1. The challenge in this petition is to the concurrent finding about the respondent nos. 1 and 2 being the mundkars of a dwelling house no.80 (1) standing in land survey no.30/19 of village Ponda.
2. The respondent nos.1 and 2 are husband and wife. The petitioner is the brother of the second respondent, Shalini Rautella. The third respondent Damodar Kapdi (since deceased) was the Bhatkar. The petitioner is represented by his son Pradeep Naik who is his Power of Attorney holder. The first and the second respondent filed an application under section 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act 1975 (Mundkar Act, for short) before the Mamlatdar on 8/1/1996 in which now deceased Damodar Kapdi was the sole respondent. Within a week of the filing of this application, Damodar sold the property to the fourth respondent, M/s Sungrace Developers Ltd., who was arrayed as opponent no.3 before the Mamlatdar. The petitioner got himself impleaded in these proceedings as the opponent no.2.
3. The case made out by the first and the second respondents was that their marriage took place somewhere in 1967 after which they constructed a dwelling house consisting of one big room, in the property belonging to the bhatkar Damodar Kapdi, bearing house no.80 (1) situated in survey no.30/19 at Ponda. That house was repaired somewhere in 1978. In short it was contended that these respondents are in occupation and enjoyment of the said dwelling house since 1967, i.e soon after their marriage. The said dwelling house is adjacent to the house of Govind Naik (since deceased) who was the father of Narcinva Naik and the second respondent Shalini Rautella. The respondent nos.1 and 2 are residing in the house along with their children with a fixed habitation and are entitled to be declared as mundkars.
4. Now deceased Damodar Kapdi nor his successor M/s. Sungrace Estate and Developers Pvt. Ltd. (i.e respondent no.4) contested the application, which was contested by the petitioner alone. It was contended that the dwelling house in respect of which the respondents are seeking declaration exclusively belongs to the petitioners and he has been registered as mundkar in respect of the same vide order dated 16/10/1985. It was contended that respondent nos.1 and 2 have no right, title or interest whatsoever in the dwelling house or any part thereof. It was contended that the respondents nos.1 and 2 had filed special civil suit no.47/1979 against Damodar Kapdi and Narcinva Naik claiming partition of the suit house which was dismissed on 3/3/1986 which has attained finality. It was contended that the respondent no.2 Shalini had requested for permission to occupy the verandah. She had come along with her minor children as the respondent no.1 was in jail and out of humanitarian ground she was permitted to occupy the verandah. It was thus contended that the application is without any merit.
5. The learned Mamlatdar by order dated 21/8/2002 allowed the application in the following terms :
Applicants Shri Vikramsing Rautella and Smt. Shalini V. Rautella are declared as mundkars of the house bearing No.10
(1) situated at Varkhande bearing survey no.30/19 of Damodar Kapdi and subsequently sold to Sungrace Developers Ltd. attached to the house of opponent. Area of the house and apportioned space of the dwelling house shall be ascertained by site inspection.
5. The petitioner challenged the said order before the Deputy Collector who dismissed the appeal on 28/4/2003. The petitioner filed an application for review which was dismissed on 31/10/2003. The petitioner challenged the said order before the Administrative Tribunal by filing a Mundkar Revision Application No.151/2003 which was dismissed on 25/3/2004. It was thereafter that the petitioner filed Mundkar Revision application no.25/2007 before the Administrative Tribunal challenging the original order passed by the Deputy Collector on 28/4/2003. The Administrative Tribunal has dismissed the said revision application on 7/7/2009 which is subject matter of challenge in this petition.
6. I have heard Shri V. P. Thaly, the learned counsel for the petitioner and Shri S.Y. Thaly, the learned counsel for the respondents. With the assistance of the learned counsel for the parties, I have gone through the records and the impugned orders passed.
7. It is submitted by Shri V. P. Thali, the learned counsel for the petitioner that the petitioner had filed an application for registration as a mundkar on 2/8/1978 and that application was granted on 16/10/1985. It is submitted that the order of registration which raises a presumption is in favour of the petitioner. It is submitted that the suit filed by the respondent nos.1 and 2 claiming partition of the dwelling house has been dismissed, which order has not been challenged. It is submitted that a portion of the house namely the verandah was allowed to be occupied by Shalini and her minor children on humanitarian grounds as the respondent no.1 Vikramsingh was in jail. Shalini being the aunt of Pradeep was so permitted to occupy the verandah on humanitarian ground and they cannot get any right. It is submitted that the application filed by the respondent nos.1 and 2 lacks necessary ingredients to show that they are mundkars. It is submitted that the declaration as a mundkar presupposes that they were inducted by consent of the bhatkar which is neither alleged nor proved. It is submitted that consent of the present petitioners (who are themselves mundkars) is of no consequence. It is submitted that the finding of the Civil Court has not been considered by the Courts below. He, therefore, submits that the impugned orders are patently erroneous requiring interference. Reliance on behalf of the petitioners is placed on the decision in the case of (i) Kumari Maria Eliza Marques Vs. Shri Madhukar M. Moraskar and others (1998) (1) Goa L. T. 100, (ii) Shankar Fatarpenkar (since deceased through LRs) Vs. The Joint Mamlatdar or Bicholim 1991 (2) Goa L. T. 23 (iii) Mitra of Archdiocese of Goa and Daman represented by the Patriarch of the East Indies, Rev. Dr. Raul Nicolau Gonslaves, Panaji Vs. M. K. Vijayaharan (1999) (2) Goa L. T. 97 and (iv) Shri Jeronimo Dias (since deceased) through LRs and others Vs. Shri Jose J. Estiquio de Noronha Cota e Menezes and others. (1997) (1) Goa L.T. 119.
8. On the contrary it is submitted by the learned counsel for the respondent nos. 1 and 2 that the impugned order by which these respondents have been declared as mundkars cannot be challenged by the petitioner, who himself is claiming to be a mundkar of a distinct house from the common bhatkar, namely, Damodar Kapadi. It is submitted that the application has not been contested either by Damodar or the respondent no.4 herein. It is submitted that the Courts below have rightly come to the conclusion that the respondent nos. 1 and 2 have established the claim of mundkarial rights. It is submitted that the order of registration of mundkar has only presumptive value and cannot outweigh an order of declaration. He submits that the dispute involved in the civil suit was distinct than the one involved in the application filed by the respondent under the mundkar act. He submits that the concurrent finding recorded by the three Courts below cannot be said to be perverse and thus this Court may not interfere.
9. I have carefully considered the rival circumstances and the submissions made.
10. At the out set the learned counsel for the petitioner has not pressed the ground about the competence of the Deputy Collector to entertain the appeal, which was raised when the petition was admitted. Even otherwise in view of the Notification dated 1/9/1997 where under, in exercise of the powers conferred under clause (h) of section 2 of the Mundkar's Act, the Dy. Collector, Ponda, is one of the officers appointed to exercise and perform the powers and functions of the Collector, the objection would not survive.
11. Coming to the merits it may be mentioned that the petitioner no.2, Pradeep Naik is also the Power of Attorney holder of the petitioner no.1, who has purchased the sub plotno.4 admeasuring 772 sq.mtrs including the area covered by the mundkarial house which is standing on the land survey no.30/19 from the respondent no.4 under the registered sale deed executed in March 2001. Be that as it may, the issue in the present petition is essentially whether the respondent nos. 1 and 2 have established that they are the mundkars in respect of House No.80(1) standing on land survey no.30/19 which is said to be adjacent to the house of now deceased Govind Naik. Section 2 (p) of the Mundkars Act defines a mundkar as under:
Section 2(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) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer s residence;
(iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and (iv) a person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.
Explanation. A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person.
(q) person includes a joint Hindu Family;
(r) prescribed means prescribed by rules made under this Act;
(s) Provedoria de Assistencia Publica means the Institute of Public Assistance established under the enactment Legislative Diploma No. 1984 dated 14th April, 1960;
(t) village artisan means a person whose principal means of livelihood is the income he derives from working as an artisan in a village.
It can thus be seen that section 2 (p) envisages that the persons claiming to be mundkar resides in the dwelling house with a fixed habitation and with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar. The explanation annexed to section 2 (p) creates a deeming fiction about the consent of the bhatkar, if such person is residing in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or having so initiated such proceedings, does not succeed in obtaining a decree for eviction of such person. A perusal of the judgment of the Administrative Tribunal would show that the Administrative Tribunal has found that the respondent nos. 1 and 2 have been residing in the suit dwelling house since 1967 and the claim of the mundkarship against the original bhatkar Mr. Kapdi is amply proved . The Administrative Tribunal has also found that the deeming provision is applicable in this case. The Courts below have also noticed that the original bhatkar Kapdi did not contest the proceedings.
12. The learned counsel for the petitioner has taken serious exception to the observation of the Administrative Tribunal in para 15 of the order in which the Administrative Tribunal has observed that admittedly the respondents were residing in the suit house with the consent of the petitioner and his wife since 1967 that is prior to the appointed date. It is contended that the consent of the petitioners who were themselves mundkars of Kapdi, would be inconsequential.
13. It can be seen that section 2(p) envisages residence in the dwelling house with a fixed habitation and with the consent of the landlord. The explanation annexed to section 2(p) enacts a deeming provision where the consent of the land lord has to be inferred if the conditions as set out in the explanation are satisfied. On perusal of the impugned judgment of the Administrative Tribunal in my view it has not been clearly brought out or held that the respondent nos. 1 and 2 were residing in the dwelling house with the consent of the then bhatkar Mr. Kapdi. On the contrary in para 15 the Administrative Tribunal has observed that admittedly the respondents were residing in the suit house with the consent of the petitioner and his wife. A consent by a co-mundkar would not be of any consequence. This is one of the issues. The second is whether the verandah where the respondent nos.1 and 2 were allegedly permitted to reside on humanitarian ground can be a common portion between the two mundkarial houses, in as much as there are decisions which hold that the mundkarial house has to be a separate entity by itself (see decision in the case of Maria Marques, supra). In such circumstances the matter will have to be remanded back to the Administrative Tribunal for deciding it afresh, in accordance with law. I am conscious of the fact that the revisional jurisdiction would be limited. However, the existence of the consent by the bhatkar and the requirement of the dwelling house being an entity in itself are factors which go to the root of the matter. The Administrative Tribunal will have to examine the matter afresh in order to find out whether these requirements are satisfied along with any other ground that may be raised. In the result the following order is passed:
i) The petition is partly allowed.
ii) The impugned order of the Administrative Tribunal is hereby set aside. The Revision Application No.25/2007 is restored to the file of the Administrative Tribunal for deciding it afresh in accordance with law.
iii) The parties to remain present before the Administrative Tribunal on 18/11/2016.
iv) Rule is partly made absolute in the aforesaid terms with no order as to costs.