JANARDHAN J SHINKRE Vs. ANA FRANCISCA FERNANDES

JUDGEMENT

(1.) THIS petition is styled as a petition under Articles 226 and 227 of the Constitution of India which prays for a writ of certiorari or any other writ, direction or order for quashing the three orders made by respondents 2, 3 and 4 in proceedings No. MAM/mund/reg-PRIOL/539/86. Factual matrix is necessary to be stated for better appreciation of the grievance involved in the present petition. Respondent No. 1 Ana Francisca Fernandes is the widow of Josa Fernandes. As soon as the Goa, Daman and Diu Mundkars (Protection from Eviction), Act, 1975 was brought into force some time on 12th March 1976 the late husband of the first respondent made an application before the Joint Mamlatdar, Ponda Taluka for registering him as a Mundkar in the register to be maintained by the Mamlatdar under the provisions of section 29 of that Act. This application was registered as Case No. JM/mund/priol/192/85. Though it appears that the application was made some time in the year 1978, nothing was heard of this case. Jose Fernandes died some time in the year 1983. A notice addressed to Jose Fernandes by the Joint Mamlatdar was received some time in August 1985 by his widow and children calling upon the deceased to appear before him on 29th August 1985. It is common ground that the son appeared before the Mamlatdar and told the Mamlatdar that his father died about a year ago. On that the Mamlatdar passed an order that since heirs are not brought on record the application filed by Joao Fernandes has abated.

(2.) ON 30th August 1985 the first respondent Ana moved a fresh application for registration as a mundkar in terms of section 20 read with section 29 of the Mundkar Act. This was registered as a case bearing No. MAM/mund/rec-PRIOL/539/86. However, it is relevant to note that in this application Ana mentioned that her husband had earlier filed an application but he was served with a notice after his death. No sooner a notice was issued on this application of Ana, the petitioner, who is Bhatkar, raised an objection that the application is not maintainable as the same is time barred. The Mamlatdar by the order dated 22nd June 1987 held that there is no bar for Ana filing a fresh application even though her husbands application was held to have been abated on his death. He held that such application does not attract the principle of res judicata because her husbands application was not decided on merits. This order was challenged by the petitioner before the Additional Collector in Case No. Mund/ac/rev/185/ who dismissed the same by his order dated 29th August 1989 holding that he is unable to fault with the order of the Mamlatdar. The matter was thereafter taken in revision before the Administrative Tribunal in Mundkar Revision Application No. 62 of 1989 and the Tribunal by its order dated 20th September 1990 on an elaborate consideration held that the orders of the Mamlatdar and Additional Collector cannot be faulted with and the application of first respondent Ana is maintainable. This is how the three orders of the authorities below are now challenged in the present writ application.

(3.) SHRI Tamba, learned Counsel appearing for the petitioner says that the doctrine of res judicata has been improperly invoked in holding that the application filed by the first respondent Ana is maintainable. According to him the sole question for the authorities to consider was after the proceeding abated on the death of her husband deceased Jose Fernandes, in the absence of heirs and legal representatives having been brought on record or obtaining an order for setting aside the abatement, the application of the first respondent was not maintainable and this, according to him, is a jurisdictional error committed by the three authorities. He now says that the application instituted by Ana dated 30th August 1985 cannot also be treated as an application for setting aside the abatement in the absence of prayer nor an application to bring Ana on record. He therefore, urged that whatever application filed by Ana on 30th August 1985 must also be held to be time barred.