VASUDEV PANDURANG NAIK Vs. KRISHNA VITHOBA XETE TILVE

JUDGEMENT

(1.) By this petition under articles 226 and 227 of the Constitution of india the petitioners take exception to judgment and Order dated 3-7-2001 passed by the Administrative Tribunal, Goa at Panaji in mundkar Revision Application No. 107/2000. During the pendency of this petition, original respondent No. l expired and his legal representatives have been brought on record.

(2.) Briefly, the facts which are relevant for the disposal of the petition are as under :-The petitioners herein filed an application for declaration of mundkarship bearing Case No. MUND/19/1996 before the mamlatdar of Tiswadi Taluka, Panaji for declaration under Section 8a of the Goa mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Act) against rui Alvaro Francisco Ribeiro do Santana alias rui Rebeiro do Santana, the legal representative of Armindo D'souza, the opponent in the said case. Upon being served with the notice, it was brought to the notice of the Mamlatdar that the property in which the house in respect of which the petitioners/ applicants claimed mundkarship was sold to the original respondents No. l and 2 in this petition. Thereafter the original respondents no. l and 2 were brought on record as opponents. The opponents in the said case filed an application dated 11-12-1998 by way of preliminary objection stating that the applicants have already been declared mundkars in respect of the house situated in the property surveyed under Chalta No. 45 of p. T. Sheet No. 109 vide Order dated 19-11-1984 in Case No. MND/reg/2648/84. The opponents on this ground claimed that the application was liable to be dismissed. They also sought liberty to file detailed reply in the event the application filed by the opponents was held to be not maintainable. Along with the application filed by the Applicant No. 1, the statement made by him as well as the Judgment dated 19th November, 1984 passed by the mamlatdar in Case No. MND/reg/2648/84 were also produced. After hearing the parties, the Mamlatdar by Order dated 30-11-1999 upheld the objection raised by the opponents and dismissed the application filed by the applicants. The Mamlatdar held that since the applicants were mundkars of the house situated in Chalta No. 45 of P. T. Sheet No. 109 and they have been declared as such by judgment and Order dated 19-11-1984, the application filed for declaration was not maintainable. This Order was challenged by the petitioners herein by filing appeal before the Deputy Collector at Panaji which was registered as Case No. MUND/dyc/appl/49/ 99. The Deputy Collector, after hearing both the sides, remanded the matter to the mamlatdar for holding inquiry as contemplated under the Act. While remanding the matter, the appellate authority also gave finding that the appellant No. l was not having mundkarial house in the plot of land bearing Chalta No. 45 of T. P. Sheet No. 109 of Panaji city and therefore the Judgment and Order dated 19-11-84 could not be enforced in law being inoperative and non-existing. This Judgment passed by the Deputy Collector was challenged by the opponents by filing revision application to the Administrative Tribunal which was registered as Mundkar Revision Application no. 107/2000. The Administrative Tribunal by the impugned Judgment and Order dated 3-7-01 set aside the Judgment and Order passed by the Deputy Collector and maintained the order passed by the Mamlatdar. This Judgment is the subject matter of challenge in the present petition.

(3.) Mr. Kantak, the learned advocate appearing on behalf of the petitioners, submitted that the Respondent no. 3 committed jurisdictional error in setting aside the Judgment more particularly the operative part of the Judgment passed by the deputy Collector. Mr. Kantak fairly conceded that the Deputy Collector could not have given a finding regarding mundkarial right in respect of the house situated in Chalta No. 45 of P. T. Sheet No. 109. But according to him the Deputy collector was absolutely justified in remanding the matter to the Mamlatdar for inquiry. He further submitted that in terms of the Mundkars act and Rules framed thereunder, more particularly having regard to Rule 14, sub-rules (7) , (8) and (9) , no fault could be found with the operative part of the order passed by the deputy Collector. The learned Counsel invited my attention to a Division Bench Judgment of this Court in the case of Smt. Gulabi Sangtu devidas Vs. Smt. Prema Govind Gaonkar reported in 1995 (1) Goa. L. T. 154 in which this court had held that the scope of an inquiry under Section 29 and under Section 8-A of the act is entirely different. According to the learned Counsel the Mamlatdar had committed jurisdictional error in allowing the application filed by the opponents without holding an inquiry as contemplated under the Rules. According to the learned counsel, the proper course would be to set aside both the judgments passed by Administrative Tribunal as well as Deputy Collector as well as the Order passed by the Mamlatdar and remand the matter to the Mamlatdar for holding inquiry upon the application filed by the petitioners.