1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.317 OF 2004 1. Ms. Adelia Albuquerque, residing at dona Levcadia e Pires Apartments, 2nd floor, Flat No.S/8, Canca, Parra, Bardez, Goa 403 510, presently residing at USA represented by her attorney Smt. Cynthia Albuquerque. 2. Smt. Cynthia Albuquerque, 'Maryland Apartments', Flat No.5-2nd Floor, residing at dona Levcadia e Pires Apartments, 2nd Floor, Flat No.S/8, Canca, Parra, Bardez, Goa – 403 510. 3. Dr. Mary Grace (since deceased). …. Petitioners V/s 1. Shri Vithal B. Dabholkar 2. Prabhakar Dabholkar 3. Kanchan Dabholkar, 4. Kishore Dabholkar 5. Smt. Vanita Dabholkar, All resident of Vagator, Bardez, Goa. 6. Tassim Kandokar 7. Ashok Kandolkar Both residents of Chimbel, Ribandar, Ilhas, Goa. 2 8. Devta Dabholkar, resident of Vagator, Bardez-Goa. 9. The Administrative Tribunal, Dr. Dada Vaidya Road, Panaji-Goa. 10. Deputy Collector, Collectorate, Mapusa-Goa. 11. The Joint Mamlatdar, Collectorate, Mapusa – Goa. …. Respondents Shri Sudin M.S. Usgaonkar, Advocate for the Petitioners. Shri S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 4th OCTOBER, 2011 JUDGMENT : Heard Shri Sudin M.S. Usgaonkar, learned Counsel appearing for the petitioners and Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents 2. The above petition challenges the judgment passed by the Authorities below whereby the application to declare the respondents as mundkar came to be allowed. It is the contention of the petitioners that in the year 1986, the respondent no.1 filed an 3 application before the learned Mamlatdar for the registration as a mundkar in respect of the suit house under Section 29 of The Goa Mundkars (Protection from Eviction) Act, 1975, hereinafter referred to as 'the Mundkar Act'. The petitioners disputed the claim of the respondents to that effect as according to the petitioners the respondent no.1 was given a lease of their property at Anjuna by deed executed in 1961 wherein the suit house was situated and the respondent no.1 was entrusted with the duty of keeping the suit house in a habitable condition. It is further their contention that the respondent no.1 was permitted to occupy the outhouse situated behind the suit house and also that the petitioner had stored their furniture in one of the rooms of the suit house. The agreement executed between the parties came to be renewed in the year 1967. The petitioner no.1 was residing abroad and would occupy the suit house during her stay in Goa. The respondent no.1 was residing in the out house and would keep the suit house in a habitable condition. But however, it is the contention of the petitioners that the respondent no.1 trespassed into the suit house in the year 1978 and started occupying the same. Though respondent no.1 promised to vacate the suit house nevertheless he failed to keep the said promise and, as such, the petitioners terminated 4 caretakership of the respondent no.1, by a writing in the presence of a Panch. 3. The application filed by the respondent no.1 to register him as mundkar came to be dismissed by the learned Mamlatdar by judgment and order dated 28/04/1989. An appeal was preferred by the respondent no.1 before the Deputy Collector which came to be dismissed by order dated 30/01/1991. Aggrieved by the said order dated 30/01/1991, the respondent no.1 preferred a revision before the Administrative Tribunal of Goa and by order dated 20/08/1992 the Revision Petition filed by the respondent no.1 came to be dismissed. The Writ Petition was filed before this Court challenging the said orders which came to be dismissed by this Court by order dated 10/02/1993. 4. In the meanwhile, petitioners filed a Civil Suit bearing no.497/1989 before the learned Civil Judge Senior Division, Mapusa for eviction of respondents no.1 to 8 from the suit house. In the written statement, the respondents again raised a plea that they are mundkars of the suit house. An issue was framed and it was referred for decision before the learned Mamlatdar, and the 5 proceedings in the said suit were accordingly stayed. 5. By judgment and order dated 11/11/1997, in case No. MUND/SR/3/1995, the learned Mamlatdar decided the issue of mundkarship in the negative and held that the respondents no.1 to 8 failed to prove that they are the mundkars of the suit house. Being aggrieved by the said order of the learned Mamlatdar, the respondent no.1 preferred an appeal before the learned Deputy Collector and by order dated 6/07/1999, the learned Deputy Collector allowed the appeal preferred by the respondent no.1 holding inter alia that the respondents have proved that they are mundkars of the suit house. Aggrieved by the said judgment, the petitioners preferred a revision before the Administrative Tribunal which came to be dismissed by judgment and order dated 24/07/2003. Being aggrieved by the said judgment and order passed by the Administrative Tribunal as well as by the Deputy Collector, the petitioners have preferred the present petition. 6. Shri Sudin Usgaonkar, the learned Counsel appearing for the petitioners has pointed out that the Deputy Collector as well as the Tribunal have misconceived the agreement executed between the 6 parties and, as such, have come to an erroneous conclusion that the respondents were the mundkars of the suit house. The learned Counsel has pointed out that as per the agreement executed in the year 1961, the deceased respondent no.1 was permitted to repair the suit house to keep it in a habitual condition and, as such, the said respondents do not come within the meaning of a 'Mundkar' under the provisions of Section 2(p) of the Mundkar Act. The learned Counsel further pointed out that considering that the respondent no.1 was only a caretaker of the suit house the said respondent cannot claim to be the mundkar of the suit house. Learned Counsel further pointed out that in the earlier proceedings initiated by respondent no.1 to register as a mundkar the matter was decided after both the parties had lead evidence in support of their rival contentions and a full fledged inquiry and the Authorities had conclusively come to the conclusion that the respondent no.1 was not a mundkar of the suit house. Learned Counsel has also taken me through the oral order passed by this Court in Writ Petition No.499/1992 dated 10/02/1993 and pointed out that this Court while disposing of the said petition has come to the conclusion that the respondent no.1 was merely a caretaker of the suit house and was not coming within the meaning of a 'mundkar' 7 under Section 2(p) of the Mundkar Act. Learned Counsel further pointed out that though in the judgment passed by the Division Bench of this Court reported in 1995 (1) Goa Law Times 154 in the case of Smt. Gulabi Sangtu Devidas & Ors. V/s. Smt. Prema Govinda Gaonkar & Ors., it has been held that merely because an application for registration of mundkar has been rejected does not preclude a person to file an application under Section 8-A of the Mundkar Act, nevertheless, the judgment clearly stipulates that the orders passed while disposing of the application for registration can always be considered for the purpose of deciding such dispute of declaration. Learned Counsel has taken me through the judgment passed by the Deputy Collector and pointed out that the judgment passed in the earlier proceedings including the judgment passed in the Writ Petition by this Court has not been considered by the Deputy Collector whilst deciding the appeal in favour of the respondent no.1. The learned Counsel further submitted that the Deputy Collector as well as the Tribunal have misconstrued the evidence on record and failed to consider the agreement executed between the parties and, as such, have come to an erroneous conclusion that the said respondents are the mundkars of the suit house. Learned Counsel further pointed out that the petitioners are 8 litigating with regard to their ancestral house for last more than two decades and, as such, it would be appropriate that the matter be decided expeditiously. Learned Counsel further pointed out that there is no dispute that there is one room in the ancestral house which is being occupied by the petitioners and which possession has been protected up to this date by the order of this Court. The learned Counsel, as such, submits that the impugned orders be quashed and set aside. 7. On the other hand, Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents has supported the impugned order. Learned Senior Counsel has pointed out that the orders passed while disposing of an application for registration of mundkar are summary proceedings and, as such, such findings have no relevancy while disposing of the application for mundkarship. Learned Senior Counsel further submitted that respondent no.1 was occupying the suit house prior to the year 1961 and as such merely because the agreements have been executed in the year 1961 and 1967, this by itself cannot defeat the claim of the respondent no.1 that he is the mundkar of the suit house. Learned Counsel further pointed out that the learned 9 Deputy Collector as well as the Tribunal have rightly appreciated the evidence on record and have come to the conclusion that the respondents are the mundkars of the suit house. Learned Senior Counsel took me through the agreements executed by the parties and pointed out that as per the said agreement respondent no.1 was the tenant of the land around the house and that nothing has been stipulated in the agreement with regard to the occupation of the respondent no.1 of the suit house. Learned Counsel further pointed out that the petitioners have failed to establish their contention that respondent no.1 has trespassed in the suit house in the year 1978 and, as such, the question of accepting the claim of the petitioner that respondents were not mundkars of the suit house cannot be accepted. Learned Senior Counsel has taken me through the impugned judgment and pointed out that no interference is called for in the judgment passed by the Authorities below and, as such, the above petition deserves to be rejected. Learned Senior Counsel further pointed out that the condition stipulated in the agreement to the effect that respondent no.1 would repair the suit house was the consideration of the lease which in no way can affect the rights of the said respondents that they are the mundkars of the suit house. 10 8. The Division Bench of this Court while disposing of LPA No.8 of 1992 in the case of Gulabi (supra) has at para 6 held thus: “6. ..... 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 provision of Section 30 of the Act makes it clear that the entires made in the register in pursuance of 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 entires 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 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 proceeding 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 entires 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 substitute the entry already made in the register in pursuance of proceedings under Section 29 of 11 the Act. Such eventuality arises of substituting the entry when the Mamlatdar gives a declaration under Section 8-A of the Act which is contrary 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.” 9. Considering the said judgment of the Division Bench of this Court, it cannot be disputed that once an application under Section 29 of the Mundkar Act has been disposed of a person is not precluded from filing an application under Section 8A of the Mundkar Act for a declaration as a mundkar but however the Division Bench has also held that Bhatkar can also file an application for negative declaration in case he is aggrieved by any such order. The Division Bench has also considered that under the provisions of Section 30 of the Mundkar Act, the entries are presumed to be true until the contrary is proved. In the present 12 case, it cannot be disputed that after an inquiry under the provisions of Mundkar Act an application for registration as a Mundkar filed by the respondent no.1 came to be rejected. Even this Court while disposing of the Writ Petition has refused to interfere in the conclusions arrived at by the Authorities below that respondent no.1 was a caretaker of the suit house. The respondents have chosen to dispute the said findings before the authorities below and considering the judgment of the Division Bench in Gulabi (supra) the burden on the respondents is quite substantive and heavy. 10. Considering that the application preferred by the respondent no.1 for registration as a mundkar came to be finally decided against the respondent no.1 in the earlier proceedings which were initiated at the instance of such respondent a presumption that the respondent is not a mundkar will have to be drawn in view of the earlier orders passed by the Authorities whilst deciding the application for registration in any subsequent proceedings initiated by such person under Section 8A of the Mundkar Act for a declaration that he is a mundkar of such house. Once such presumption is drawn the burden would heavily be on the 13 respondents to establish that despite of the said orders the respondents are the mundkars of the suit house. On perusal of the impugned judgment passed by the Courts below, I find that the Authorities below have wrongly cast the burden on the petitioners to establish that the respondents are not the mundkars of the suit house. This approach is erroneous as considering the judgment of the Division Bench in the case of Gulabi (supra) it was incumbent upon the Authorities to consider the findings in the orders passed by the authorities whilst disposing of the application for registration of mundkar filed by respondent no.1 as well as the orders passed by this Court while disposing of Writ Petition filed by the respondent no.1 which came to be finally rejected. 11. As the Courts below have not appreciated the evidence on record in accordance with the above set principles, I find it appropriate that without going into the correctness of the merits of the rival contentions as to whether the respondents are the mundkars of the suit house or not it would be appropriate in the interest of justice that the orders passed by the Courts below be quashed and set aside and the matter be remanded to the learned Mamlatdar to decide the reference afresh after giving both the 14 parties an opportunity to lead further evidence if they so desire in the light of the observations made hereinabove. The petitioners would also be permitted to produce the copies of the orders passed by the authorities as well as by this Court while disposing of the application for registration as mundkar filed by the respondent no.1. Needless to say the respondents would be entitled to lead evidence in rebuttal, if they so desire. 12. Considering that the dispute in the present proceeding is being agitated for a considerable period of time, I find it appropriate that the learned Mamalatdar be directed to decide the reference as expeditiously as possible and in any event on or before 31/03/2012. In view of the above I pass the following order: O R D E R (i) The impugned judgment passed by the Authorities below on 11/11/1997 by the learned Mamlatdar as well as the judgment dated 6/07/1999 of the Deputy Collector and judgment dated 10/03/2004 of the Administrative Tribunal are quashed and set aside. (ii) The Mundkar Case No.MND/SR/3/95 is restored to the file of the learned Mamlatdar, Mapusa. (iii) The learned Mamlatdar is directed to decide the said reference as expeditiously as 15 possible and in any event on or before 30/04/2012. (iv) All contentions on merits of both the parties are left open. (v) Rule is made absolute in the above terms with no order as to costs. (vi) Petition stands disposed of accordingly. F.M. REIS, J. NH/-