Joaquim D’Costa And Ors. vs Anthony D’Souza Alias Joseph … on 22 September, 2000

Bombay High Court
Joaquim D’Costa And Ors. vs Anthony D’Souza Alias Joseph … on 22 September, 2000
Equivalent citations: AIR 2001 Bom 298, 2001 (2) BomCR 247, 2001 (1) MhLj 694
Author: T C Das
Bench: T C Das


JUDGMENT

T.K. Chandrashekhara Das, J.

1. Rule. By consent heard forthwith.

2. A short question which is involved in this petition is as to whether a legal heir of a mundkar is entitled to register as a mundkar under Section 29(4) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called “the Act”) without fixed habitation in the mundkarial house. The petitioners claim to be the legal heirs of one Rosy D’Costa. Rosy D’Costa is the neice one Ana Francisca Mascarenhas, who was residing in the mundkarial house with fixed habitation. On the death of the Ana Francisca Mascarenhas, her niece said Rozy D’Costa filed an application for registration as mundkar under Section 29(4) of the Act.

3. The case of said Rosy D’Costa was that her aunt Ana Francisca Mascarenhas died issueless and she was staying with her and she gave birth to her children in Goa and, therefore, she is entitled to mundkarial right which Ana Mascarenhas was enjoying. The Joint mamlatdar of Bardez allowed her application by order dated 7-12-1987. The main objection which has been raised before the Mamlatdar by the respondents was that Rosy D’Costa was not staying permanently along with Ana Mascarenhas. In fact, Rosy D’Costa was staying in Bombay. She has registered her name in the voter’s list in Bombay and she was never a permanent resident of this mundkarial house and, therefore, she is not entitled to register herself as mundkar. It was also disputed before the Mamlatdar that Smt. Rosy D’Costa was not the niece and legal heir of Ana Mascarenhas. The Mamlatdar, however, turned down these objections and the applicant Rosy D’Costa was ordered to be registered as mundkar. The respondents filed appeal before the Additional Collector, Panaji. The Addl. Collector, North at Panaji, in the appeal, though, found that Smt. Rosy D’Costa was the legal heir of Ana Mascarenhas, he held that Rosy D’Costa was not entitled for registration as mundkar because she has not proved that she has been staying in the house with fixed habitation and she is not the legal heir of Ana Mascarenhas. Therefore, the appeal was allowed and the order of the Mamlatdar was set aside. Against the order of the appel-

late authority, the petitioners filed revision petition before the Administrative Tribunal of Goa. The Tribunal also confirmed the order of the appellate authority. The Tribunal, however, recorded its disagreement with the appellate authority and held that Rosy D’Costa cannot be treated as a legal heir of Ana Mascarenhas. Therefore, both the objections raised by the respondents were upheld by the Tribunal and the revision was dismissed. It is in these circumstances the petitioners have approached this Court by way of this writ petition.

4. Learned Senior counsel appearing for the petitioners Mr. Lotlikar has contended that the approach of the revisional authority was completely wrong. The revisional authority cannot reappreciate the evidence and upset the findings entered on facts by the original authority. He severely criticises the finding of the revisional authority that Rosy D’Costa has failed to prove that she is the legal heir of Ana Mascarenhas. The Birth Certificate and the Death Certificate produced by Rosy D’Costs in order to substantiate her claim that she is the legal heir of Ana Mascarenhas has been reappreciated by the revisional authority and has rejected those documents on the ground that the same have not been proved strictly according to the provisions of the Evidence Act, as those are not public documents.

5. Learned counsel for he respondents No. 1 and-2 Shri Noronha has contended that the revisional authority has disposed of the matter as early as on 29-11-1996 and, therefore, the writ petition is hopelessly barred by laches. Since learned Advocate for the respondents Nos. 1 and 2 has raised this preliminary objection, before proceeding any further, I shall dispose of this objection first.

6. The learned counsel for the petitioners has brought to my notice the plea taken by the petitioners in paras 22 and 23 of the petition which contain the explanation for the delay. The petitioners submit that immediately after the order was passed by the Administrative Tribunal, the original applicant, that is their mother and mother-in-law, died and in October, 1998, the respondents filed regular civil suit being Regular Civil Suit No. 269/98 in the Court of Civil Judge, Senior Division, Mapusa for eviction of the petitioners from the suit house and for correction of the records in the Record of Rights. In that case, the petitioners took up

a plea of mundkarship. Learned Civil Court framed an issue of mundkarship and referred the issue to the Mamladar for decision and ultimately, the issue had been deleted becaue the Issue had been concluded at the level of the Administrative Tribunal. In view of this explanation. I find that the petitioners were diligently prosecuting their case and that they cannot be blamed for any laches or delay on their part in approaching this Court by way of the present petition. Therefore, the preliminary objection raised by the respondents has to be overruled.

7. Coming to the contention raised by learned Advocate for the parties that whether the appellate authority or the revisional authority was right in holding that the heir of the mundkar or the legal heir of the mundkar should prove his status as mundkar under Section 29(4) of the Act if he does not reside in the mundkarial house. The Counsel for the respondents No. 1 and 2 has urged before me that Rosy D’Costa has not approached the Mamlatdar as a legal heir of Ana Mascarenhas, but as an independent mundkar. He brought to my attention the application filed before the authority by Rosy D’Costa and pointed out that she claimed independently mundkarial right and not as a legal heir Ana Mascarenhas. I cannot agree with the submission made by the Counsel for the respondent. It may be noted that all the authorities below have given concurrent finding that Ana Mascarenhas was residing in the house as a mundkar, but she died before registration of mundkarship. Section 3 of the Act provides that the rights of a mundkar in a dwelling house shall be heritable and shall not be transferable. These rights which would devolve on a legal heir of a mundkar, including the right to apply for registration of mundkar. Therefore, merely because the applicant does not show how the applicant has devolved status of mundkar on her, will not deprive her right to inherit the munkarial right. In the inquiry, of course, the legal heir of the mundkar should demonstrate and prove that the applicant is the legal heir of the original mundkar and therefore, the applicant is entitled for the registration of mundkar.

8. Now, reverting back to the main point which has focused in the opening sentence of this judgment, as I indicated earlier this is a right inheritable which has been declared by the Statute. That right includes right to

apply for registration. Fixed habitation which is a factor or a sine qua non enabling a mundkar to apply for registration. That is the only criteria required to be satisfied by the person who claims original mundkarial right against Bhatkar. Once he has become eligible and the said right is conferred on him by operation of statute, the person who inherits his right, need not satisfy the legal requirement of law because Section 3 will, otherwise, become nugatory. What has been stated under Section 3 of the Act is that the right which was already vested in Mundkar is heritable. One must establish two basic things, that is, he must reside there permanently and the stay was without obligation to render any services to the Bhatkar. The factors he must establish as on the date of coming into force of the Act. These two conditions are the conditions to be satisfied by the original mundkar. It is not necessary for the person who inherits from the original mundkar to satisfy those conditions. It is not contemplated under the Act that legal heir who inherits the right of mundkarship should also satisfy the fixed habitation. When once right of mundkarship is snowballed into statutory rights, it cannot be taken away, if the condition does not exist or to discontinue.

9. In view of the above discussion, I find that the orders of the appellate authority and the revisional authority are liable to be set aside and the order of the Joint Mamlatdar is to be confirmed.

10. In the result, the Writ Petition is
allowed. Rule is made absolute in terms of
the prayer Clause (1) of the petition. In the
circumstances of the case, there shall be no
order as to costs.

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