SANTANA RODRIGUES Vs. FRANCISCO XAVIER FERNANDES

JUDGEMENT

(1.) Rule. Rule made returnable forthwith with the consent of the learned Counsel appearing for the parties. Learned Counsel appearing for the Respondents, waive notice.

(2.) The question involved is, whether the Government of Goa, while exercising appellate power under Sec. 7 of the Goa Regularization of Unauthorized Construction Act 2016, (Act of 2016, for short), condone the delay in case appeal under Sec. 7 of the Act of 2016 is filed beyond sixty days, from the date of passing such order or it excludes the applicability of Sec. 29 of the Limitation Act, 1963 and in consequence of Sec. 5 of the Limitation Act ?

(3.) That Mr. Constancio Fernandes, husband of Petitioner, filed an application dtd. 19/9/2006, claiming to be mundkar, under Sec. 29(4) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. His late father Shri Augustinho Fernandes was original Mundkar of N. P. Saukar (Bhatkar) and others in respect of house no. 37, situated at Borim, Ponda, Goa, in plot no. 14 in property surveyed under survey no. 166/1 of Village Borim, Ponda, Goa. Shri Augustinho Fernandes and Eliza Fernandes, expired in 1979 and 1977 respectively leaving behind four sons and one daughter without being registered as Mundkars of N. P. Saukar in respect of House no. 37. It was Constancio's case that he along with his brothers and sisters, inherited the mundkarial rights from their late father and were in peaceful, continuous and uninterrupted possession of the dwelling place. The respondent no.1, brother of Constancio, opposed the application and contended that house no. 37 was constructed by him at his own costs in 1980 with the consent of landlord and the house was in his exclusive possession. He contended that his father expired in 1979 and mother expired in 1977 and they were not declared as Mundkars of Mr. N. P. Saucar (Bhatkar) as they were not residing as a Mundkar of the house. He contended that the house which belonged to his parents, was old house and was damaged to considerate extent beyond repairs and he constructed a new house by taking permission from the Village Panchayat of Borim and that of his Bhatkar, in the year 1980. He also contended that his brothers started residing separately during the lifetime of his parents and before construction of alleged mundkarial house, and that Mr. Constancio Fernandes as well as his other brother and sister have absolutely no right of whatsoever nature in respect of house bearing no. 37. The Mamlatdar of Ponda granted the application and declared Mr. Constancio Fernandes and his brother the respondent no.1 as joint Mundkar, in respect of dwelling house bearing no. 37 in property surveyed under no. 166/1 of Village Borim and further directed name of the Constancio Fernandes and respondent no.1 be recorded in Mundkar register.