CABRIEL DE SA Vs. BABUSO PEDNEKAR

JUDGEMENT

(1.) THIS Appeal arises from the judgment of the learned Single Judge in Writ Petition No. 4/91 passed on 10th November, 1994, whereby the said writ petition filed against the judgment of the Administrative Tribunal confirming the declaration of the respondent No. 1 as mundkar, was dismissed. The only question that is sought to be raised in the present appeal for our consideration is whether a person lawfully residing in a house with the consent of the owner thereof, but admittedly caretaker of the property in which the said house exists cannot be a mundkar within the meaning of the term "mundkar" under section 2 (p) of the Goa, Daman and Diu (Protection From Eviction of Mundkars) Act, 1975, hereinafter called as the "mundkar Act", particularly in view of Clause (iv) of section 2 (p) of the Mundkar Act.

(2.) THE facts in brief relevant for the decision of this case are that the respondent No. 1 herein filed an application claiming to be mundkar in respect of the house in question. The respondent No. 2 however, by Order dated 15th June, 1983, dismissed the said application and the respondent No. 1 aggrieved by the same, preferred an appeal before the respondent No. 3, who by his Order dated 4th July, 1984, set aside the Order of the respondent No. 2 and allowed the appeal and held respondent No. 1 to be mundkar in respect of the house in question. An attempt by the appellant to get the order of the respondent No. 3 set aside in the revision application before the respondent No. 4 proved futile, as respondent No. 4 dismissed the revision application by Order dated 5th August, 1990 and thereby confirmed the order of respondent No. 3 declaring respondent No. 1 as mundkar in respect of the suit house. The writ petition by the appellant did not yield successful result and hence this appeal.

(3.) BEFORE we proceed to consider the rival contentions in the matter, it is pertinent to note that the respondent No. 2 had dismissed the application of the respondent No. 1, solely on the ground that the respondent No. 1 had admitted that he was residing in the suit house which was built by the ancestors of the appellant herein. In other words, the fact that the house in question was originally built by the ancestors of the appellant was not in dispute and in view of the provisions contained in section 2 (i) of the Mundkar Act at the relevant time, the respondent No. 2 held that the respondent No. 1 was not entitled to claim the benefits under the Mundkar Act since the house did not constitute dwelling house within the meaning of the said term under section 2 (i) of the Mundkar Act. Indeed, till 1985 the term "dwelling house" meant a house in which the mundkar was residing with fixed habitation whether such house was constructed by the mundkar at his own expense or at the bhatkars expense or with financial assistance from the bhatkar. In other words, prior to the amendment to the Mundkar Act in the year 1985, it was necessary that the house ought to have been constructed by the mundkar and in the instant case the admitted position was that the house was constructed by the appellant, i. e. bhatkar. By virtue of the Goa, Daman and Diu (Amendment) Act, 1985, the expression, "whether such house was constructed by the mundkar at his own expense or with the financial assistance of the bhatkar", in section 2 (i) of the Mundkar Act was deleted and therefore, the "dwelling house" under the Mundkar Act, as it stands now includes any house constructed either by the mundkar or by the bhatkar.