Case Note & Summary
The dispute pertained to the claim of mundkarship under the Goa Mundkars (Protection from Eviction) Act, 1975 over a house in Anjuna, Goa. The petitioners, owners of the property, had engaged the respondent no.1 as a caretaker to keep the suit house habitable. A lease agreement in 1961 permitted the respondent to repair the house and occupy an outhouse, with the petitioners retaining possession of the main house. The respondent allegedly trespassed into the suit house in 1978. In 1986, the respondent filed an application before the Mamlatdar for registration as a mundkar under Section 29 of the Act, which was dismissed on 28 April 1989. Appeals and a writ petition against that dismissal were all dismissed, with the High Court in 1993 observing that the respondent was a mere caretaker. Simultaneously, the petitioners filed a civil suit for eviction in 1989. In that suit, the Mamlatdar, on reference, held on 11 November 1997 that the respondents were not mundkars. However, the Deputy Collector allowed the respondent's appeal on 6 July 1999, declaring them mundkars. The Administrative Tribunal dismissed the petitioners' revision on 24 July 2003. Aggrieved, the petitioners filed the present writ petition. The core legal issue was whether the Deputy Collector and Tribunal were bound to consider the earlier adverse findings in the Section 29 proceedings. The High Court, relying on the Division Bench decision in Smt. Gulabi Sangtu Devidas v. Smt. Prema Govinda Gaonkar, held that while an order under Section 29 does not bar an application under Section 8-A, the Mamlatdar must take into account the earlier order which carries presumptive value under Section 30, and the burden is heavy on the party seeking a contrary declaration. The Court found that the authorities below had failed to consider the earlier proceedings and misconstrued the evidence, particularly the 1961 agreement which showed respondent was a caretaker, not a mundkar. Consequently, the petition was allowed; the impugned orders were quashed and set aside, with no order as to costs.
Headnote
A) Mundkar Law - Declaration of Mundkarship - Effect of Earlier Order Under Section 29 - Goa Mundkars (Protection from Eviction) Act, 1975, Sections 8-A, 29, 30 - The Mamlatdar conducting inquiry under Section 8-A must bear in mind the earlier order passed under Section 29, which carries a presumption of correctness under Section 30, and the burden lies heavily on the party seeking a contrary declaration. The authorities below failed to consider the earlier findings that the respondent was a caretaker and not a mundkar, vitiating the order. Held that the impugned orders are quashed. (Paras 8)
B) Mundkar Law - Definition of Mundkar - Caretaker Not a Mundkar - Goa Mundkars (Protection from Eviction) Act, 1975, Section 2(p) - A person permitted to occupy premises solely to keep them habitable as a caretaker does not fall within the definition of 'mundkar'. The 1961 agreement indicated the respondent was given the premises for repair and upkeep, not as a mundkar, and the authorities below misconstrued this evidence. Held that the respondent did not prove mundkarship. (Paras 6-8)
Issue of Consideration
Whether the Deputy Collector and Administrative Tribunal erred in declaring the respondents as mundkars without considering the earlier findings in the registration proceedings under Section 29 of the Goa Mundkars (Protection from Eviction) Act, 1975.
Final Decision
The petition is allowed. The impugned orders passed by the Deputy Collector and the Administrative Tribunal are quashed and set aside. The rule is made absolute with no order as to costs.
Law Points
- Legal points not extracted
- When inquiring under Section 8-A of the Goa Mundkars (Protection from Eviction) Act
- 1975
- the Mamlatdar must consider the order passed under Section 29
- which has presumptive value under Section 30
- and the burden is on the party seeking a contrary declaration to prove otherwise
- a person who is a mere caretaker does not fall within the definition of 'mundkar' under Section 2(p)
Case Details
2026 LawText (BOM) (06) 138
WRIT PETITION NO.317 OF 2004
Citation not available, 2011:BHC-GOA:2238
Sudin M.S. Usgaonkar, S.D. Lotlikar, S. Pai Kir
Adelia Albuquerque, Cynthia Albuquerque, Mary Grace (deceased)
Vithal B. Dabholkar, Prabhakar Dabholkar, Kanchan Dabholkar, Kishore Dabholkar, Vanita Dabholkar, Tassim Kandokar, Ashok Kandolkar, Devta Dabholkar, The Administrative Tribunal, Deputy Collector, The Joint Mamlatdar
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Nature of Litigation
Writ petition under Article 226 and 227 of the Constitution of India challenging orders passed by the Deputy Collector and Administrative Tribunal declaring the respondents as mundkars under the Goa Mundkars (Protection from Eviction) Act, 1975.
Remedy Sought
The petitioners sought quashing of the orders allowing the respondents' claim for declaration of mundkarship.
Filing Reason
The petitioners were aggrieved by the reversal of the Mamlatdar's order that the respondents were not mundkars, and the subsequent dismissal of their revision by the Administrative Tribunal.
Previous Decisions
Earlier, the respondents' application for registration as mundkar under Section 29 was dismissed up to the High Court level. In a civil suit filed by petitioners, the Mamlatdar held against mundkarship, but the Deputy Collector allowed the respondents' appeal, and the Administrative Tribunal confirmed.
Issues
Whether the authorities below erred in declaring the respondents as mundkars without considering the earlier findings in the registration proceedings under Section 29 of the Goa Mundkars Act, 1975
Whether the respondents proved that they came within the definition of 'mundkar' under Section 2(p) of the Act
Submissions/Arguments
Petitioners argued that the Deputy Collector and Tribunal misconstrued the 1961 agreement, which showed the respondent was merely a caretaker, and ignored the earlier orders holding that the respondent was not a mundkar.
Respondents argued that the Section 29 proceedings were summary and the findings therein had no relevance, and that the respondent was in occupation even prior to 1961.
Ratio Decidendi
In proceedings under Section 8-A of the Goa Mundkars (Protection from Eviction) Act, 1975 for declaration of mundkarship, the Mamlatdar must consider the earlier order passed in proceedings under Section 29 of the Act, which carries a presumption of correctness under Section 30, and the burden lies heavily on the party seeking a declaration contrary to that order. The failure to consider such earlier findings vitiates the order.
Judgment Excerpts
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.
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 parties and, as such, have come to an erroneous conclusion that the respondents were the mundkars of the suit house.
Procedural History
1986: Respondent no.1 filed application for registration as mundkar under Section 29. 28/04/1989: Mamlatdar dismissed application. 30/01/1991: Deputy Collector dismissed appeal. 20/08/1992: Administrative Tribunal dismissed revision. 10/02/1993: High Court dismissed writ petition. 1989: Petitioners filed Civil Suit no.497/1989 for eviction; issue referred; suit stayed. 11/11/1997: Mamlatdar in case MUND/SR/3/1995 held respondents not mundkars. 06/07/1999: Deputy Collector allowed respondents' appeal and declared them mundkars. 24/07/2003: Administrative Tribunal dismissed petitioners' revision. 2004: Present writ petition filed. 04/10/2011: Judgment by High Court.
Acts & Sections
- Goa Mundkars (Protection from Eviction) Act, 1975: 2(p), 8-A, 29, 30
