ANDRE GONSALVES Vs. DIOGO FERNANDES & OTHERS

JUDGEMENT

(1.) The petitioner challenges in this Writ Petition the Order dated 30th Jan., 1982, passed by the Mamlatdar of Salcete, as well as the Judgments dated 28th May, 1983, and Sept., 1987, respectively, passed by the Additional Collector of Goa in appeal and by the Administrative Tribunal in revision.

(2.) A suit for eviction of the petitioner had been filed by the predecessors-in-title of the first two respondents, on the ground that he had contravened the terms of the agreement entered into with him. The petitioner resisted the said suit, and inter alia, raised the issue of mundkarship. The said issue was referred to the Mamlatdar of Salcete, who by his impugned Order dated 30th Jan., 1984, held that the petitioner was not a mundkar under the provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. The Mamlatdar, however, held that the petitioner was residing in the suit house since 1968, i.e. for about 10 years as on 1978, with the consent of the bhatkar and that he was looking after the property under an agreement of licence which had been terminated by notice dated 2nd July, 1974, given by the first respondent to him. Being aggrieved, the petitioner preferred an appeal to the Collector of Goa, which was dismissed by the learned Additional Collector by his Judgment dated 28th May, 1983. The Additional Collector recorded a finding that there was an agreement between the petitioner and the landlord under which he was allowed to stay temporarily in the suit house which is a store- room, with the obligation to do toddy tapping and watch and ward services. He further held that the said agreement had been terminated by the landlord through a notice, and therefore, it was clear that the petitioner has failed to establish that he was residing in the said store-room with fixed habitation. Thus, according to the Additional Collector, he was not coming within the definition of mundkar given in the 1975 Act. Being again aggrieved, the petitioner moved the fifth respondent Administrative Tribunal in a Revision Application which was also dismissed.

(3.) Petitioner challenges the aforesaid Order and Judgments on several grounds and Mr. Rebello, the learned counsel appearing for him, contends before me that the Mamlatdar, Additional Collector and the Administrative Tribunal failed to appreciate a relevant aspect of the case which goes to the root of it and if had been looked into, would have definitely been decisive for the adjudication of the case. The learned counsel, therefore, took me through the Order of the Mamlatdar as well as the Judgments of the Collector and the Administrative Tribunal. He submits that it is clear from the Order of the Mamlatdar that some findings of facts had been recorded which, ex facie, bring the petitioner well within the definition of mundkar under the 1971 Act. In fact, the Mamlatdar after discussing the relevant evidence, has recorded a finding that the petitioner is residing in the suit house since 1968, i e. for about 10 years as in 1978, and that this occupation was with the consent of the first respondent. He also recorded a finding that such consent to occupy the said house was given by the first respondent for the purpose of the petitioner looking after the suit property. Once these findings were given, it is obvious that the petitioner was coming within the definition of mundkar given in Sec. 2(e) of the 1971 Act which came into force on 4th Feb., 1971. Under the said definition, the meaning assigned the mundkar is the one which is given in the Diploma Legislative No. 1952 dated 26th Nov., 1959. Art. 2 of the said Diploma Legislative defines mundkar or dweller as an individual who resides with a fixed dwelling in a rustic property of others, especially for the purposes of agricultural or watch and ward duties, be the dwelling constructed on own account or on account of the bhatkar or the landlord receiving or not any assistance in cash or kind for its construction and establishment. This aspect of the case was entirely overlooked by the Mamlatdar as well as by the Additional Collector and the Administrative Tribunal, since all of them proceeded on the basis that the law attracted was the 1975 Act. In that, the Mamlatdar, the Additional Collector and the Administrative Tribunal had committed an error touching jurisdiction, since they were bound to look into the issue before them in the light of the law as applicable to the petitioner. That law was, manifestly, the 1971 Act, as the petitioner was already a mundkar under the said Act, and therefore, the benefit of the said definition had accrued to him on the appointed date, i.e. on 4th Feb., 1971. This being so and irrespective of the remaining grounds to challenge, the impugned Order and Judgments are liable to be set aside and the matter should be remanded to the Mamlatdar to be decided afresh considering the relevant provisions of the 1971 Act.