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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
F.M. REIS, J.
Shri Vassant Krishna Palyekar & Anr.
Vs.
Mrs. Agnela Figueira & Ors.
Writ Petition No. 573 of 2006
Decided on : 12th October, 2012
GOA, DAMAN & DIU MUNDKARS (PROTECTION FROM EVICTION) ACT, 1975 - Sections 8-A and 29 - Declaration of Mundkars.
Rejection of an application filed under Section 29 of Act for registration as mundkar by Mamlatdar, not barred subsequent application under Section 8-A of Act. - The judgments passed by the authorities below while disposing of the application for registration flied by the mother of the petitioner Nos. 1 and 2, namely Parvati. From the material on record, it cannot be disputed that the mother of the petitioner Nos. 1 and 2 had filed an application for registration under the provisions of Section 29 of the Mundkar Act as a mundkar of the suit dwelling house. The said application came to be rejected by the Mamlatdar and order passed by the Mamlatdar was upheld by the Administrative Tribunal as well as by the Court. Hence, the application for registration came to be decided against the petitioners.
The application under Section 8-A of the Mundkar Act for declaration of mundkarial right is maintainable after an order is passed by the Mamlatdar under Section 29 of the Mundkar Act. It has been further held that it is not correct to suggest that the only remedy of an aggrieved person against an order passed by the Mamlatdar under Section 29 of the Act is to file an appeal, the fact that the aggrieved person has not resorted to file an appeal does not conclude the right to seek a declaration under Section 8-A of the Mundkar Act.
GOA, DAMAN & DIU MUNDKARS (PROTECTION FROM EVICTION) ACT, 1975 - Sections 29 and 30 - Registration as mundkar.
Merely because of rejection of an application filed under Section 29 of Act for registration as mundkar, application under Section 8-A of Act not barred by principle of res judicata. - The effect of an order under Section 29 was to make an entry in the register of mundkars as provided under Section 30 of the Mundkar Act. Section 30 of the Act provides that an entry made in the register of mundkars prepared in accordance with the provisions of this Act and the rules made thereunder shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereafter. Hence, entries in the registration of Mundkar would only create a presumptive value. Reading the provisions of Sections 29 and 30 of the Mundkar Act, it can be safely assumed that the Legislature did not intend to give proceeding under Section 29 of the Mundkar Act. The character of finality which will make the judgment to operative as res judicata . The Act itself provides that the effect of an order passed under Section 29 of the Mundkar Act only draws a presumptive value which shows that the Legislature did not intend to give finality to an order passed in the course of an application for registration of mundkar . Hence, merely because during the course of the application for registration of mundkar, a person has been treated to be not a mundkar, by itself would not disentitle such a person to file an application under Section 8-A of the Mundkar Act for declaration and such application cannot be dismissed as being barred by principle of res judicata . No doubt, any incidental findings given by the Mamlatdar while disposing of the application for registration of mundkar can always be considered as to whether such findings have attained finality. But however, such exercise can be done only after evidence is recorded and inquiry is held in the application under Section 8-A of the Mundkar Act.
1. Heard Shri J.P. Mulgaonkar, learned Counsel appearing for the petitioners and Shri C. A. Ferreira, learned counsel appearing for the respondents.
2. The above petition challenges the common judgment and order dated 05.09.2006 passed by the learned Administrative Tribunal dismissing the Mundkar Revision Application Nos.21/2005 and 22/2005 filed by the petitioners and judgment and order dated 27.04.2005 passed by the learned Dy. Collector of Bardez in case No. DC/MND/MAP/REV/61/2002 and case No. MND/MAP/APL/REV/58/02, THE whereby the order of the Joint Mamlatdar dated 30.09.2002 rejecting the preliminary objections raised by the respondents to the application for declaration under Section 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 hereinafter referred to as "the said Mundkar Act" was set aside.
3. Briefly the facts of the case are that late Krishna Palyekar filed an application for registration as Mundkar before the Mamlatdar of Bardez, at Mapusa bearing case No. MND/GUIRIM/371/87. On receipt of the notice, the petitioner no. 1 appeared before the learned Mamlatdar and informed that the said Krishna Palyekar has expired in the year 1980. The learned Mamlatdar passed an order that the said applicant stood abated for failure to bring the legal heirs of the deceased on record. Thereafter, the widow of the said Krishna and mother of the petitioner no. 1 Parvati Palyekar filed a fresh application for registration as a mundkar which was registered as case No. MND/GUIRIM/12/88. After holding an inquiry, by an order dated 29.12.1992, the learned Mamlatdar held that she was not a mundkar but a caretaker of the suit dwelling house and dismissed the application for registration. In the meantime, the said Parvati Palyekar, also expired and the legal heirs of Parvati including the petitioner nos. 1 and 2 preferred an appeal before the learned Collector of North Goa which the learned Collector after hearing both the parties by judgment and order dated 24.09.1996 dismissed the said appeal holding that the original applicant Parvati was not a mundkar of the suit dwelling house. Aggrieved by the said judgment of the Collector, the legal heirs of Parvati including the petitioner nos. I and 2 filed a Mundkar Revision Application No. 4/99 before the learned Tribunal which was dismissed by coming to the conclusion that the petitioners were not mundkars of the suit dwelling house but caretakers. The legal heirs of Parvati preferred a Writ before this Court being Writ Petition No. 115 of 2001 which was dismissed by this Court summarily by an order dated 20.04.2001 thereby confirming the order passed by the authorities below. The Respondents thereafter filed a Special Civil Suit No. 248/98 in the Court of the learned Civil Judge Senior Division, Mapusa, for eviction of the legal heirs of the said Krishna Palyekar which was decreed by judgment and decree dated 09.11.2001. However, the petitioners thereafter, filed an application under Section SA of the said, Mundkar Act for a declaration in their favour of mundkarial rights in respect of the dwelling house bearing No. 42/2 (old) and 265 (new) registered as case No. MND/SR/NOV/4/2001 in the Court of Mamlatdar of Bardez at Mapusa. In the said application filed under Section SA of the Mundkar Act, the respondents raised preliminary objections dated 21.12.2001 contending that the application is hit by doctrine of res judicata and limitation and therefore, the same is to be rejected. The learned Mamlatdar after hearing the arguments on behalf of both the parties dismissed the preliminary objections by order dated 30.09.2002. The respondents preferred two revisions before the learned Dy. Collector who by a common order dated 27.04.2005 held that doctrine of res judicata is applicable and allowed the preliminary objections by setting aside the order of the learned Mamlatdar dated 30.09.2002. The petitioners thereafter preferred two revision applications before the lear
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