LUIZA FERNANDES Vs. STATE OF GOA

JUDGEMENT

(1.) HEARD. The petitioner challenges order dated 17. 9. 1990, as well as the order passed on 31. 5. 1991 passed by the respondent No. 2 under the provisions of the Goa Mundkars (Protection from Eviction ) Act, 1975 (hereinafter, called as "the said Act" ).

(2.) THE petitioner is a co-owner of the property bearing Survey No. 148/21 situate at Calangute. The property comprised of coconut grove, wherein the respondent No. 3 and her late husband by name Alex Fernandes had raised a hut covering an area admeasuring 150 sq. metres, which was noticed by the petitioner while she had been to the property on 31. 3. 1977. The petitioner thereupon filed the Civil Suit No. 63/97/b in the Court of Civil Judge, Senior Division, Mapusa for demolition of the said structure and for restoration of the land to its original condition. In the written statement filed by the respondent No. 3 and her husband, they raised issue of mundkarship under the said Act and consequently, the issue was referred by the trial Court to the Mamlatdar for its adjudication in terms of the said Act. When the matter came up before the Mamlatdar on two occasions, the respondent No. 3 failed to appear before the Mamlatdar Court and consequently, the Mamlatdar by his order dated 15/4/87 declared that the respondents No. 3 to 6 were not the mundkars under the said Act. The suit proceeded ex parte on account of failure on the part of the respondent No. 3 to appear before the Civil Court also. Ultimately, the Civil Court by Judgment dated 7. 4. 1988 ordered demolition of the construction which was carried out by the respondents No. 3 to 6 in the said property. The petitioner thereupon filed the execution proceedings, wherein the respondents No. 3 to 6 raised the plea that no demolition should be carried out as the parties had entered into an agreement for settlement whereby the respondents No. 3 agreed to purchase the suit structure and the property. Consequently, the agreement to that effect was entered into. However, the respondent no. 3 did not comply with the terms of the said agreement and the petitioner pressed for execution of the decree. Thereupon, the respondents No. 3 to 6 objected to the execution of the decree contending that the agreement was not genuine and further that the respondents are mundkars under the said Act. After necessary inquiry by the executing Court, it decided to proceed with th the execution and an order to that effect was passed on 12 June, 2001. Meanwhile, the application filed by the respondent No. 3 for her registration as mundkar was processed through and the Mamlatdar by his Order dated 17. 9. 1990 declared the respondent No. 3 as mundkar in respect of the house in the property. The respondent No. 3 further proceeded to initiate purchase proceedings under the said Act and, st thereafter, Mamlatdar passed the purchase Order dated 31 May, 1991 in favour of the respondent No. 3. Having learnt about the same, the petitioner filed an appeal before the Collector along with an application for condonation of delay, but the same was dismissed on 22. 1. 1999. The petitioner, thereafter, filed a suit for declaration that the orders obtained by the respondents in 1990 as well as in 1991 regarding declaration and purchase of the property to be declared as null and void. However, realising the fate of the suit, in view of the provisions of law comprised under Section 31 of the said Act, the present petition was filed and thereafter, the suit was withdrawn.

(3.) AT the time of issuance of Rule in the present petition, the matter relating to the preliminary objections on the part of the respondents on the ground of availability of alternative efficacious remedy to the petitioner as well as laches on the part of the petitioner in approaching this Court in writ jurisdiction, were kept open for being dealt with at the time of final disposal.