PREMA GOVINDA GAUNCAR Vs. ADMINISTRATIVE TRIBUNAL FOR GOA

JUDGEMENT

(1.) BY the present writ petition filed under Article 227 of the Constitution the petitioner seeks to challenge the judgment of the Administrative Tribunal, dated 19th May, 1989 in Mundkar Revision Application No. 14 of 1987 which has reversed the order of the Mamlatdar of Canacona, dated 10th January, 1986 in Case No. MUND/2/1985 and which has been affirmed by the order of the Additional Collector of Goa, dated 30th January, 1987 in Case No. MUND/ac/apl/14/86.

(2.) ON 21-6-1978 one Sangtu Devidas filed an application to the Mamlatdar of Canacona to get himself registered as Mundkar under section 29 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the Act) in respect of the suit house, being House No. 181, located in the petitioners property at Canacona. The case was registered as Case No. MMD/can/8/78. By order dated 27th February, 1982 the Joint Mamlatdar of Canacona dismissed the application against which Sangtu did not file any appeal or revision. Later on after the death of the petitioners husband the said Sangtu moved another application before the Mamlatdar of Canacona this time under section 8-A of the Act for seeking an order declaring him as mundkar. The said application was registered as MUND/2/85. During the pendency of the said case Sangtu died and his legal representatives who are respondents Nos. 4 to 9 (hereinafter called the respondents) were brought on record. However this application was also dismissed by the Mamlatdar by order dated 10th January, 1986 on the ground that the application was barred by res judicata. An appeal was filed by the respondents against the dismissal of the order to the Collector of Goa. The appeal was registered as MUND/ac/apl/14/86. Thereafter the Additional Collector by order dated 30th January, 1987 dismissed the said appeal also on the same ground that the earlier application made by the late original petitioner had been decided against him. The respondents then challenged the aforesaid order of the Additional Collector before the Administrative Tribunal which by the impugned order dated 19-5-1989 allowed the revision filed by the respondents and unsettled the order of the Mamlatdar by remanding the case back to him for further action.

(3.) IT was first submitted by Shri B. DCosta, learned Counsel for the petitioner, that the finding given by the Administrative Tribunal in the impugned judgment that there is nothing from the records to show that the earlier decision of the Mamlatdar dated 27-2-1982 was pronounced on merits, that they could not find out whether the mandatory inquiry under section 29 (6) of the Act was held by the Mamlatdar in the old case and that anything which is not decided on merits cannot form the basis of res judicata in this case is manifestly and altogether wrong and unjustified. In this respect the learned Counsel invited my attention to the relevant provisions dealing with applications for registration of mundkars. Rule 21 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, 1977 (hereinafter called the Rules) provides for procedure for maintenance and preparation of register of Mundkar under section 29 of the Act. In its sub-section (3) recites that after the order of the Mamlatdar, under sub-section (6) of section 20, for registering the Mundkar has become final or his order rejecting the application has been reversed in appeal or revision and directions are given to register the applicant as Mundkar, the name of such person shall be entered in the register under sub-rule (2 ). In its turn section 29 of the Act commands the Government to cause a register of Mundkars to be prepared and maintained in the prescribed manner thereof. In its sub-section (4) it provides that the Mamlatdar shall, before the preparation of the register, publish a notice, in every revenue village inviting applications from the Mundkars for registration and to be presented before such date as may be specified in the notice and in case it is found that a Mundkar has failed to apply for such registration the concerned Talathi is empowered to propose to the Mamlatdar to enter the name of such Mundkar in the register of mundkars. In terms of sub-section (5) of section 29 the Mamlatdar on receipt of any application either of the person who seeks to be registered as Mundkar or of the concerned Talathi shall give notice to the Bhatkar or any other person interested in the land in which the dwelling house is situate, calling upon them to file any objections, if any, and requiring them to appear for inquiry into the application. Under sub-section (6) on the date he files a notice or any other date to which the inquiry may be adjourned the Mamlatdar shall hear all such persons who appear and after such inquiry register the Mundkar or reject the application. Under sub-section (8) any person aggrieved by the registration of a Mundkar or by the refusal to register a person claiming to be a Mundkar may, within sixty days from the date of registration or refusal, file an appeal to the Collector. Finally sub-section (9) prescribes that on receipt of an appeal under sub-section (6), the Collector may make an inquiry or cause an inquiry to be made and pass such orders as he deems fit. It follows therefore that the aforesaid provisions clearly provide for an inquiry to be held by the Mamlatdar or by the Collector before a final finding is passed on the petitioners application to register as Mundkar which finding certainly concerns with the main issue which has to be first adjudicated in this application and which is whether a person who makes such application is or not a Mundkar. To be noted also that inquiry is directed to be one under the law by the Mamlatdar or Deputy Collector after giving notice to the opposite party which is either the Bhatkar or any person interested in the land wherein the dwelling house in respect whereof the Mundkar seeks a declaration of his status of mundkarship is located. Shri B. DCosta has also taken me through the order of the Mamlatdar and contended that the order cannot be said as having been passed on technical grounds alone. The learned Counsel urged that the said order may be a wrong decision but by no means appears to have been based on technicalities. That there is a clear finding given in the order which was passed as a logical conclusion derived from certain facts and surmises. The said order was thereafter not challenged by the original petitioner and being so the basic issue of mundkarship which the Mamlatdar was supposed to decide while considering the application of late Sangtu to get himself registered as Mundkar is therefore to be deemed as finally adjudicated on this point.