UTTAM PEDNEKAR Vs. ATUL PUNDALIK BANDEKAR

JUDGEMENT

(1.) THIS Letters Patent appeal challenges the order of a learned Single Judge of this Court (R. K. Batta, J.) in Writ Petition No. 430/1992 (reported in 1997 (2) Goa L. T. 303) which holds that registration of mundkar under section 29 of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 pertains to villages only and the provision does not extend to the dwelling houses which fall within the Municipal limits.

(2.) THE appellant who claims to be a mundkar, filed an application before the Mamlatdar of Bardez Taluka under section 29 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called as "the Mundkar Act" for the purpose of brevity) praying that he be registered in the Register of Mundkars for a dwelling house situated in the property of the opponent, alleged to be a bhatkar, described in Chalta Nos. 59 and 60, P. T. Sheet No. 122 of City Survey Mapusa. There is no dispute that the property is within the jurisdiction of Municipal limits of Mapusa. It is the case of the applicant/appellant that one Bobot Bandekar, permitted the ancestor of the appellant to construct a small hut in the property and since about 40 years, his family is residing in the said house. It is the case of the respondent/bhatkar that the appellant was allowed to reside as a care-taker, to keep the house in a habitable condition and, therefore, he is not a mundkar. The Joint Mamlatdar of Bardez Taluka was pleased to allow this application in Case No. MND/reg/mapusa/151/85, vide his order dated 5-4-1998 and directed that the applicants name be registered in the mundkars register for the said house. An appeal under section 24 of the Mundkar Act was filed by the respondent/bhatkar before the Collector of North Goa. The said Appeal bearing No. 4-88 MUND/apl/88 came to be dismissed by the Collector of North Goa, confirming the findings recorded by the Joint Mamlatdar dated 18-7-1988. A revision application under section 25 of the Mundkar Act was filed before the Administrative Tribunal at Panaji. The Tribunal reappreciated the whole evidence and was pleased to set aside both the orders challenged and the application for registration as mundkar, came to be dismissed. The Tribunals order proceeds on the basis that the applicant was a care-taker, only duty to look after the house, to keep it in a habitable condition and, therefore, he is not entitled for protection under the Mundkar Act. This order of the Tribunal dated 24-6-1992 was challenged before the learned Single Judge of this Court under Articles 226 and 227 of the Constitution of India in Writ Petition No. 430/92. The learned Single Judge was pleased to observe that the tribunal had no jurisdiction to go into the evidence and re-appreciate it and, he, therefore, struck down that part of the order of the tribunal. The learned Single Judge observed that:

(3.) SECTION 29 casts a duty on the Government to call register of mundkars to be prepared in respect of every village and maintained in the prescribed manner. In sub-section (4), the Mamlatdar has to issue a public notice in every revenue village calling applications from the mundkars for registration. The applications and objections, if any, are to be heard, the order of the Mamlatdar is to be published and a person aggrieved by registration of mundkar or by refusal to register a personss name in the register of mundkars, may appeal to the Collector. Section 30 of the Mundkar Act gives presumptive value of the record maintained under section 29. Therefore, it can be seen that section 29 is one of the important provisions under the Mundkar Act. It is a statutory record of the rights under the Act. Since section 29 speaks about the register for every village and since sub-section (4) of the said section requires that the Mamlatdar shall publish a notice in every revenue village inviting applications, the respondents Counsel contends that a registration possible under section 29 is only in respect of the mundkars who are in possession of a dwelling house situated in a village. In effect, the respondents contention is that the rights of the mundkars are there to the persons who are residing in a dwelling house and those rights are not available to the persons who are residing in the dwelling houses which are in the Municipal areas.