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2010 Supreme(Bom) 355
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
R. M. SAVANT, J.
Shri. Cazi Mohammad Patchmiam
Vs.
Smt. Sitabai Balaram Nipanikar & Ors.
Writ Petition No.243 of 2003
Decided On : 5th March, 2010.
Ms. Andrea Fernandes, Advocate holding for Mr. Joseph Vaz, for the Petitioner.
Mr. V. Menezes, Advocate for the Respondent No.1.
Headnote:Constitution of India - Article 226 - Writ jurisdiction - Exercise thereof - Against concurrent finding - Held -Both the Appellate Authority and Administrative Tribunal having reached the conclusion and recorded concurrent - Finding - No case for interference in writ jurisdiction is made out.
Goa, Daman and Diu Mundakars (Protection from Eviction) Control Act, 1975 - Section 2(P) - Mundkar - Meaning thereof - Held - The person who is paying rent to bhatkar for occupation of house is not included in definition of the term mundkar.
Goa, Daman and Diu Mundakars (Protection from Eviction) Control Act, 1975 - Sections 2(P), 8-A and 29 - Mundkar/Tenant - Respondent-1 filed application for registering his name as Mundkar under Section 8-A of Act - Rejected by Mamlatdar - Appeal against - S.D.O. reversed order of Mamlatdar - Revision against - Rejected - Challenged - Held - Admittedly respondent-1, a labbler, paying Rs. 5/- as a rent to petitioner for his premises - Said admission cannot be a conclusive proof that he not a Mundkar - Concurrent findings of Appellate Authority and Administrative Tribunal as regards registration of respondent as a Mundkar cannot be faulted with - Warrants no interference in writ jurisdiction under Article 227 of Constitution - Petition dismissed. - Court have considered the rival contentions. It would be pertinent to note that the application filed by the respondent herein was for registering herself as a mundkar. The said application can be filed under Section 29 of the said Act. The said proceedings for registration as held by the judgment of the Court are in the nature of summary proceedings and are in contrast to the proceedings which are initiated for a declaration as a mundkar under Section 8-A or for a negative declaration under the said provision. The said proceedings under Section 8-A are elaborate proceedings where the parties are given opportunity to produce the evidence in support of their respective cases. It is in the context of the nature of the proceedings that challenge to the impugned orders would have to be considered. It is not disputed that the respondent was a cobbler and was belonging to the lower strata of society. No doubt it is true arid is also not disputed by the counsel for the respondent that the respondent in the said survey case No. 109/Ponda has deposed that he was paying rent of Rs. 5/- for the occupation of the house. The said statement therefore by itself would not preclude the authorities from considering the other material on record considering the nature of the proceedings. Apart from the said fact, the said statement as rightly held by the Appellate Authority could be considered only for contradicting the respondent in subsequent proceedings and would not conclude the matter by itself.
In the instant case, what is significant is that the respondent has paid house tax from the year 1972 till the year 1988 for which she has produced the receipts and which receipts were also exhibited. It would also be significant to note that the respondent had also applied for construction licence to the Ponda Municipal Council which construction licence was issued pursuant to which the hut which was existing in the property has been reconstructed. If the respondent was in fact a tenant as claimed by the petitioner abovenamed, the petitioner would have taken exception to the construction of the house and payment of the house tax by the respondent. Significantly, both the aforesaid things have been done by the respondent without any opposition from the petitioner. The petitioner therefore can be said to have acquiesced in the construction as also the payment of the house tax and therefore has impliedly accepted the fact that the occupation of the respondent was in the capacity of a mundkar. In Court’s view, considering the strata of the society from which the respondent hails and considering the aforesaid two documents, the findings of the Appellate Authority and the Administrative Tribunal cannot be faulted with.
The reliance of the petitioner on the judgment of the Apex Court (supra ) in Court’s view is misplaced. The question before the Apex Court was the admissibility of an admission made in the earlier proceedings, the Apex Court in the said context has held that there was no necessity to prove the same. Such is not the situation in the instant case where the petitioner accepts that the said statement was made in the deposition in said survey case No. 109/Ponda. The question is whether the other material evidence like the construction licence and house tax receipts can be glossed over. The answer has to be obviously no. The reliance on the judgment of Division Bench of the Court (supra) by the counsel for the petitioner is also misplaced. The issue before the Division Bench in the said case is concerned, was as to whether the person in occupation of a land who was paying rent could come within the definition of the term mundkar under the said Act. The contention raised on behalf of the bhatkar in the said case was that the rent was for the land on which the house was situated and not for the house. The said judgment has no application in the factual situation of the present case.
Both the Appellate Authority and Administrative Tribunal having reached the conclusion and having recorded concurrent findings as regards the registration of the respondent as a mundkar, in Court’s view, no case for interference in the writ jurisdiction of the Court under Article 227 of the Constitution of India is made out. The writ petition is accordingly dismissed. Rule discharged with no order as to costs.
Goa, Daman and Diu Mundakars (Protection from Eviction) Control Act, 1975 - Section 29 - Application for registration as mundkar - Opposed by petitioner - Held - Respondent/Applicant has paid house tax from the year 1972 till the year 1988 - Respondent/ Applicant reconstructed the hut into house under license of municipal counsil - If the respondent was in fact a tenant as claimed by petitioner, the petition would have taken exception to construction of house and payment of house tax - Petitioner can be said to have acquiesced in construction as also the payment of house tax and therefore, has impliedly accepted occupation of respondent as mundkar.
Goa, Daman and Diu Mundakars (Protection from Eviction) Control Act, 1975 - Section 29 - Registration as Mundkar - Nature - Held - Proceeding for registering a mundkar are in the nature of summary proceedings - Entry made in the register of mundkar of particular village has only presumptive value.
The issue which arises is as to whether the Respondent No.1 herein is entitled to be registered as a "mundkar" in terms of Section 29 of the Goa, Daman and Diu Mundkar's (Protection from Eviction) Act, 1975 (hereinafter referred to as 'the said Act').
2. The factual matrix can be stated thus:
The Respondent No.1 herein is the wife of one Balaram N. Nipanikar who had filed an application for registering him as a mundkar of the dwelling house bearing house No.66 w-6 situated in survey No. 163/4 of Village Ponda which was situated in the property of the bhatkar i.e. the Petitioner abovenamed. The said application filed by the husband of the Respondent No.1 came to be opposed by the Petitioner abovenamed by filing a written statement. It was the case of the Applicant in the said application for registration that he is the mundkar of the said house and that the said dwelling house was constructed by him about 25 years back. The said house originally was a hut and that in the year 1986 under a valid licence issued by the Ponda Municipal Council, it was repaired by erecting laterite stone walls and a roof was put on it is of tin sheets. The said case of the Respondent was denied by the Petitioner abovenamed. It was the case of the Petitioner/Opponent that the Applicant/ Respondent was not his mundkar but was a tenant in respect of the said dwelling house paying him a monthly rent of Rs.5/-.In support of his case, the Respondent had examined herself and two other witnesses namely Chandrakant Vithal Matonkar and Harischandra N. Halarnkar. The xerox copy of the Municipal licence was produced which came to be numbered as Exhibit -1 and the receipts in respect of the payment of Municipal house tax from the year 1972-73 to 1987 and 1988 were produced which were marked as Exhibit 4. The witnesses of the Applicant deposed that the Respondent! Applicant was residing in the said house for the last 25 years prior to the said application. However, they could not state in what capacity he was so residing. The Petitioner examined himself and produced the deposition of the said Balaram Nipanikar in survey case NO.109/Ponda wherein he has deposed that he was paying Rs.5/- per month as rent of the house to the Petitioner. The xerox copy of the said deposition was produced by him which was marked at Exhibit 1. He deposed that the said Balaram Nipanikar and thereafter on his death, his wife has been paying the rent to him and that he had not issued any rent receipts as relations between the parties were cordial.
3. It would be relevant at this stage to refer to the definition of the Mundkar under the said Act. The definition is contained in Section 2(p). The same reads thus :
"(p) "mundkar" means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include(i) a person paying rent to the bhatkar for the occupation of the house;
(ii) . . .. . .. . .. . . . .. .. . . .. . .. . . . ..
(iii) .............................
(i v) . .. .. . .. . .. . .. .. . .. . .. . . .. . ..
4. It would also be relevant to refer to Section 29 of the said Act which is a provision
invoked by the Respondent for registering herself as a mundkar. The same is as follows
"29. Register of mundkars.- (1) In respect of every village, the Government shall cause a register of mundkars to be prepared and maintained in the prescribed manner.
(2) The register shall contain the fo
