the family of Keshav Gawde and his brothers were jointly given 5 plots in Survey No. 67/1; that though his other brothers had shifted from the house, Keshav Gawde did not shift. The Mamlatdar came to the conclusion that Keshav Gawde and his brothers were staying in a joint family; that the land allotted to and accepted by other members of the joint family could not be said to have been given independently to those members of the family only; that the house consisted of 100 sq. meters and the right of Keshav Gawde could be of 25 sq. meters to which at the most he would be entitled. The Mamlatdar also came to the conclusion that the respondent and his three brothers were mere care-takers and in view of the said findings, the claim of Keshav Gawde was dismissed.

2.This judgment of the Mamlatdar was challenged by Keshav Gawde before the Additional Collector, who came to the conclusion that the respondent fulfilled all the requirements of mundkarship and once he was declared as mundkar, he was entitled to purchase 300 sq. meters area and reconstruct house being of 71 sq. meters only, the said Keshav Gawde had not contravened any of the provision of the Act. The Additional Collector thus declared Keshav Gawde to be mundkar entitled to purchase 300 sq. meters of land. The matter was carried to the Administrative Tribunal by the landlord Ramakant Khandeparkar. It was contended before the Administrative Tribunal that the offer which was made to Keshav Gawde and his three brothers, was a joint offer; that the three brothers have accepted the offer and shifted to the plots 'A' to 'C'; that previously a joint application filed by Keshav Gawde and his brothers for registration as mundkars under section 29 had been dismissed for default and no further application for mundkarship could lie. Alternatively, it was argued that assuming that the respondent had the right of mundkar in the suit house, his right was restricted to only two rooms, which he was occupying in the old house and that taking into consideration that the area of the house was 100 sq. meters, Keshav Gawde was entitled for reconstruction on 25 sq. meters area, but he had constructed house covering 75 sq. meters. Learned Advocate for the landlord thus argued before the Administrative Tribunal that the respondent would only be entitled for an area of 25 sq. metres as house and 1/4th of 300 sq. meters, including the land where the house stands. This alternate argument of learned Advocate for the landlord was accepted by the Administrative Tribunal and I am at loss to understand as to how the landlord can now have the grievance in the matter.

3.Be that as it may, learned Advocate Shri Sonak argued for the mundkar Keshav Gawde that the reference which was made to the Mamlatdar was to find out whether the respondent was mundkar of the house and not that he was the mundkar of the part of the house, the Administrative Tribunal should not have taken into consideration that the other brothers had left, so as to reduce the area of the suit house and restrict it to 25 sq. meters only in so far as the Mundkar Keshav Gawde is concerned and that the said Keshav Gawde would be entitled t

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