GULABI SANGTU DEVIDAS Vs. PREMA GOVINDA GAUNCAR

JUDGEMENT

(1.) An interesting question as to whether the proceedings under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as 'the Act') are maintainable after an order is passed by Mamlatdar under section 29 of the Act rejecting the application for being entered as munkdar in the register of mundkars arises for determination in this Letters Patent Appeal. The facts giving rise to the filing of the appeal are not in dispute and are required to be briefly stated to appreciate the issue which falls for determination.

(2.) Late Sangtu filed application dated June 21, 1978 in the Court of Joint Mamlatdar of Canacona Taluka for entering his name as mundkar in the register to be maintained under section 29 of the Act. The application was dismissed by Mamlatdar by Order dated February 27, 1982 on the ground that the house is not registered in his name in the records of the Village Panchayat. Said Sangtu sought declaration in respect of house situated in the property known as Panna and registered in the Village Panchayat records under No. 101. He did not prefer appeal against the order of the Mamlatdar as prescribed under sub-section (8) of section 29 of the Act. Instead he filed application under section 8-A of the Act before the Mamlatdar for a declaration of being a munkdar in respect of house in dispute. The application was resisted by the respondent landlady on the ground that the application was not maintainable in view of dismissal of application filed under section 29 of the Act. The objection of the jurisdiction of the Mamlatdar to entertain the application found favour and the Mamlatdar by Order dated January 10, 1986 dismissed the application. In the meantime Sangtu expired and his widow and legal representatives present appellants carried appeal as prescribed under section 24 of the Act before the Additional Collector of Goa but the appeal ended in dismissal by order dated January 30, 1987. The appellants thereupon preferred revision application before the Administrative Tribunal, Goa, Daman and Diu. The Administrative Tribunal by order dated May 19, 1989 allowed the revision application and remanded the proceedings to the Mamlatdar for disposal on merits. The Tribunal came to the conclusion that the application under section 29 of the Act was only for registration of mundkarship and the dismissal of that application cannot prevent the appellants from seeking declaration of mundkarship rights under section 8-A of the Act. The Tribunal observed that the proceedings under section 29 and 8-A are different and distinct in scope and purpose.

(3.) Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants, submitted that the learned Single Judge was in error in concluding that the order passed under section 29 of the Act operates as a bar for seeking a declaration of munkdarship rights under section 8-A of the Act. It was urged that the impact of the inquiry under section 29 of the Act is only for the purpose of entering the name of a person as a mundkar in the register maintained under the Act and section 30 of the Act provides that the entries made in the register have only presumptive value. The learned Counsel urged that section 8-A confers a substantial right on the parties to seek a declaration of mundkarship right or to seek a negative declaration that a person in occupation is not a mundkar and the substantive right cannot be denied by reference to the order passed under section 29 of the Act. Mr. D'Costa, learned Counsel appeaing on behalf of the respondents, on the other hand submitted that it is not permissible to institute proceedings for a declaration under section 8-A of the Act after the appellants failed to seek registration of mundkarship rights under section 29 of the Act. The learned Counsel urged that permitting the appellants to re-agitate the question before the same Authority, which had earlier determined proceedings under section 29 of the Act, would be contray to the principles of finality of the orders. Mr. D'Costa submitted that the remedy of the appellants was to file an appeal against the order passed by the Mamlatdar under section 29 of the Act and not to file a separate proceeding under section 8-A of the Act. In view of the rival submissions, the question which requires determination is whether it is open to institute proceedings under section 8-A of the Act after an order is passed by the Mamlatdar under section 29 of the Act