: 1 : IN THE HIGH COURT OF BOMBAY AT GOA.] WRIT PETITION NO. 243 OF 2003 Shri Cazi Mohammad Patchmiam, r/o Caziwada, Ponda Goa. ... Petitioner V e r s u s 1. Smt. Sitabai Balaram Nipanikar, House No.164, Caziwada, Ponda Goa. 2. Shri Cazi Raziodin Ali, R/o Caziwada, Ponda Goa. 3. The Administrative Tribunal Goa, Coelho Pereira Building, Panaji Goa. 4. The Deputy Collector, S.D.O. Ponda Sub Division, Ponda Goa. ... Respondents Ms. Andrea Fernandes, Advocate holding for Mr. Joseph Vaz, for the Petitioner. Mr. V. Menezes, Advocate for the Respondent No.1. CORAM: R. M. SAVANT, J. Dated: 5th March, 2010. : 2 : ORAL JUDGMENT: 1. In the above Petition, the Petitioner who is the owner of the property in question takes exception to the judgment and order dated 31.3.1998 passed by the Deputy Collector and S.D.O., Ponda Goa, and the judgment and order dated 27.12.2002 passed by the learned President of Administrative Tribunal, Goa by which the judgment and order passed by the Deputy Collector has been confirmed. The issue which arises is as to whether the Respondent No.1 herein is entitled to be registered as a “mundkar” in terms of Section 29 of the Goa, Daman and Diu Mundkars ( Protection from Eviction ) Act, 1975 ( hereinafter referred to as 'the said Act' ). 2. The factual matrix can be stated thus : The Respondent No.1 herein is the wife of one Balaram N. Nipanikar who had filed an application for registering him as a mundkar of the dwelling house bearing house No. 66 w-6 situated in survey No.163/4 of Village Ponda which was situated in the : 3 : property of the bhatkar i.e. the Petitioner abovenamed. The said application filed by the husband of the Respondent No.1 came to be opposed by the Petitioner abovenamed by filing a written statement. It was the case of the Applicant in the said application for registration that he is the mundkar of the said house and that the said dwelling house was constructed by him about 25 years back. The said house originally was a hut and that in the year 1986 under a valid licence issued by the Ponda Municipal Council, it was repaired by erecting laterite stone walls and a roof was put on it is of tin sheets. The said case of the Respondent was denied by the Petitioner abovenamed. It was the case of the Petitioner /Opponent that the Applicant/Respondent was not his mundkar but was a tenant in respect of the said dwelling house paying him a monthly rent of Rs.5/-. In support of his case, the Respondent had examined herself and two other witnesses namely Chandrakant Vithal Matonkar and Harischandra N. Halarnkar. The xerox copy of the Municipal licence was produced which came to be numbered as Exhibit -1 and the receipts in respect of the payment of Municipal house tax from the year 1972-73 to 1987 and 1988 were produced which were marked as Exhibit 4. The witnesses of the Applicant deposed that the Respondent/Applicant was residing in the said : 4 : house for the last 25 years prior to the said application. However, they could not state in what capacity he was so residing. The Petitioner examined himself and produced the deposition of the said Balaram Nipanikar in survey case No.109/Ponda wherein he has deposed that he was paying Rs.5/- per month as rent of the house to the Petitioner. The xerox copy of the said deposition was produced by him which was marked at Exhibit 1. He deposed that the said Balaram Nipanikar and thereafter on his death, his wife has been paying the rent to him and that he had not issued any rent receipts as relations between the parties were cordial. 3. It would be relevant at this stage to refer to the definition of the Mundkar under the said Act. The definition is contained in Section 2(p). The same reads thus :- “(p) “mundkar” means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include- (i) a person paying rent to the bhatkar for the occupation of the house; : 5 : (ii) ............................. (iii) ............................... (iv) ............................... 4. It would also be relevant to refer to Section 29 of the said Act which is a provision invoked by the Respondent for registering herself as a mundkar. The same is as follows :- “29. Register of mundkars.- (1) In respect of every village, the Government shall cause a register of mundkars to be prepared and maintained in the prescribed manner. (2) The register shall contain the following particulars, namely:- (a) the particulars and description of the dwelling house; (b) the location of the dwelling house; (c) the name and address of the bhatkar; (d) the name and address of the mundkar; (e) the nature and extent of service, rendered to the bhatkar or the amount of ground rent if any paid; (f) the occupation of the mundkar; (g) the rights referred to under section 6; and (h) such other particular as may be prescribed. : 6 : (3) The register shall be prepared and maintained by the Mamlatdar after such inquiry as may be prescribed. 5. It is well settled by the pronouncement of this Court that the proceedings for registering a mundkar are in the nature of summary proceedings and that the entry made in the register of mundkar of a particular village has only presumptive value and that under Section 8-A of the said Act, a person can seek a declaration of being a mundkar whereas the bhatkar can seek a negative declaration that the person in occupation is not a mundkar. A reference could be made to the judgment of the Division Bench of this Court reported in 1995(1) GLT page 154 in the matter of Smt. Gulabi Sangtu Devidas and others V/s Smt. Prema Govinda Gaonkar and others. The definition clause therefore postulates that the person who is paying rent to the bhatkar for the occupation of the house is not included in the definition of the term mundkar. 6. The application filed by the Respondent herein for registering herself as a mundkar came to be rejected by the Mamlatdar by holding that the Applicant is not a mundkar. The Mamlatdar relied upon the statement made by the husband of the : 7 : Respondent No.1 on oath in the said survey case No.109/Ponda wherein he had stated that he was paying Rs.5/- as monthly rent of the house and considering the fact that the said statement can be used against the Respondent in another proceeding, the Joint Mamlatdar was of the view that the Applicant was excluded from being a mundkar under the provisions of clause (i) of Section 2(p) of the said Act. 7. Being aggrieved by the judgment and order dated 20.4.1990 of the Joint Mamlatdar, Ponda, the Respondent filed an Appeal which came to be numbered as MUND/APL/17/97 under Section 25 of the said Act. The said Appeal was heard by the Deputy Collector and S.D.O., Ponda Goa. The Appellate authority was of the view that the statement made in his deposition in the said survey case No.109/Ponda could only be used for contradicting the said Balaram and could not be used as a conclusive proof in another case. The Appellate authority placing reliance on the construction licence issued to the Respondent and the municipal tax receipts which were public documents as also considering the fact that the house tax was being paid by the Respondent since the year 1972 was of the view of the Mamlatdar had fallen into an error : 8 : by solely relying upon the deposition of the Respondent in the said survey case whilst rejecting her application. The Appellate authority was of the view that if the Petitioner was the owner i.e. the bhatkar and the Respondent was a tenant as he claimed, than there was no reason for the Petitioner to allow the Respondent to reconstruct the house and pay the house tax. The Appellate authority therefore set aside the order passed by the Joint Mamlatdar, Ponda Goa, and ordered the registration of the Respondent/Applicant as a mundkar of the house in question. The Petitioner herein who was the Respondent in the said Appeal thereafter filed Mundkar Revision Application No.65/98 impugning the order dated 31.3.1998 passed by the Appellate authority, the said Revision Application filed by the Petitioner came to be rejected by the Administrative Tribunal, Goa, by the judgment and order dated 27.12.2002. In rejecting the said Revision Application the Tribunal has confirmed the finding of the Appellate authority. 8. As indicated above, the aforesaid two orders are the subject matter of the above Petition. I have heard Ms. Andrea Fernandes, learned Counsel for the Petitioner and Mr. V. Menezes, learned Counsel for the Respondent. On behalf of the Petitioner : 9 : the deposition of the Respondent in the survey case No.109/Ponda is primarily relied upon. It is contended that in view of the statement which was made by the Respondent on oath, both the Appellate authority as well as Administrative Tribunal have erred in directing the registration of the Respondent as a mundkar. The learned Counsel for the Petitioner relied upon the judgment of the Apex Court reported in 2007(14) SCC page 63 in the matter of Thimmappa Rai V/s Ramanna Rai and others. The learned Counsel further submitted that since it is an admission of the Respondent as contained in the deposition that the rent was being paid for the occupation of the house, she could not come within the definition of the term mundkar as contained in Section 2(p) and for the said purpose sought to rely upon the judgment of the Division Bench of this Court reported in 1990(2)GLT 347 in the matter of Gopal Mahadev Sawant and others V/s Mariano S. Jose Godinho and others. On the other hand, Shri Menezes, the learned Counsel appearing for the original Applicant/Respondent contended that since two authorities i.e. Appellate authority and Administrative Tribunal have recorded a finding in favour of the Petitioner, this Court should not exercise its Writ jurisdiction under Article 227 of the Constitution of India. The learned Counsel : 10 : further submitted that inquiry contemplated under Section 29 in the matter of registration of mundkar is summary in nature and therefore in the context of the facts of the present case, the orders of the authorities below directing the registration of the Respondent as a mundkar cannot be faulted with. 9. I have considered the rival contentions. It would be pertinent to note that the application filed by the Respondent herein was for registering herself as a mundkar. The said application can be filed under Section 29 of the said Act. The said proceedings for registration as held by the judgment of this Court are in the nature of summary proceedings and are in contrast to the proceedings which are initiated for a declaration as a mundkar under Section 8-A or for a negative declaration under the said provision. The said proceedings under Section 8-A are elaborate proceedings where the parties are given opportunity to produce the evidence in support of their respective cases. It is in the context of the nature of the proceedings that challenge to the impugned orders would have to be considered. It is not disputed that the Respondent was a cobbler and was belonging to the lower strata of society. No doubt it is true and is also not disputed by Mr. : 11 : Menezes, the learned Counsel for the Respondent that the Respondent in the said survey case No.109/Ponda has deposed that he was paying rent of Rs.5/- for the occupation of the house. The said statement therefore by itself would not preclude the authorities from considering the other material on record considering the nature of the proceedings. Apart from the said fact, the said statement as rightly held by the Appellate authority could be considered only for contradicting the Respondent in subsequent proceedings and would not conclude the matter by itself. 10. In the instant case, what is significant is that the Respondent has paid house tax from the year 1972 till the year 1988 for which she has produced the receipts and which receipts were also exhibited. It would also be significant to note that the Respondent had also applied for construction licence to the Ponda Municipal Council which construction licence was issued pursuant to which the hut which was existing in the property has been reconstructed. If the Respondent was in fact a tenant as claimed by the Petitioner abovenamed, the Petitioner would have taken exception to the construction of the house and payment of the : 12 : house tax by the Respondent. Significantly, both the aforesaid things have been done by the Respondent without any opposition from the Petitioner. The Petitioner therefore can be said to have acquiesced in the construction as also the payment of the house tax and therefore has impliedly accepted the fact that the occupation of the Respondent was in the capacity of a mundkar. In my view, considering the strata of the society from which the Respondent hails and considering the aforesaid two documents, the findings of the Appellate authority and the Administrative Tribunal cannot be faulted with. 11. The reliance of the Petitioner on the judgment of the Apex Court ( supra ) in my view is misplaced. The question before the Apex Court was the admissibility of an admission made in the earlier proceedings, the Apex Court in the said context has held that there was no necessity to prove the same. Such is not the situation in the instant case where the Petitioner accepts that the said statement was made in the deposition in said survey case No.109/Ponda. The question is whether the other material evidence like the construction licence and house tax receipts can be glossed over. The answer has to be obviously no. The reliance on : 13 : the judgment of Division Bench of this Court ( supra ) by the learned Counsel for the Petitioner is also misplaced. The issue before the Division Bench in the said case is concerned, was as to whether the person in occupation of a land who was paying rent could come within the definition of the term mundkar under the said Act. The contention raised on behalf of the bhatkar in the said case was that the rent was for the land on which the house was situated and not for the house. The said judgment has no application in the factual situation of the present case. 12. Both the Appellate authority and Administrative Tribunal having reached the conclusion and having recorded concurrent findings as regards the registration of the Respondent as a mundkar, in my view, no case for interference in the Writ jurisdiction of this Court under Article 227 of the Constitution of India is made out. The Writ Petition is accordingly dismissed. Rule discharged with no order as to costs. R. M. SAVANT, J. at*