VASUDEO RAJENDRA DESHPRABHU Vs. STATE OF GOA

JUDGEMENT

(1.) BY this Writ Petition under Article 226 of the Constitution of India, the petitioner has challenged the constitutional validity of the Goa Mundkars (Protection From Eviction) (Amendment) Act 1993, (Goa Act No.6 of 1995) (31.3.1995) (hereinafter referred to as "the Amendment Act of 1993") and the Goa Mundkars (Protection From Eviction) (Amendment) Act, 1995, (Goa Act No.2 of 1996) (19.1.1996) (hereinafter referred to as "the Amendment Act of 1995"), on the ground that the said Amendment Acts are ultra vires the petitioner's fundamental rights enshrined under Article 14 read with Article 13(2) of the Constitution of India. Inasmuchas, the mundkar is entitled to indefinitely wait for any number of years and yet exercise his right to purchase the dwelling house at the pegged down price and area freezed as on 12th March, 1976, which results in absurd, incongruous, unreasonable, unjust, arbitrary and discriminatory situation.

(2.) BRIEFLY stated the petitioner has approached this Court asserting that the petitioner has over a dozen cases of mundkar pending before the Court of the learned Mamlatdar or Joint Mamlatdar in Pernem. Respondent no.3 is allegedly claiming to be mundkar of a dwelling house in the petitioner's property bearing survey no.485/6 of Pernem Taluka. To provide for better protection to mundkars against eviction from their dwelling houses, for granting them right to purchase the same and to make certain other provisions related thereto, the Goa, Daman and Diu Mundkars (Protection From Eviction) Act, 1975 (Act No.1 of 1976) (hereinafter referred to as "the Principal Act"), was enacted, which came into force with effect from 12th March, 1976, which is the appointed date. The historical background and the objects and reasons for which this enactment came into being as well as the scheme of the relevant provisions thereof, has already been expounded by this Court in 1998 (1) Goa L.T. 100 in the case of Kum. Maria Eliza Marques vs. Shri Madhukar M. Moraskar & Ors., and in 2001 (1) Goa L.T. 213, Aggrieved Bhatkars' Association & Ors. Vs. State of Goa & Ors. It is not necessary for us to dwell upon the entire scheme of the enactment. Suffice it to mention that Section 15 of the Act provides for right of mundkar to purchase the dwelling house and Section 16 provides for procedure for purchase under Section 15. Section 15 "as it appeared in the Principal Act", reads thus:

(3.) ON the other hand, Shri Bharne for the respondents, contends that the Principal Act has been held to be a piece of legislation relating to agrarian reforms and inserted in the Ninth Schedule to the Constitution of India. He submits that having regard to the laudable objects of the Act the challenge to the provisions of such enactment will have to be viewed in that perspective. Shri Bharne fairly submits that from the record it is not possible to establish that the Amendment Acts of 1993 and 1995 have received presidential assent or that they have been included in the Ninth Schedule of the Constitution. He submits that in any event, the argument regarding the Amendment Acts being ultravires Article 14, is not available to the petitioner. According to him that issue is already concluded as a Division Bench of this Count in the case of Aggrieved Bhatkars Association (supra) has held the Amendment Acts to be intravires the Constitution. He submits that in view of the exposition in the case of Minoo Framroze Balsara vs. the Union of India & Ors., AIR 1992 Bom. 375, specially paragraph 14, it is not open for this Court to go into the question of validity of the same enactments merely because some new ground is pressed into service. Shri Bharne further contends that the issue as to whether the State is bound to pay compensation in cases of deprivation of property under law made under Article 300-A is also no more res integra. According to him, the related question is what is the criteria for determination of quantum of compensation and whether the market value of the property acquired by the State is to be paid. Shri Bharne has placed reliance on the decision of our High Court in the case of Basantibai Fakirchand Khetan & Ors. vs. State of Maharashtra & Anr., reported in AIR 1984 Bom. 366, wherein the provisions of the Maharashtra Housing and Area Development Act, 1976, were challenged, providing for compensation being hit by Article 300-A, notwithstanding the repeal of Articles 19(1)(f) and 31(2) of the Constitution of India. He submits that this decision was reversed by the Apex Court in the case of State of Maharashtra & Anr. vs. Basantibai Mohanlal Khetan & Ors., reported in AIR 1986 S.C. 1466. He has also placed reliance on the decision of the Full Bench of the Kerala High Court in the case of Smt. Elizabeth Samuel Aaron & Ors. vs. State of Kerala & Ors., reported in AIR 1991 Ker. 162, to contend that the argument that right to adequate compensation remains the basis of Article 300-A of the Constitution, has been negatived. The learned counsel has also placed reliance on the decision of the Apex Court in the case of Jilubhai Nanbhai Khachar etc. vs. State of Gujarat & Anr., reported in AIR 1995 S.C. 142, to contend that whilst interpreting Article 300-A of the Constitution of India the Apex Court repelled the challenge to the constitutionality of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982. He has placed reliance on the observation in the said decision which deal with the argument that considerable time kept for payment and loss of rupee value would render the compensation payable illusory. That contention was negatived by the Apex Court and on the same analogy the grievance of the petitioner in this petition will have to be rejected. Shri Bharne contends that different Acts may provide different principles relating to the payment of compensation and in the context of the object of extinguishing rights of bhatkars in the present enactment, challenge under Article 14 of the Constitution cannot be countenanced, even if the purchase price provided in Section 15(3) may not correspond to fair value or market value. Learned counsel placed extensive reliance on the decision of this Court in the case of Kum. Maria Eliza Marques vs. Madhukar' M. Moraskar & Ors., (supra), which elaborately deals with the history and objective behind the enactment of the Principal Act; as well as the decision reported in the case of Aggrieved Bhatkars' Association (supra), to contend that the challenge to the validity of the Amendment Acts was not open as that has already been negatived in this Judgment. Learned counsel has also placed reliance on the decision of the Apex Court in the case of D.C. Bhatia & Ors. vs. Union of India & Anr., reported in 1995 (1) S.C.C. 104, to contend that the Court cannot consider whether the cut-off point provided by legislation has been done on an understandable basis and the validity of the provisions cannot be questioned on the ground of lack of legislative wisdom. He submits that classification need not be with mathematical exactitude as the Legislature ought to be given considerable latitude for making classification having regard to the surrounding circumstances and facts, moreover when it is well-settled that there is always a presumption as to the constitutionality of the legislation. According to him, the petitioner has not discharged the burden of demonstrating the impugned Amendment Acts as being unconstitutional in any manner.