2006 Supreme(Bom) 447

IN THE HIGH COURT OF BOMBAY
Vassudev Pandurang Naik
Versus
Krishna Vithoba Xete Tilve
Decided on, March 23, 2006

Headnote:CONSTITUTION OF INDIA, 1950 - Articles 226 and 227 Maintainability of writ Administrative order challenged in writ No perversity found in order Enquiry directed to be conducted by Mamlatdar Order suffered illegality in issuance as well as jurisdictional error Wrong order needs to be interfered with. In view of the above facts, it is clear that the order upon which reliance was placed by the opponents was an order registering applicant No. 1/petitioner No. 1 as mundkar. The said order was passed under Section 29 of the Act. This Court, in the Judgment in the case of Smt. Gulabi Sangtu Devidas, 1994 (3) Bom CR 328 has clearly held that the scope of an application under Section 8-A and under Section 29 of the Act is entirely different. The entries made under Section 29 of the Act are only presumptive in nature, while declaration under Section 8-A concludes the rights of the parties finally. In view of the ratio laid down in Smt. Gulabi ’s case, it is clear that the mere fact that a person has been registered as mundkar, cannot be taken as conclusive until that person is declared as mundkar in respect of the dwelling house. It is pertinent to note that the application which was before the Mamlatdar was one for declaration under Section 8-A of the Act. Therefore, the Mamlatdar was obliged to hold an inquiry in terms of Rule 14, sub-rules (7), (8) and (9) of the Mundkars Rules. The question whether the applicants could be declared as mundkars of the respondents ought to have been decided only after holding an inquiry as provided under the Act and the Rules. Therefore, in my opinion, the Mamlatdar as well as the Administrative Tribunal were not justified in holding that the application filed by the applicants/petitioners was not maintainable in view of Order dated 19.11.1984. No doubt, the Deputy Collector was also not entitled to give any finding on merits which he chose to give and as rightly submitted by the counsel for the petitioners, this finding also deserves to be set aside.

       The respondent No. 3 has committed jurisdictional error while passing the impugned judgment and order. There is also error of law apparent on the face of record which justifies interference of this Court in exercise of writ jurisdiction. Therefore, the judgments and orders passed by the Administrative Tribunal, the Deputy Collector as well as the Mamlatdar are quashed and set aside and the matter is remanded to the Mamlatdar to decide the application filed by the petitioners in accordance with law. The respondents No. 1 and 2 are also permitted to file a detailed reply to the application for declaration filed by the petitioners. The respondents No. 1 and 2 are at liberty to take all objections to the application filed by the petitioners. Shri Kholkar has made a prayer for early disposal of the case filed before the Mamlatdar on the ground that the case is of the year 1996 and also on the ground that respondent No. 2 is a senior citizen. The request is justified. Accordingly the Mamlatdar is directed to complete the inquiry within a period of six months from the date of receipt of the order from this Court. The registry i s directed to send the writ immediately. The parties have to appear before the Mamlatdar. The petition stands disposed of in the aforesaid terms with no order as to costs.

       Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - Section 8-A - Declaration of mundakarship - Objected as already declared way back - Challenged - Remanded - Challenged before Administrative Tribunal - Set aside - Challenged in writ - Plea, mamlatdar erred by allowing application of preliminary enquiry - Provision under Act not obeyed - Held - A person registered as mundkar cannot be held so conclusively until such person is declared a mundkar. - In view of the above facts, it is clear that the order upon which reliance was placed by the opponents was an order registering applicant No. 1/petitioner No. 1 as mundkar. The said order was passed under Section 29 of the Act. High Court, in the judgment in the case of Smt. Gulabi Sangtu Devidas, 1994 (3) Bom CR 328 (Bom), has clearly held that the scope of an application under Section 8-A and under Section 29 of the Act is entirely different. The entries made under Section 29 of the Act are only presumptive in nature, while declaration under Section 8-A concludes the rights of the parties finally. In view of the ratio laid down in Smt. Gulabi ’s case, it is clear that the mere fact that a person has been registered as mund kar, cannot be taken as conclusive until that person is declared as mundkar in respect of the dwelling house. It is pertinent to note that the application which was before the mamlatdar was one for declaration under Section 8-A of the Act. Therefore the mamlatdar was obliged to hold an inquiry in terms of Rule 14, sub-rules (7), (8) and (9) of the Mundkars Rules. The question whether the applicants could be declared as mundkars of the respondents ought to have been decided only after holding an inquiry as provided under the Act and the Rules. Therefore, the mamlatdar as well as the Administrative Tribunal were not justified in holding that the application filed by the applicants/ petitioners was not maintainable in view of order dated 19.11.1984. No doubt the Deputy Collector was also not entitled to give any finding on merits which he chose to give and as rightly submitted by the counsel for the petitioners, this finding also deserves to be set aside.

       Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - Sections 8-A and 29 - Mundkarship - Declaration of - Rejected - Challenged - Plea, matter not decided after proper enquiry - Rebutted - Order impugned passed under Section 29 and not under Section 8-A - Matter directed to be enquired vide Section 8-A and decided under Section 29 of the Act. - The Deputy Collector was also not entitled to give any finding on merits which he chose to give and as rightly submitted by the counsel for the petitioners, this finding also deserves to be set aside. Court unable to accept the submission in view of order no purpose would be served in remanding the matter of the mamlatdar since the mamlatdar would be bound by the said order and in the application filed by the applicants/petitioners, he has no jurisdiction to set aside the judgment which has become final. Having regard to the nature of the inquiry required to be conducted by the mamlatdar, it is not necessary for the mamlatdar to give any declaration about the validity of the judgment. The mamlatdar, ought to have held inquiry in the matter and decided the same after considering all the objections on behalf of the opponents before him.

       The respondent No. 3 has committed jurisdictional error while passing the impugned judgment and order. There is also error of law apparent on the face of record which justifies interference of High Court in exercise of writ jurisdiction. Therefore the judgments and orders passed by the Administrative Tribunal, the Deputy Collector as well as the mamlatdar are quashed and set aside and the matter is remanded to the mamlatdar to decide the application filed by the petitioners in accordance with law.

       Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - Sections 8-A and 29 and Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, Rules 14(7), (8) and (9) - Application before mamlatdar for declaration of mundkarship - Declaration as mundkars has to be made only after holding an enquiry as provided under the Act and the Rules - Mere fact that a person has been registered as mundkar, cannot be taken as conclusive until that person is declared mundkar under Section 8-A in respect of the dwelling house. - Petitioners filed an application for declaration of mundkarship before the mamlatdar for declaration under Section 8-A of the Goa Mundkar s (Protection from Eviction) Act, 1975. Preliminary objection was raised stating that the applicants have already been declared mundkars vide order dated 19.11.1984 and therefore their application was liable to be dismissed. Application of petitioners was held to be not maintainable in view of order dated 19.11.1984.

       Held, that the scope of an application under Section 8-A and under Section 29 of the Goa Mundkars (Protection from Eviction) Act, is entirely different. The order dated 19.11.1984 upon which reliance was placed by the opponents was an order registering applicant No. 1/petitioner No. 1 as mundkar. The said order was passed under Section 29 of the Act. The entries made under Section 29 of the Act are only presumptive in nature, while declaration under Section 8-A conclude s the rights of the parties finally. Mere fact that a person has been registered as mundkar, cannot be taken as conclusive until that person is declared as mundkar in respect of the dwelling house. The application which was before the mamlatdar was one for declaration under Section 8-A of the Act. Therefore the mamlatdar was obliged to hold an inquiry in terms of Rule 14, sub-rules (7), (8) and (9) of the Mundkars Rules. The question whether the applicants could be declared as mundkars of the respondents ought to have been decided only after holding an inquiry as provided under the Act and the Rules. Therefore, the mamlatdar as well as the Administrative Tribunal were not justified in holding that the application filed by the applicants/ petitioners was not maintainable in view of order dated 19.11.1984. The mamlatdar, ought to have held inquiry in the matter and decided the same after considering all the objections on behalf of the opponents before him. Matter is remanded to the mamlatdar to decide the application filed by the petitioners in accordance with law.

       Goa, Daman & Diu Mundkars (Protection from Eviction) Rules - Rules 14(7), (8) and (9) - See Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (1 of 1976), Sections 8-A and 29.