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2003 Supreme(Bom) 1401
BOMBAY HIGH COURT AT PANAJI, GOA
A.M. KHANWILKAR AND P.V. HARDAS, JJ.
Vasudeo Rajendra Deshprabhu - Petitioner
Versus
State of Goa and others - Respondent
Writ Petition No. 86 of 1997
Decided On : 16th December, 2003
Advocate Appeared:
V.S. Nadkarni Senior Advocate with Shri Y.V. Nadkarni, Advocate, for the petitioner
Shri H.R. Sharne, Government Advocate, for the respondent Nos. 1 and 2; Non for the respondent No.3.
A law that treats similarly placed persons differently and dissimilarly placed persons equally is ultra vires Article 14 of the Constitution of India.
Headnote:
MUNDKAR (PROTECTION FROM EVICTION) (AMENDMENT) ACT, 1993 AND 1995 - CONSTITUTIONAL VALIDITY - ARTICLES 14, 13(2), 300-A, 31-A, 31-B, 31-C - GOA, DAMAN AND DIU MUNDKARS (PROTECTION FROM EVICTION) ACT, 1975 (PRINCIPAL ACT) - SECTIONS 2(I)(I), 9, 12, 15, 16 - CHALLENGED - AMENDMENT ACT OF 1993 - SECTION 15(3) AMENDED - MARKET VALUE OF DWELLING HOUSE PURCHASED BY MUNDKAR TO BE AS PREVAILING ON APPOINTED DAY, I.E. 12TH MARCH, 1976 - AMENDMENT ACT OF 1995 - SECTION 2(I)(I) AMENDED - DEFINITION OF "DWELLING HOUSE" - LAND AROUND AND APPURTENANT TO SUCH DWELLING HOUSE FREEZED AS ON APPOINTED DATE - BOTH AMENDMENT ACTS NOT INCLUDED IN NINTH SCHEDULE TO CONSTITUTION OR RECEIVED PRESIDENT'S ASSENT - NOT PROTECTED UNDER ARTICLES 31-A, 31-B OR 31-C - AMENDMENT ACTS CHALLENGED ON GROUND OF BEING HIT BY ARTICLE 14 READ WITH ARTICLE 13(2) OF CONSTITUTION - COURT HELD THAT AMENDMENT ACTS ARE ULTRA VIRES ARTICLE 14 OF CONSTITUTION.
Fact of the Case:
Petitioner challenged the constitutional validity of the Goa Mundkars (Protection From Eviction) (Amendment) Act, 1993, (Goa Act No. 6 of 1995) (31.3.1995) (Amendment Act of 1993) and the Goa Mundkars (Protection from Eviction) (Amendment) Act, 1995, (Goa Act No.2 of 1996) (19.1.1996) (Amendment Act of 1995), on the ground that the said Amendment Acts are ultra vires the petitioner's fundamental rights enshrined under Article 14 read with Article 13(2) of the Constitution of India. Inasmuch as, the mundkar is entitled to indefinitely wait for any number of years and yet exercise his right to purchase the dwelling house at the pegged down price and area freezed as on 12th March 1976, which results in absurd, incongruous unreasonable, unjust arbitrary and discriminatory situation.
Finding of the Court:
The Court held that the impugned Amendment Acts are ultra vires Article 14 of the Constitution of India. The Court further held that the Amendment Acts are not protected under Articles 31-A, 31-B or 31-C of the Constitution of India. The Court also held that the Amendment Acts are hit by Article 14 of the Constitution of India.
Issues: 1. Whether the Goa Mundkars (Protection From Eviction) (Amendment) Act, 1993, (Goa Act No. 6 of 1995) (31.3.1995) (Amendment Act of 1993) and the Goa Mundkars (Protection from Eviction) (Amendment) Act, 1995, (Goa Act No.2 of 1996) (19.1.1996) (Amendment Act of 1995), are ultra vires the petitioner's fundamental rights enshrined under Article 14 read with Article 13(2) of the Constitution of India? 2. Whether the Amendment Acts are protected under Articles 31-A, 31-B or 31-C of the Constitution of India? 3. Whether the Amendment Acts are hit by Article 14 of the Constitution of India?
Ratio Decidendi: 1. The Court held that the impugned Amendment Acts are ultra vires Article 14 of the Constitution of India because they result in treating similarly placed persons differently and dissimilarly placed persons equally. 2. The Court held that the Amendment Acts are not protected under Articles 31-A, 31-B or 31-C of the Constitution of India because they have not been included in the Ninth Schedule to the Constitution or received the assent of the President of India. 3. The Court held that the Amendment Acts are hit by Article 14 of the Constitution of India because they peg down the purchase price and area of the dwelling house, which results in treating similarly placed persons differently and dissimilarly placed persons equally.
Final Decision: Petition allowed.
Khanwilkar, J.-By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the constitutional validity of the Goa Mundkars (Protection From Eviction) (Amendment) Act, 1993, (Goa Act No. 6 of 1995) (31.3.1995) (hereinafter referred to as "the Amendment Act of 1993") and the Goa Mundkars (Protection from Eviction) (Amendment) Act, 1995, (Goa Act No.2 of 1996) (19.1.1996) (hereinafter referred to as "the Amendment Act of 1995"), on the ground that the said Amendment Acts are ultra vires the petitioner's fundamental rights enshrined under Article 14 read with Article 13(2) of the Constitution of India. Inasmuch as, the mundkar is entitled to indefinitely wait for any number of years and yet exercise his right to purchase the dwelling house at the pegged down price and area freezed as on 12th March 1976, which results in absurd, incongruous unreasonable, unjust arbitrary and discriminatory situation.
2. Briefly stated the petitioner has approached this Court asserting that the petitioner has over a dozen cases of mundkar pending before the Court of the learned Mamlatdar or Joint Mamlatdar in Pernem. Respondent No.3 is allegedly claiming to be mundkar of a dwelling house in the petitioner's property bearing survey No. 485/6 of Pernem Taluka. To provide for better protection to mundkars against eviction from their dwelling houses, for granting them right to purchase the same and to make certain other provisions related thereto, the Goa. Daman and Diu Mundkars (Protection from Eviction) Act. 1975 (Act No. 1 of 1976) (hereinafter referred to as "the Principal Act"), was enacted which came into force with effect from 12th March, 1976. which is the appointed date. The historical background and the objects and reasons for which this enactment came into being as well as the scheme of the relevant provisions thereof has already been expounded by this Court in 1998 (1) Goa LT 100 in the case of Kum Maria Eliza Marques v. Shri Madhukar M. Moraskar and others and in 2001 (1) Goa LT 213. Aggrieved Bhatkars' Association and others v. State of Goa and others. It is not necessary for us to dwell upon the entire scheme of the enactment. Suffice it to mention that Section 15 of the Act provides for right of mundkar to purchase the dwelling house and Section 16 provides for procedure for purchase under Section 15. Section 15 "as it appeared in the Principal Act", reads thus :
"15. Right of mundkar to purchase the dwelling house.-(1) Notwithstanding anything to the contrary contained in any law for the time being in force a mundkar shall subject to the provisions of this Act have the right to purchase the dwelling house occupied by him.
(2) The maximum extent of land round or appurtenant to the dwelling house which a mundkar is entitled to purchase under this section shall be as indicated under sub-clause (1) of clause (i) of Section 2.
(3) The purchase price payable by the mundkar for his dwelling house shall be the market value of the dwelling house purchased and the improvement thereon other than the improvement if any belonging to the mundkar :
Provided that, when the house hut or any structure with its materials belong. wholly or partly, to the mundkar the corresponding value shall be deducted from the market value and, in such case the purchase shall be the balance left after deducting the corresponding value .from the market value :
Provided further that when a mundkar has been permitted to occupy the dwelling house by the bhatkar for the purpose of cultivation of or for the purpose of watching and protecting, an agricultural land of the bhatkar and is actually rendering such service and continues to render such service with or without remuneration or where a mundkar is an agricultural labourer or a village artisan, then the purchase price payable by such mundkar and a member of his family shall be twenty per cent of the market value payable.
(4) The purchase price payable under sub-section (3) in respec
