IN THE HIGH COURT OF BOMBAY AT GOA **** WRIT PETITION NO. 86 OF 1997 Dr. Vasudeo Rajendra Deshprabhu, major in age, agriculturist, r/o Nanerwada, Pernem, Goa. ... Petitioner. Versus 1. State of Goa, through the Chief Secretary to the Government of Goa, having his office at Secretariat, Panaji, Goa, 2. Mamlatdar of Pernem Taluka, having his office at Pernem, Goa, and 3. Shri Sheikh Hassan Sheikh Moinuddin, major in age, retired, r/o near Zori, Nanerwada, Pernem, Goa. ... Respondents. Shri V. B. Nadkarni, Senior Advocate with Shri Y. V. Nadkarni, advocate for the petitioner. Shri H. R. Bharne, Government Advocate for respondent nos. 1 and 2. None for respondent no.3. CORAM : A. M. KHANWILKAR & P. V. HARDAS, JJ. DATE OF RESERVING THE JUDGMENT: 10th November, 2003. DATE OF PRONOUNCING THE JUDGMENT: 16th December, 2003. JUDGMENT (Per Khanwilkar, J.) By this Writ Petition under Article 226 of the Constitution of India, the petitioner has challenged the constitutional validity of the Goa Mundkars (Protection From Eviction) (Amendment) Act 1993, (Goa Act no.6 of 1995) (31.3.1995) (hereinafter referred to as "the Amendment Act of 1993") and the Goa Mundkars (Protection From Eviction) - 2 - (Amendment) Act, 1995, (Goa Act No. 2 of 1996) (19.1.1996) (hereinafter referred to as "the Amendment Act of 1995"), on the ground that the said Amendment Acts are ultra vires the petitioner’s fundamental rights enshrined under Article 14 read with Article 13(2) of the Constitution of India. Inasmuch as, the mundkar is entitled to indefinitely wait for any number of years and yet exercise his right to purchase the dwelling house at the pegged down price and area freezed as on 12th March, 1976, which results in absurd, incongruous, unreasonable, unjust, arbitrary and discriminatory situation. 2. Briefly stated the petitioner has approached this Court asserting that the petitioner has over a dozen cases of mundkar pending before the Court of the learned Mamlatdar or Joint Mamlatdar in Pernem. Respondent no.3 is allegedly claiming to be mundkar of a dwelling house in the petitioner’s property bearing survey no.485/6 of Pernem Taluka. To provide for better protection to mundkars against eviction from their dwelling houses, for granting them right to purchase the same and to make certain other provisions related thereto, the Goa, Daman and Diu Mundkars (Protection From Eviction) Act 1975 (Act no.1 of 1976) (hereinafter referred to as "the Principal Act"), was enacted, which came into force with effect from 12th March, 1976, which is the appointed date. The historical background and the objects and reasons for which this enactment came into being as well as the scheme of the relevant provisions thereof, has already - 3 - been expounded by this Court in 1998(1) Goa L.T. 100 in the case of Kum. Maria Eliza Marques vs. Shri Madhukar M. Kum. Maria Eliza Marques vs. Shri Madhukar M. Kum. Maria Eliza Marques vs. Shri Madhukar M. Moraskar & Ors. Moraskar & Ors. Moraskar & Ors., and in 2001(1) Goa L.T. 213, Aggrieved Aggrieved Aggrieved Bhatkars’ Association & Ors. vs. State of Goa & Ors. Bhatkars’ Association & Ors. vs. State of Goa & Ors. Bhatkars’ Association & Ors. vs. State of Goa & Ors. It is not necessary for us to dwell upon the entire scheme of the enactment. Suffice it to mention that Section 15 of the Act provides for right of mundkar to purchase the dwelling house and Section 16 provides for procedure for purchase under Section 15. Section 15 "as it appeared in the Principal Act", reads thus:- "15. Right of mundkar to purchase the Right of mundkar to purchase the Right of mundkar to purchase the dwelling dwelling dwelling house. - house. - house. - (1) Notwithstanding anything to the contrary contained in any law for the time being in force, a mundkar shall, subject to the provisions of this Act have the right to purchase the dwelling house occupied by him. (2) The maximum extent of land round or appurtenant to the dwelling house which a mundkar is entitled to purchase under this section shall be as indicated under sub-clause (i) of clause (i) of section 2. (3) The purchase price payable by the mundkar for his dwelling house shall be the market value of the dwelling house purchased and the improvement thereon, other than the improvement, if any, belonging to the mundkar: Provided that, when the house, hut or any structure with its materials belong, wholly or partly, to the mundkar, the corresponding value shall be deducted from the market value and, in such case, the purchase shall be the balance left after deducting the corresponding value from the market value: Provided further that when a mundkar has been permitted to occupy the dwelling house by the bhatkar for the purpose of cultivation of or for the purpose of watching and protecting, an agricultural land of the bhatkar and is - 4 - actually rendering such service and continues to render such service with or without remuneration or where a mundkar is an agricultural labourer or a village artisan, then the purchase price payable by such mundkar and a member of his family shall be twenty per cent of the market value payable. (4) The purchase price payable under sub-section (3) in respect of the dwelling house shall be paid in not more than ten equal annual instalments: Provided that, it shall be open to the mundkar to pay the entire purchase price in lumpsum, in which case, the amount payable shall be only ninety per cent of the purchase price. (5) The market value of the dwelling house, shall be decided by the Mamlatdar, after making such inquiry as he deems necessary and in the prescribed manner." This provision was amended in the year 1979. We are not concerned with the said amended provision in this petition. Thereafter, the Governor of Goa in exercise of powers under Clause (1) of Article 213 of the Constitution of India, promulgated the Ordinance known as Goa Mundkars (Protection From Eviction) (Amendment) Ordinance, 1993, on 19th April, 1993, which attempted to amend Section 15 of the Principal Act. By passage of time, that Ordinance lapsed. Subsequently, the Bill was introduced in the Legislative Assembly of Goa, being Bill No.25 of 1993 on 26th June, 1993, to amend Section 15 of the Principal Act. However, the Bill was returned to the Assembly for reconsideration by the Governor in accordance with the powers vested in him under Article 200 of the Constitution of India. Thereafter another Bill was passed by the Goa Legislative Assembly, which was translated into the Amendment Act of 1993. That Bill was - 5 - passed on 28th March, 1995, which received assent of the Governor on 31st March, 1995 and came to be published on the same day. The Act clearly provides that the Amendment therein would come into force with effect from 16th April, 1993. This Amendment Act of 1993 has amended Sub-section (3) of Section 15 of the Principal Act by insertion of the words "as prevailing on the appointed day", after the words "dwelling house purchased" and before the words "and the improvement thereon". The effect of this amendment is that the mundkar is entitled to purchase the dwelling house at the price as prevailing on the appointed date, i.e. 12th March, 1976. This amendment has been challenged by way of the present petition being hit by Article 14 read with Article 13(2) of the Constitution of India. After the amendment, Sub-section (3) of Section 15 would read thus:- "15(3) the purchase price payable by the mundkar for his dwelling house shall be the market value of the dwelling house purchased ‘as prevailing on the appointed date’ and the improvement thereon, other than the improvement, if any, belonging to the mundkar." The object and reasons for the said Amendment of 1993 as reproduced in paragraph 26 of the Writ Petition read thus:- "26. In the introduction of the Bill, the statement of Objects and Reasons given are as under:-- ‘It has been noticed that some of the Mamlatdars/Joint Mamlatdars, while determining the purchase price payable by Mundkars for dwelling house, had taken into consideration the basis of the market value prevailing in - 6 - the vicinity of the locality at the time of fixing the said price. The aforesaid approach did not appear to be on sound footing since the appointed date when the Goa, Daman & Diu (Protection From Eviction) Act, 1975 came into force was 12-3-1976 and the right of the Mundkars to purchase dwelling house came into existence on that date and hence the purchase price had to be as on the appointed date i.e. 12-3-1976 and consequently the market value thereof is required to be determined as prevailing on that date. In order to obviate the aforesaid difficulties faced by the Mundkars, the Goa Mundkars (Protection From Eviction) (Amendment) Ordinance, 1993 (Ordinance no.1 of 1993) has been promulgated by the Governor of Goa on 16-4-1993". The State Legislature passed another Bill to amend Section 2(i) of the Principal Act which defines "dwelling house". This Bill no.27/95 was passed on 14th December, 1995 by the Goa Legislative Assembly, which is known as Amendment Act of 1995. The said Act was assented to by the Governor on 19th January, 1996 and published in the Official Gazette on 29th January, 1996, which was to come into force with effect from 27th September, 1995. This Amendment Act of 1995 brought about two amendments to item (i) of Clause (i) of Section 2 of the Principal Act, namely, in the said item (a) after the expression "if the land is" and before the expression "within the jurisdiction", the words, "on the appointed date" shall be inserted; and in the first proviso to the said item (b), after the word "where" and before the expression "the dwelling house", the words "on the appointed date", shall be inserted. The definition of "dwelling house", "as it appeared in Section 2(i) of the Principal Act" reads thus:- - 7 - "(i) ‘dwelling house’ means the house in which mundkar resides with a fixed habitation, whether such house was constructed by the mundkar at his own expense or at the bhatkar’s expense or with financial assistance from the bhatkar and includes - (i) (a) the land on which the dwelling house is standing and the land around and appurtenant to such dwelling house, subject to a maximum limit of five metres, if the land is within the jurisdiction of a village Panchayat, and two metres, if it is not within such jurisdiction, from the outer walls of the dwelling house: Provided that, where the distance between the outer walls of the dwelling house of the mundkar and of the house of the bhatkar, or between the outer walls of the dwelling house of a mundkar and of the dwelling house or houses of one or more mundkars, is less than double the aforesaid limit the land appurtenant to such dwelling house shall be half of the land lying between the outer walls of the dwelling house of such mundkar and the bhatkar or between the outer walls of the dwelling house of such mundkar and the outer walls of the dwelling house or houses of such other mundkar or mundkars, as the case may be; or (b) three hundred square metres of land including the land on which the dwelling house is standing: Provided that where the dwelling house is within the jurisdiction of a municipal council the dwelling house shall include two hundred square metres of land including the land on which the dwelling house is standing: Provided further that where there is on the appointed date in the property of the bhatkar, the house of the bhatkar or a dwelling house of one or more than one mundkar, and the total extent of the land is inadequate to provide each of them the extent indicated in this clause, the dwelling house shall include, in the absence of any agreement, the land apportioned in equal shares, as far as practicable, by the Mamlatdar. Explanation Explanation Explanation I. - The option contemplated - 8 - under this clause shall be exercised by the Mundkar in the manner prescribed. Explanation Explanation Explanation II. - II. - II. - For the purpose of this clause ‘house’ means an entity in itself and shall not include a Dharmashala or such other building belonging to or in possession of a religious or charitable institution and issued for temporary accommodation and such other building as may be meant for letting out on hire and a portion of which has been let out. (ii) the cattle shed, stable, pig-sty, workshop or such other structure connected with the business or profession of the mundkar; and (iii) the customary easement, if any, which the residents of the dwelling house have been enjoying for access to a public road or a well or any other place;". (Emphasis supplied) There was an amendment in 1985, whereby the expression "whether such house was constructed by the mundkar at his own expense or at the bhatkar’s expense or with the financial assistance from the bhatkar" (as emphasized above) came to be deleted. We are not concerned with that aspect in the present petition. The validity of the Amendment Act of 1985 was put in issue in the case of Maria Eliza Marques Maria Eliza Marques Maria Eliza Marques (supra). We are not concerned with the said challenge. Be that as it may, after the subject Amendment Act of 1995, the definition of "dwelling house" has undergone substantive change inasmuch as irrespective of the length of time when the mundkar will exercise his right to purchase the dwelling house, by virtue of right bestowed on him under Section 15 of the Act, the area of dwelling house which he could so purchase has been freezed as on the appointed date, i.e. 12th March, 1976. According to the petitioner, even this amendment is hit by Article 14 read with Article 13(2) of the Constitution of - 9 - India. 3. The points which were canvassed before us during the course of arguments were restricted to challenge of the Amendment Acts of 1993 and 1995, respectively, only on the ground that both the amendments were hit by Article 14 read with Article 13(2) of the Constitution of India. This argument proceeded on the premiss that the said Amendment Acts have neither been included in the Ninth Schedule of the Constitution of India, nor received the assent of the President of India, for which reason it will have no protection under Articles 31A, 31B or 31C of the Constitution of India and on account of which challenge to the said Amendment Acts on the ground that it infringes Article 14 of the Constitution of India, was open. Insofar as the grounds of challenge to question the constitutional validity on the touchstone of Article 14 of the above said provisions introduced by the Amendment Acts of 1993 and 1995 respectively, it was submitted as follows:- (a) The Principal Act neither provides for deemed vesting of ownership rights in a mundkar on the appointed date, as is the case under the Goa Agriculture Tenancy Act, nor mandates or provides for any time limit for exercise of option under Section 16 of the Act for purchase of the rights under Section 15 of the Act, nor there is any provision for the consequences to follow in case of exercise of right to purchase even after a reasonable period. (b) The impugned Amendment Acts were arbitrary and/or unreasonable, since - 10 - irrespective of the date of exercise of right to purchase by the mundkar, the price payable to the bhatkar is only the market price as on the appointed date (i.e. 12th March, 1976), thereby resulting in hostile discrimination and/or equality of unequals; (c) The amendment Act of 1995 freezes the area of the dwelling house as on the appointed date, which aspect has already been held by this Court to be absurd and unjust in the case of Fatima D’Souza & Fatima D’Souza & Fatima D’Souza & Anr. Anr. Anr. vs. Joint Mamlatdar II of Salcete vs. Joint Mamlatdar II of Salcete vs. Joint Mamlatdar II of Salcete & Ors. Ors. Ors., reported in 1989(1) Goa L.T. 67. It was contended that there is no indication in the Amendment Act of 1995 that the same was introduced to undo the decision of this Court in Fatima Fatima Fatima D’Souza’s D’Souza’s D’Souza’s case (supra) and, therefore, the efficacy of that decision could not have been whittled down in this manner; (d) Besides the challenge to the impugned Acts being hit by Article 14 of the Constitution, it is also contended that the rights of the bhatkars are extinguished in violation of Article 300A of the Constitution as no compensation at all is being paid to the bhatkars as there is no compulsion on the mundkars to purchase the land in respect of which the rights of the bhatkars are extinguished; (e) It is also contended that eventhough the impugned Acts have no protection under Article 31A of the Constitution, the principle underlying the said provisions in particular, as embodied in the second proviso to clause (1) thereof ought to prevail; that eventhough it is an enactment for furtherance of agrarian reforms, even then provision for payment of compensation at a rate which shall not be less than the market value is an imperative. 4. On the other hand, Shri Bharne for the respondents, contends that the Principal Act has been held to be a piece of legislation relating to agrarian reforms and inserted in the Ninth Schedule to the Constitution of India. - 11 - He submits that having regard to the laudable objects of the Act the challenge to the provisions of such enactment will have to be viewed in that perspective. Shri Bharne fairly submits that from the record it is not possible to establish that the Amendment Acts of 1993 and 1995 have received presidential assent or that they have been included in the Ninth Schedule of the Constitution. He submits that in any event, the argument regarding the Amendment Acts being ultravires Article 14, is not available to the petitioner. According to him that issue is already concluded as a Division Bench of this Court in the case of Aggrieved Aggrieved Aggrieved Bhatkars Association Bhatkars Association Bhatkars Association (supra) has held the Amendment Acts to be intravires the Constitution. He submits that in view of the exposition in the case of Minoo Framroze Balsara vs. the Minoo Framroze Balsara vs. the Minoo Framroze Balsara vs. the Union of India & Ors. Union of India & Ors. Union of India & Ors., AIR 1992 Bom. 375, specially paragraph 14, it is not open for this Court to go into the question of validity of the same enactments merely because some new ground is pressed into service. Shri Bharne further contends that the issue as to whether the State is bound to pay compensation in cases of deprivation of property under law made under Article 300 A is also no more res integra. According to him, the related question is what is the criteria for determination of quantum of compensation and whether the market value of the property acquired by the State is to be paid. Shri Bharne has placed reliance on the decision of our High Court in the case of Basantibai Basantibai Basantibai Fakirchand Khetan & Ors. vs. State of Maharashtra & Anr., Fakirchand Khetan & Ors. vs. State of Maharashtra & Anr., Fakirchand Khetan & Ors. vs. State of Maharashtra & Anr., - 12 - reported in AIR 1984 Bom. 366, wherein the provisions of the Maharashtra Housing and Area Development Act, 1976, were challenged, providing for compensation being hit by Article 300 A, notwithstanding the repeal of Articles 19(1)(f) and 31(2) of the Constitution of India. He submits that this decision was reversed by the Apex Court in the case of State State State of Maharashtra & Anr. vs. Basantibai Mohanlal Khetan & of Maharashtra & Anr. vs. Basantibai Mohanlal Khetan & of Maharashtra & Anr. vs. Basantibai Mohanlal Khetan & Ors. Ors. Ors., reported in AIR 1986 S.C. 1466. He has also placed reliance on the decision of the Full Bench of the Kerala High Court in the case of Smt. Elizabeth Samuel Aaron & Ors. vs. Smt. Elizabeth Samuel Aaron & Ors. vs. Smt. Elizabeth Samuel Aaron & Ors. vs. State of Kerala & Ors. State of Kerala & Ors. State of Kerala & Ors., reported in AIR 1991 Ker. 162, to contend that the argument that right to adequate compensation remains the basis of Article 300 A of the Constitution, has been negatived. The learned counsel has also placed reliance on the decision of the Apex Court in the case of Jilubhai Jilubhai Jilubhai Nanbhai Khachar etc. vs. State of Gujarat & Anr. Nanbhai Khachar etc. vs. State of Gujarat & Anr. Nanbhai Khachar etc. vs. State of Gujarat & Anr., reported in AIR 1995 S.C. 142, to contend that whilst interpreting Article 300 A of the Constitution of India the Apex Court repelled the challenge to the constitutionality of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982. He has placed reliance on the observation in the said decision which deal with the argument that considerable time kept for payment and loss of rupee value would render the compensation payable illusory. That contention was negatived by the Apex Court and on the same analogy the grievance of the petitioner in this petition will have to be rejected. Shri Bharne contends that different - 13 - Acts may provide different principles relating to the payment of compensation and in the context of the object of extinguishing rights of bhatkars in the present enactment, challenge under Article 14 of the Constitution cannot be countenanced, even if the purchase price provided in Section 15(3) may not correspond to fair value or market value. Learned counsel placed extensive reliance on the decision of this Court in the case of Kum. Maria Eliza Marques vs. Kum. Maria Eliza Marques vs. Kum. Maria Eliza Marques vs. Madhukar M. Moraskar & Ors. Madhukar M. Moraskar & Ors. Madhukar M. Moraskar & Ors., (supra), which elaborately deals with the history and objective behind the enactment of the Principal Act; as well as the decision reported in the case of Aggrieved Bhatkars’ Association Aggrieved Bhatkars’ Association Aggrieved Bhatkars’ Association (supra), to contend that the challenge to the validity of the Amendment Acts was not open as that has already been negatived in this Judgment. Learned counsel has also placed reliance on the decision of the Apex Court in the case of D. C. Bhatia & Ors. vs. D. C. Bhatia & Ors. vs. D. C. Bhatia & Ors. vs. Union of India & Anr. Union of India & Anr. Union of India & Anr., reported in (1995)1 S.C.C. 104, to contend that the Court cannot consider whether the cut off point provided by legislation has been done on an understandable basis and the validity of the provisions cannot be questioned on the ground of lack of legislative wisdom. He submits that classification need not be with mathematical exactitude as the Legislature ought to be given considerable latitude for making classification having regard to the surrounding circumstances and facts, moreover when it is well-settled that there is always a presumption as to the constitutionality of the legislation. According to him, the - 14 - petitioner has not discharged the burden of demonstrating the impugned Amendment Acts as being unconstitutional in any manner. 5. As mentioned earlier, the record clearly establishes that the assertion made by the petitioner that both the Amendment Acts are neither included in the Ninth Schedule to the Constitution, nor have received the assent of the President of India has remained uncontroverted. In our view that position is indisputable. As a consequence,