Bombay High Court
Smt. Gulabi Sangtu Devidas And Ors. vs Smt. Prema Govinda Gauncar And Ors. on 31 August, 1993
Equivalent citations: 1994(3)BOMCR328
JUDGMENT M.L. Pendse, J.
1. An interesting question as to whether the proceedings under section 8-A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as 'the Act') are maintainable after an order is passed by Mamlatdar under section 29 of the Act rejecting the application for being entered as munkdar in the register of mundkars arises for determination in this Letters Patent Appeal. The facts giving rise to the filing of the appeal are not in dispute and are required to be briefly stated to appreciate the issue which falls for determination.
2. Late Sangtu filed application dated June 21, 1978 in the Court of Joint Mamlatdar of Canacona Taluka for entering his name as mundkar in the register to be maintained under section 29 of the Act. The application was dismissed by Mamlatdar by Order dated February 27, 1982 on the ground that the house is not registered in his name in the records of the Village Panchayat. Said Sangtu sought declaration in respect of house situated in the property known as Panna and registered in the Village Panchayat records under No. 101. He did not prefer appeal against the order of the Mamlatdar as prescribed under sub-section (8) of section 29 of the Act. Instead he filed application under section 8-A of the Act before the Mamlatdar for a declaration of being a munkdar in respect of house in dispute. The application was resisted by the respondent landlady on the ground that the application was not maintainable in view of dismissal of application filed under section 29 of the Act. The objection of the jurisdiction of the Mamlatdar to entertain the application found favour and the Mamlatdar by Order dated January 10, 1986 dismissed the application. In the meantime Sangtu expired and his widow and legal representatives present appellants carried appeal as prescribed under section 24 of the Act before the Additional Collector of Goa but the appeal ended in dismissal by order dated January 30, 1987. The appellants thereupon preferred revision application before the Administrative Tribunal, Goa, Daman and Diu. The Administrative Tribunal by order dated May 19, 1989 allowed the revision application and remanded the proceedings to the Mamlatdar for disposal on merits. The Tribunal came to the conclusion that the application under section 29 of the Act was only for registration of mundkarship and the dismissal of that application cannot prevent the appellants from seeking declaration of mundkarship rights under section 8-A of the Act. The Tribunal observed that the proceedings under section 29 and 8-A are different and distinct in scope and purpose.
The order passed by the Administrative Tribunal was challenged by the respondents by filing Writ Petition No. 285 of 1989 in this Court and the learned Single Judge by Judgment dated June 26, 1992 reversed the order passed by the Tribunal. Reported in Prama Govinda Gaunear v. Administrative Tribunal, Goa, . The learned Single Judge held that the dismissal of the application under section 29 of the Act by an order which is expressed in crude and injudicious language prohibits institution of proceedings under section 8-A of the Act for declaration of mundkarship rights. The learned Judge felt that once the Mamlatdar determines that the name of the appellant cannot be entered in the register as mundkar, then the said finding amounts to a declaration contemplated under section 8-A of the Act. On the strength of this finding the learned Judge set aside the order of the Tribunal and restored the order of the Mamlatdar rejecting application under section 8-A of the Act on the ground that the application was not maintainable. The order of the learned Single Judge is under challenge in this Letters Patent Appeal.
3. Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants, submitted that the learned Single Judge was in error in concluding that the order passed under section 29 of the Act operates as a bar for seeking a declaration of munkdarship rights under section 8-A of the Act. It was urged that the impact of the inquiry under section 29 of the Act is only for the purpose of entering the name of a person as a mundkar in the register maintained under the Act and section 30 of the Act provides that the entries made in the register have only presumptive value. The learned Counsel urged that section 8-A confers a substantial right on the parties to seek a declaration of mundkarship right or to seek a negative declaration that a person in occupation is not a mundkar and the substantive right cannot be denied by reference to the order passed under section 29 of the Act. Mr. D'Costa, learned Counsel appeaing on behalf of the respondents, on the other hand submitted that it is not permissible to institute proceedings for a declaration under section 8-A of the Act after the appellants failed to seek registration of mundkarship rights under section 29 of the Act. The learned Counsel urged that permitting the appellants to re-agitate the question before the same Authority, which had earlier determined proceedings under section 29 of the Act, would be contray to the principles of finality of the orders. Mr. D'Costa submitted that the remedy of the appellants was to file an appeal against the order passed by the Mamlatdar under section 29 of the Act and not to file a separate proceeding under section 8-A of the Act. In view of the rival submissions, the question which requires determination is whether it is open to institute proceedings under section 8-A of the Act after an order is passed by the Mamlatdar under section 29 of the Act?
4. The Legislature enacted the provisions of the Act to provide for better protection to mundkars against eviction from their dwelling houses and for granting them the right to purchase the same. The expression 'mundkar' has been defined under section 2(p) and means a person, who with the consent with the bhatkar lawfully resides with a fixed habitation in a dwelling house. The expression 'bhatkar' is defined under section 2(f) and means a person who owns the land on which the mundkar has a dwelling house. The Act received the assent of the President of India on February 10, 1976 and section 29 of the Act provides for maintenance of register of mundkars. The section, interalia, provides that in respect of every village, the Government should cause a register of mundkars to be prepared and maintained in the prescribed manner. Sub-section (2) demands that the register should contain the particulars and description of the dwelling house, the name and address of the bhatkar, the name and address of the mundkar and other relevant facts. Sub-section (3) provides that the register shall be prepared and maintained by the Mamlatdar after such inquiry as prescribed. Under sub-sections 4, 5 & 6 the Mamlatdar is required to publish a notice in every village inviting applications from the mundkars for registration. The sub-section further provides that on receipt of the application the Mamlatdar is required to give notice to the bhatkar and any other person interested in the land in which the dwelling house is situated, calling upon them to file objections, if any. Sub-section (6) provides that the Mamlatdar shall hear the persons who appear in the inquiry and then pass order either granting the application for registration or rejecting the application. Sub-section (8) provides for an appeal to be filed before the Collector against the order of the Mamlatdar within 60 days from the date of the order. Section 30 then provides that entry made in the register of mundkar shall be presumed to be true until the contrary is proved or a new entry is lawfuly substituted thereafter. Section 31 provides for ouster of jurisdiction of Civil Courts and sub-section (2), inter alia, provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is required to be settled, decided or dealt with or to be determined by the Mamlatdar under the Act. A bare reading of Sub-section (2) of section 31 makes it clear that the question as to whether a person is entitled to claim rights of mundkar cannot be determined by the Civil Court but can be exclusively settled, decided or dealt with or determined by the Mamlatdar under the provisions of the Act.
5. The provisions of the Act were amended by Goa, Daman and Diu Mundkars (Protection from Eviction) (Second Amendment) Act, 1977 and this amendment came into force from March 12, 1976. The Legislature in section 8-A (1) and (2) dealt with subject 'Declaration of right'. The section reads as follows :-
"8-A (1). Declaration of right.--If any person is entitled to any right under this Act, he may move the Mamlatdar by an application for a declaration of such a right.
(2) On receipt of such application, the Mamlatdar may, after holding such enquiry as may be prescribed, pass such order as he considers fit."
The Statement of objects and Reasons sets out that whereas an anamolous situation has arisen as a result of the Civil Courts refusing to refer suits filed after coming into force of the Act and wherein rights under the Act are involved, and further recites that there is no specific provision by which persons can move the Mamlatdar for a declaration of their right under the Act and, therefore, the Legislature decided to step in for remeding the lacuna existing in the Act. The provision of section 8-A confers a right upon a person to seek declaration from the Mamlatdar and the Mamlatdar is required to pass appropriate orders after holding inquiry as may be prescribed. The Legislature inserted provision of section 8-A to the Act with a view to enable the parties to seek a declaration of right of mundkarship or a negative declaration that a person in occupation is not a mundkar. The importance of provision of section 8-A of the Act lies on the fact that even after entry is made in the register as contemplated under section 29 of the Act recording a person as mundkar, it is open for the owner of the property or bhatkar to institute proceedings before the Mamlatdar under section 8-A of the Act to seek a declaration that the person claiming to be in occupation is not a mundkar. Such right to seek negative declaration was not available till the enactment of section 8-A of the Act. Before adverting to the issue which is required to be determined in this appeal, it would be appropriate to make reference to provision of section 13 of the Act which provides for transfer of pending suits or other proceedings for eviction where a person sought to be evicted calims to be a mundkar to the Mamlatdar. Section 32 of the Act deals with suits instituted in Civil Court involves any issues arising about any right to be determined by the Mamlatdar under the Act and the section demands that the Civil Court shall stay the suit and refer the issue for determination to the Mamlatdar. With this background of the statutoty provision it would now be appropriate to examine the controversy raised in the present appeal.
6. The learned Single Judge held that once an application is made for entering the name in the register of mundkars and such application is dismissed for whatsoever reason, it is not open for the person claiming right of mundkar to seek a declaration under section 8-A of the Act. The learned Judge held that the provision of section 29 requires the Mamlatdar to hold an inquiry after notice to the bhatkar and on such inquiry when the Mamlatdar records a finding adverse to the person claiming right of mundkar, then the remedy is to file appeal as prescribed under section 29(8) and not seek a declaration under section 8-A of the Act. It is not possible to share the view taken by the learned Single Judge. The object of maintaining a register of mundkar under section 29 of the Act and the effect of the order passed by the Mamlatdar under section 29 is required to be borne in mind before concluding that the order of the Mamlatdar bars the right of the mundkar to seek a declaration under section 8-A of the Act. The entries made in the register of mundkars under section 29 of the Act are not conclusive but have merely presumptive value as set out under section 30 of the Act. The specific wording of section 30 provides that the entries made under section 29 shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereafter. The expression 'until the contrary is proved' clearly sets out the intention of the Legislature that the entries made after the inquiry conducted by the Mamlatdar under section 29 of the Act do not conclude the right of the parties in respect of mundkarship. The fact that it is open for the party who is aggrieved by the entry in the register to prove that the entry is incorrect clearly establishes that the decision of the Mamlatdar under section 29 is not the final verdict. The perusal of section 29 makes it clear that the inquiry conducted by the Mamlatdar is only for the purpose of making entries in the register and though the order of the Mamlatdar and the entries made in consequence thereof have presumptive value, such exercise does not conclude the right of an aggrieved party to seek a declaration. Section 8-A confers a substantive right upon a party to seek declaration of a right conferred by the Act and the substantive right cannot be ousted by reference to the inquiry made by the Mamlatdar for making entries in the register. Mr. Usgaonkar very rightly submitted that the entries made in the register under section 29 are in the nature of entries made by revenue officers under the provisions of the Land Revenue Code and such entries can by no stretch of imagination determine the substantive rights of the parties. Mr. D'Costa apprehended that in case a person is permitted to seek a declaration under section 8-A of the Act after adverse order is passed by Mamlatdar under section 29 of the Act then it would amount to duplication of proceedings. The learned Counsel wondered how the Mamlatdar, who had previously conducted inquiry under section 29 can again undertake the inquiry under section 8-A of the Act. The submission overlooks the fact that though the authority conducting the inquiry under section 29 as well as under section 8-A is identical the scope and ambit of the two inquiries are different and distinct. The scope of the inquiry under section 29 is only to make entries in the register and which entries are only presumptive in nature while the declaration under section 8-A of the Act conclude the rights of the parties finally. Mr. D'Costa then submitted that while holding the inquiry under section 8-A of the Act, the Mamlatdar is entitled to take into consideration the fact of order passed under section 29 of the Act. It is obvious that the Mamlatdar conducting inquiry under section 8-A of the Act will bear in mind the order passed while disposing of application under section 29 of the Act. The provisions of section 30 of the Act makes it clear that the entries made in the register in pursuance of order passed under section 29 of the Act have presumptive value and the Mamlatdar while holding inquiry under section 8-A of the Act will presume that the entries made in the register in pursuance to the inquiry under section 29 of the Act are correct and true until the parties seeking declaration under section 8-A of the Act prove contrary. The burden upon the party who seeks a declaration under section 8-A of the Act after an adverse order is passed in proceedings under section 29 is quite substantive and heavy but the right to seek declaration is not lost merely because an adverse order is passed under section 29 of the Act. It is possible that a person may seek a favourable order of being a mundkar under section 29 of the Act because the bhatkar may not be able to appear in the proceedings but in such cases it is open for the bhatkar to seek a declaration under section 8-A of the Act though the entries made under section 29 are not correct and a negative declaration should be granted that a person claiming mundkarship is not entitled to that right. There is one more circumstance which is required to be noticed. Section 30 of the Act provides that the entries made in the register shall be presumed to be true until a new entry is lawfully substituted. Both the Counsel state that there is no provision under the Act which entitles the Mamlatdar to substituted the entry already made in the register in pursuance of proceedings under section 29 of the Act. Such eventuality arises of substituting the entry when the Mamlatdar gives a declaration under section 8-A of the Act which is contray to the order passed under section 29 of the Act against which case Mamlatdar would be required to substitute a new entry in place of the entry made earlier while disposing of the application under section 29 of the Act. In our judgment the view taken by the learned Single Judge that the application under section 8-A of the Act for declaration of right is not maintainable after an order is passed by Mamlatdar under section 29 is not accurate. It is not correct to suggest that the only remedy of an aggrieved party against the order passed by the Mamlatdar under section 29 of the Act is to file an appeal. The fact that the aggrieved party has not resorted to filing an appeal does not conclude the right to seek a declaration under section 8-A of the Act.
7. Mr. D'Costa referred to the decision of the learned Single Judge in Leao Vitorina D'Souza and another v. Silvestre Loyola Fernandes and another, reported in 1989(1) Goa Law Times 62. In paragraph 6 of the judgment the learned Judge observed that a harmonious construction of sections 8-A, 29 and 30 of the Act suggest the solution that the presumption of truth of the entries made in the register of mundkars can be rebutted only if the said entry was made on the basis of the decision of the Mamlatdar or by superior authority in appeal or revision. The learned Judge observed that the appeal provided under sub-section (8) of section 29 is only in respect of entries and particulars thereof and not in respect of finding as to whether a person is not a mundkar. The observations made by the learned Single Judge indicate that the right to seek a declaration under section 8-A of the Act is not foreclosed by decision recorded by the Mamlatdar in proceedings under section 29 of the Act. The reliance by Mr. D'Costa on the latter observation of the learned Judge that the finding recorded by the Mamlatdar under section 29 has to be considered as a declaration made under section 8-A of the Act is not accurate and is required to be overruled. Mr. D'Costa then invited our attention to two unreported decisions of Single Judges of this Court. The first decision is dated Novermber 6, 1990 in Civil Revision Application No. 10 of 1990 Gabriel Noronha and others v. Smt. Brasil Brigida Cardoso, the learned Judge who delivered the judgment in Civil Revision Application and held that application for declaration under section 8-A of the Act is not maintainable after decision of Mamlatdar under section 29 of the Act, followed the same view in the decision under appeal. Another learned Single Judge by decision dated July 9, 1992 in Writ Petition No. 356 of 1989 Abilio D'Souza and another v. Court of Civil Judge, Senior Division, Sanguem and another, observed that on rejection of application by Mamlatdar under section 29 of the Act it is not open for the aggrieved party to raise the issue of mundkar in a suit filed in the Civil Court. Both the decisions referred to by the learned Counsel do not deal with the impact of the provision of section 30 of the Act and in our judgment the view taken in these two decisions is incorrect and is specifically overruled. In our judgment the application for a declaration under section 8-A is maintainable inspite of the decision recorded by the Mamlatdar under section 29 of the Act and adverse to the party seeking a declaration under section 8-A of the Act. It is also open for a party who is aggrieved by the decision of Mamlatdar under section 29 of the Act to raise the contention about right created under the Act in a Civil Court and in case the Civil Court prima facie finds that the right claimed is bona fide and not raised mala fide only to delay the proceedings then the Civil Court is bound to raise an issue and made reference to the Mamlatdar in accordance with the provisions of section 32 of the Act.
8. For these reasons the judgment in appeal recorded by the learned Single Judge cannot be sustained and is required to be set aside. Accordingly appeal is allowed and judgment dated June 26, 1992 delivered by learned Single Judge in Writ Petition No. 285 of 1989 is set aside and that recorded by Administrative Tribunal on May 19, 1989 in Mundkar Revision Application No. 14 of 1987 is restored. In the circumstances of the case there will be no order as to costs.