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2023 Supreme(Online)(Bom) 23863
BOMBAY HIGH COURT
BHARAT P. DESHPANDE, J
Cyril Sequeira – Appellant
Versus
Victor Joao Baptista Sequiera – Respondent
Writ Petition No.182 of 2021
For the Appellants/Petitioners: Mr. Sudin Usgaonkar, Mr. Sukra Usgaonkar, Ms. T. Mashelkar, Ms. Pooja Naik
For the Respondents: Mr. Dhaval Zaveri
The Mundkar Act protects only those individuals occupying as mundkars prior to the appointed date, with no scope for claims based on later inductions under the Act.
Headnote:(A) Goa Mundkars (Protection from Eviction) Act, 1975 - Definition of 'Mundkar' under Section 2(p) - Claim for mundkarship rejected as not established prior to appointed date for protection from eviction. (Paras 76, 77)
(B) Legal interpretation of terms 'fixed habitation' and 'appointed date' crucial in determining mundkarship rights. A person must prove lawful residence prior to the appointed date under Section 2(p) and cannot claim rights post that date based solely on landlord consent. (Paras 75, 84)
Facts of the case:
The petitioner claimed mundkarship for property previously owned by his uncle, asserting he resided there since 1989 under his uncle's consent. Disputes arose after the uncle executed a will in favor of the respondent, leading to the petitioner's claim being rejected by three authorities for failure to demonstrate residence before the appointed date.
Findings of Court:
The court ruled that the petitioner failed to prove that he was occupying the property as a mundkar on the appointed date or earlier and was thus not entitled to claim rights under the Mundkar Act.
Issues: Can a person inducted after the appointed date claim mundkarship? The court found that the intention and timing of induction played a pivotal role.
Ratio Decidendi: The court emphasized that the interpretation of the 'appointed date' is essential for establishing claims of mundkarship, limiting new claims post-enactment of the 1976 amendment which did not intend to create new rights after that date.
Result: Petition rejected.
| Table of Content |
|---|
| 1. petitioner's claim of mundkarship given personal history. (Para 4 , 5 , 6) |
| 2. arguments for the legality of mundkarship despite the appointed date. (Para 8 , 9) |
| 3. respondent's counterarguments refuting mundkarship claim. (Para 12 , 13 , 14) |
| 4. rejoinder highlighting the petitioner's perspective on induction. (Para 18 , 19) |
| 5. analysis of the legislative history and implications on the case. (Para 20 , 21 , 24 , 25) |
| 6. legal interpretation of the appointed date's significance. (Para 68 , 69 , 70) |
| 7. final court observations on the legitimacy of the mundkarship claim. (Para 84) |
JUDGMENT:
1. Rule. Rule is made returnable forthwith. With the consent of the learned Counsel appearing for the parties the matter is taken up for final disposal at the admission stage.
2. The petitioner is hereby challenging the judgment and order dated 18/10/2019 passed by the learned Administrative Tribunal in Mundkar Revision Application No.17/2018 wherein the learned Tribunal rejected revision and confirmed the impugned judgment passed by the authorities below.
3. An interesting question cropped up in the present petition which reads thus:
“Whether a person who was lawfully inducted in the house after the appointed date and had a fixed habitation, can claim mundkarship?”
FACTS OF THE CASE:-
4. In nutshell, few facts which led to the present petition are thus:
5. The property known as 'GOLNA' survey No.39/5 exist in village Pomburpa at ward Golna. There is residential house in this property bearing No.41/5. Originally this property was belonging to Rev. Fr. Pactricio Sequiera who was also known as Patrick Sequeira. The said Patric Sequeira was a clergyman and therefore a bachelor. He expired on 22/10/2002. The petitioner is the nephew of the said Patrick Sequeira. The respondent Victor Sequiera is the brother of the petitioner and also a nephew of said Patrick.
6. It is specific case of the petitioner that Fr. Patrick Sequeira inducted the petitioner in the said house on 31/12/1989 and since then the petitioner along with his family members is residing and occupying the said house and also enjoying the suit property. Subsequently, the respondent/brother of the petitioner by name Victor, claiming ownership of the said house on account of a Will dated 18/11/1993 executed by Fr. Patrick Sequeira in his favour, filed a suit bearing Regular Civil Suit No. 108/2003 claiming relief of permanent and mandatory injunction against the petitioner. The petitioner appeared before the Civil Court and filed his written statement thereby raising a plea of mundkarship. Accordingly, the learned Civil Court framed the issue of mundkarship and referred it to the Mamlatdar of Bardez at Mapusa.
7. The Joint Mamlatdar – III of Bardez, Mapusa vide its judgment dated 23/06/2015 answered the issue of mundkarship in negative. The petitioner therefore filed an appeal before the Deputy Collector and SDO, Mapusa. The said appeal was dismissed vide judgment and order dated 18/07/2018, thereby confirming the order of the learned Joint Mamlatdar. The petitioner thereafter preferred a revision before the Administrative Tribunal who by its impugned judgment and order dated 18/10/20919 rejected the revision thereby confirming the orders of the authorities who negated the claim of mundkarship of the petitioner.
SUBMISSIONS OF THE PETITIONERS:-
8. Mr Usgaonkar, learned Senior Counsel appearing for the petitioner first of all claimed that all the authorities erred in concluding that since the petitioner was not inducted prior to 1976, when the Mundkar Act came into force, such claim cannot be entertained. He forcefully submitted that after the amendment of 1976, there was a major change in the definition of “Mundkar” which clearly goes to show that there was no prohibition of creating mundkarship or inducting any person as mundkar by the landlord even after the Act came into force. According to him, the conditions incorporated in the Act required to be fulfilled. Firstly, mundkar must hav
