ESMERALDA ROSARIO Vs. CORNELIO PEREIRA

JUDGEMENT

(1.) THE respondent No. 1 had filed an application for registration as mundkar under section 29 (4) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the said Act ). The application of the respondent No. 1 was allowed and appeal filed by the appellants was dismissed. In revision filed before the Administrative Tribunal, the said findings of the courts below were reversed. The respondent No. 1 challenged the said Order of the Administrative Tribunal in Writ Petition No. 93 of 1991. The learned Single Judge upheld the orders passed by the Mamlatdar and the Additional Collector and found that the order of the Administrative Tribunal could not be sustained. Accordingly, the order passed by the Administrative Tribunal was set aside and the orders of Mamlatdar and Additional Collector allowing the application of the respondent for registration as mundkar were upheld. The order of the learned Single Judge is challenged before us in this appeal.

(2.) THOUGH there are some Constitutional challenges to the provisions of the said Act, which have been raised by the appellants for the first time in this Letters Patent Appeal, which were not urged before the learned Single Judge, we are not inclined to permit the appellants to urge the said Constitutional challenges in this appeal. However, we make it clear that the appellants may seek their remedy in respect of the said challenges in case the said remedy is available to them. Therefore, in this appeal we shall restrict to the challenge of the appellants to the effect that on the basis of agreement dated 17th November, 1969, the respondent No. 1 cannot claim to be mundkar within the scope and ambit of the said Act.

(3.) LEARNED Advocate Shri S. S. Kantak submitted before us that the agreement in question was entered into when Diploma No. 1952 was in force and under the said Diploma, mundkar was required to render services like watch and ward duties for the purpose of agriculture and the said concept of mundkar as propounded in the said Diploma was retained in the temporary legislation, namely. The Goa, Daman and Diu (Protection of Mundkars, Agricultural Labourers and Village Artisans) Act, 1971, which was finally replaced by the present Act. In the present Act, the rendering of services does not form part of the definition of mundkar. In this background, it is urged by the learned Advocate Shri Kantak that since the agreement in question came to an end only in the year 1984, the respondent could not claim to be lawfully residing in the dwelling house within the definition of section 2 (p) and, obviously, no eviction proceedings could have been instituted against the respondent within one year of the appointed date, since the respondent could not be termed to be a trespasser in occupation of the said dwelling house. His further contention is that the respondent cannot be said to be lawfully residing within the meaning of section 2 (p) since the rights of the respondent were governed by a contract, namely, the agreement which was entered into between the parties, which was to expire only in the year 1984. Accordingly, his contention is that the respondent could not have been registered as mundkar in the circumstances of this case and the order of registration is totally invalid. Shri Kantak relied upon a ruling of the Apex Court in (M. C. Chockalingam and others v. V. Manickavasagam and others) A. I. R. 1974 S. C. 104 in order to demonstrate that the respondent could not be said to be lawfully residing for the purpose of the Mundkar Act.