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2018 Supreme(Bom) 2062
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT GOA BENCH
N.M. Jamdar, Prithviraj K. Chavan, JJ.
Agnela Figueira – Appellant
Versus
Vassant Krishna Palyekar – Respondent
Letter Patent Appeal No. 4 of 2013
Decided On : 25-09-2018
Advocate Appeared:
C.A. Ferreira, J.P. Mulgaonkar.
Headnote:
Goa, Daman and Diu Mundkars (Protection from Eviction) Rules 1977 – Rules 14, 16 – Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 – Sections 8A, 29 – Mundkarial Rights – Constitution of India, 1950 – Articles 226, 227 – Single Judge of this Court has by the impugned Judgment and order set aside the order passed by the Administrative Tribunal Goa in Mundkar Revision Applications filed by the Respondents and directed that the application filed by the Respondents under Section 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 be decided expeditiously – By this Letter Patent Appeal, the Appellant has sought to question the correction of the decision of the learned Single Judge. – Administrative Tribunal had held against the Respondents on the ground that once a finding that the Respondents is not a mundkar was rendered against the Respondents in the proceedings under Section 29 of the Act, the Respondent is barred from filing an application under Section 8A of the Act. – Held, Rule 14 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Rules 1977 deals with the manner of conducting an inquiry. – This Rule states that provisions of this Rule will apply to all proceeding under the act except in cases where summary inquiries are prescribed under these Rules. Procedure for summary inquiry is provided for under Rule 16. – The inquiry for maintenance of Registers under Section 29 of the Act, is a summary inquiry, therefore, procedure under Rule 16 is to be followed for that purpose – Contention of Mr. Ferreira, is that in Gulabi inquiry was a summary inquiry which is not so in the present case. This however, will not make a difference as far as position of law laid down is concerned. Merely because Mamlatdar conducted a detailed inquiry akin to an inquiry under Rule 14, will not convert the order passed under Section 29 of the Act to an declaration, as it will remain only an order as to an entry in the Register. – As contained in Section 30 of the Act, the entry will only have presumptive value till it is replaced. – By holding a full fledged enquiry under Section 29 of the Act, when it is not warranted the right conferred by the legislature under Section 8A of the Act, cannot be taken away. In fact to prevent such a mischief that the legislation has specifically provided for a comprehensive procedure for declaration of the right. – Mr. Ferreira, the learned Counsel for the Appellants then contended that we should take a different view or refer the decision of Gulabi to the larger Bench because of the hardship that is caused to the bhatkar from the unscrupulous claimants, who after litigation spanning several decades, again seek to re-agitate the concluded claim resorting to Section 8A of the Act. – Court do not find any reason to take a different view. – Second ground urged by Mr. Ferreira, is that Section 30 will not come into play in the present case as there is no entry in favour of the Respondents. – He submitted that if there is any entry then only there can be a presumptive value and then only there can be substitution of a entry. – He submitted that when an application is rejected under section 29 of the Act by language of Section 30 of the Act recourse cannot be taken under Section 8A of the Act. – Enquiries under Section 8A of the Act and Section 29 of the Act operates differently. – Various enactments provide for both summary and full fledged enquiries. – An adverse decision in summary enquiry may place higher burden on those who seek a declaration subsequently, but it cannot be contended that an application for declaration is barred. – Letter Patent Appeal Dismissed
JUDGMENT :
N.M. Jamdar, J.
1. The learned Single Judge of this Court has by the impugned Judgment and order set aside the order passed by the Administrative Tribunal Goa in Mundkar Revision Applications filed by the Respondents and directed that the application filed by the Respondents under Section 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 be decided expeditiously. By this Letter Patent Appeal, the Appellant has sought to question the correction of the decision of the learned Single Judge.
2. The Administrative Tribunal had held against the Respondents on the ground that once a finding that the Respondents is not a mundkar was rendered against the Respondents in the proceedings under Section 29 of the Act, the Respondent is barred from filing an application under Section 8A of the Act.
3. The predecessor of the Respondents had filed an application for registration as mundkar before the Mamlatdar, Bardez, Mapusa. The Respondent appeared before the Mamlatdar and informed that the predecessor had expired in the year 1980. The Mamlatdar passed an order that the application stood abated for failure to bring the legal heirs on record. The widow and mother of the Respondent filed an application for registration as mundkar. By order dated 29 December 1992, the Mamlatdar held that she was not a mundkar, but a care taker of the dwelling house and dismissed the application for registration. An appeal was filed before the Collector. The appeal was dismissed by Judgment and order dated 24 September 1996. The revision application filed before the Tribunal was dismissed by the Administrative Tribunal so also a Writ Petition by this Court on 20 April 2001. The Appellant filed Special Civil Suit No. 248/1998 in the Court of Civil Judge, Senior Division Mapusa for eviction against the heirs of the original Appellant as well as the respondents. The suit was decreed on 9 November 2001. The Respondent filed an application before the Mamlatdar of Bardez at Mapusa under Section 8A of the Act for declaration in their favour of mundkarial rights in respect of house bearing Nos. 42/2(old) and 268(new).
4. In the application under Section 8A of the Act, the Appellants raised preliminary objections that the application filed by the Appellants under Section 8A of the Act is barred by principle of Res-Judicata, and it is beyond limitation. The preliminary objections were rejected by the Mamlatdar by an order dated 30 September 2002. The Appellants filed two revisions before the Collector. The Collector allowed the preliminary objections by an order dated 27 April 2005. The respondents filed revision applications before the Administrative Tribunal. The Administrative Tribunal dismissed the revision applications by the common judgment and order dated 5 September 2006. The respondents being aggrieved by this order, filed Writ Petition No. 573 of 2006 in this Court.
5. The learned Single Judge F.M. Reis, J, after considering the decision of the Division Bench in the case of Smt. Gulabi Sangtu Devidas vs. Smt. Prema Govinda Gaonkar, (1995) 1 GoaLT 155, concluded that the application under Section 8A of the Act filed by the Respondents could not have been dismissed at the threshold. The learned Single Judge held that the inquiry under Section 29 of the Ac, being a summary inquiry the findings rendered therein will not operate Res-Judicata for registration of the application under Section 8A of the Act to be dismissed on the ground of maintainability. The learned Single Judge held that orders passed by the Collector and Administrative Tribunal not being legal and proper are required to be set aside. By the impugned order the learned Single Judge set aside the order and directed the Mamlatdar to dispose of the application under Section 8A of the Act.
6. We have heard Mr. C.A. Ferreira, learned Advocate for the Appellants and Mr. J.P. Mulgaonkar, learned Advocate for the Respondents.
7. A preliminary objection is raised by Mr. Mulgaonkar,
