Dr. E.S. DA SILVA, J.
This petition challenges the judgment and order dated 26th December, 1986 of the Addl. Collector of Goa which has upset the judgment and order of the Mamlatdar dated 29th March, 1984 and also the judgment and order of the Administrative Tribunal dated 27-1-1989 which has affirmed the aforesaid order of the Collector dated 26-12-1986.
2.It is the case of the petitioner that he has filed a suit against the respondent No. 1 in the Court of the Civil Judge, Junior Division, Margao, seeking for permanent injunction against him from interfering with his property. The said respondent took a stand that he was a mundkar of the property. The issue regarding mundkarship was referred to the Mamlatdar by the Civil Judge for decision in terms of the provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, (hereinafter called the Act). The respondent No. 1 was examined before the Mamlatdar. However, the said respondent failed to make himself available for cross-examination. No other witness was produced by the respondent No. 1 or any witnesses were examined on his behalf. The Power of Attorney of the petitioner and two more witnesses were examined on behalf of the petitioner. By judgment dated 29th March, 1984, the Mamlatdar has held that respondent No. 1 failed to establish that he was a mundkar of the petitioner and c
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nsequently rejected his application. The respondent No. 1 preferred an appeal before the Collector at Panaji which was placed before the Addl. Collector and numbered as Case No. MUND/AC/APL/54/84. The learned Addl. Collector by judgment and order dated 26th December, 1986 held that from the statements on record it had been established that the respondent No. 1 was allowed by the petitioner to stay in the suit but since the year 1974 and since the petitioner had not filed any suit for his eviction from the hut for the period of one year prior to the appointed date, i.e. 12-3-1976, respondent No. 1 was entitled to be declared as a mundkar. Accordingly by allowing the appeal the order of the Mamlatdar was upset.3.Aggrieved by the said judgment, the petitioner filed a revision before the Administrative Tribunal which was numbered as Mundkar Revision Application No. 7 of 1987. The Tribunal also by its judgment dated 27th January, 1989 was of the view that as the respondent No. 1 was residing in the suit hut from 1974 he was entitled under Explanation to section 2(p) of the Act to be declared as a mundkar and accordingly dismissed the revision application. These are the two orders of the Addl. Collector and of the Administrative Tribunal which are being impugned by the present petition.4.Shri Rebello, learned Counsel for the petitioner, has submitted that the judgment of the Addl. Collector has only relied on the aspect of lawful consent given by the petitioner to the respondent No. 1 to live in his property or more precisely on the question of the failure on the part of the petitioner to file eviction proceedings against him inspite of the fact that allegedly the respondent No. 1 had over stayed in the property beyond the period of licence. However, the learned Addl. Collector has not considered at all the aspect of his habitation in the property being of fixed habitation as per the requirements of the provisions of the Act. As such the order having not borne in mind the exact definition of mundkar provided in the Act against the definition of `fixed habitation' the same is thus patently an erroneous order which is bound to be set aside. It was further urged by the learned Counsel that similarly the Administrative Tribunal has also not addressed to the aspect of `fixed habitation' of the respondent No. 1 in the so called dwelling house purportedly consented by the petitioner to be erected in his property. Instead the Tribunal went on the footing that although consent was given for a limited time, on the expiry of that time no eviction proceedings were filed by the petitioner during the period prescribed in the Explanation to section 2(p) of the Act.5.In order to appreciate the grievance of the petitioner's learned Counsel, we must usefully make a reference to the relevant provisions of the Act which defines the concept of "dwelling house" and "mundkar", namely section 2(i), section 2(p) and the Explanation to this last section as well. As per the definition of the "dwelling house" in section 2(i), `dwelling house' means the house in which mundkar resides with a fixed habitation. Section 2(p) defines "mundkar" as 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. According to the Explanation to the aforesaid section a person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent Court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person.6.It is thus seen that in both these definitions the element of fixed habitation is very much there and for the purpose of qualifying a person as a mundkar it is necessary that a person should live in a dwelling house or a house situated in the property of the bhatkar with his consent. i.e. the occupation of the house should be lawful, but at the same time this occupation should be by way of fixed habitation in the dwelling house wherein he lives. It follows therefore that in the very scheme of the Act the concept of `fixed habitation' must connote a substantial degree of permanency of occupation by the mundkar in respect of the house which is to be held as his dwelling house. Further in view of the Explanation to section 2(p) a person should be deemed to lawfully occupy the dwelling house, even if he is a trespasser, if the bhatkar or landlord fails to initiate eviction proceedings against him within the prescribed period that is one year prior to the appointed date, i.e., 12-3-1976 or if proceedings have been already instituted he did not secure the eviction of the trespasser in such proceedings. Shri Rebello contends and rightly that what the Explanation therefore forecloses is only the element of consent of the bhatkar and not also the necessary feature of fixed habitation of the mundkar in the dwelling house. Therefore the learned Counsel urged that both the impugned judgments of the Addl. Collector and of the Administrative Tribunal to the extent that they have grossly overlooked this important and crucial aspect of fixed habitation for rendering the findings arrived at by them are ex facie bad and clearly unsustainable in the eye of law.7.In my view the grievances of the petitioner are sound and deserving acceptance. Indeed there is a lot of substance in the submission of the learned Counsel that from the definition of both the provisions of section 2(i) which refers to dwelling house and section 2(p) which concerns with the meaning of `mundkar' it can be seen that one of the main ingredients in these definition clauses is the requirement of a fixed habitation in the dwelling house by the alleged mundkar without which it is impermissible for anybody to claim to be a mundkar within the scheme of the Act.8.I have gone through the evidence available on record and I am satisfied that nowhere throughout the respondent No. 1's testimony which is otherwise incomplete, the same has been able to substantiate his claim that he was occupying the hut in the property of the petitioner as a mundkar. The mere fact that he has averred or has stated in his examination-in-chief that he was staying in the property of the petitioner as a mundkar and also looking after the plantation is certainly not enough to make a case of mundkarship as claimed by him. Obviously the mere plea of mundkarship without some foundation laid down by a person who makes such a plea is not sufficient to enjoin the competent authority to hold that a person is a mundkar within the meaning and definition of section 2(p) of the Act. Admittedly the evidence of the respondent No. 1 became inadmissible since his cross-examination was not complete for the reason that he did not offer himself for further cross-examination. The learned Mamlatdar has made an express reference to this fact in his judgment dated 29th March, 1984 wherein it is mentioned that the respondent (petitioner before him) after his examination-in-chief was recorded was only partly cross-examined and further cross-examination reserved. However, when the case came up again for further cross-examination, the respondent remained absent and his Advocate who was present reported that he had no instructions. Therefore since the respondent failed to lead evidence the case was adjourned and fixed for evidence of the petitioner. Accordingly the petitioner led evidence on his behalf and closed his case. In this respect it is to be noted that the contention of the respondent's lawyer before the Mamlatdar that, since the petitioner has admitted in the Civil Suit that the respondent No. 1 had his residential hut in the petitioner's property wherein he was residing along with his family members for the last 4 to 5 years as a trespasser this admission would be by itself sufficient to prove that the respondent was residing in the property as a mundkar, once no proceedings were instituted by the petitioner within one year prior to the commencement of the Act, is manifestly without any merit. It is true that the petitioner has averred in the plaint of the suit that the respondent was residing in his property since 1974 as a trespasser. Shri Rebello has also admitted that no suit or proceedings were filed by the petitioner within one year prior to the appointed date (12-3-1976) as contended by the respondent's advocate. However, according to the learned Counsel, the effect of this admission at the most would mean that the element of consent not only for the entry of the respondent in the petitioner's property but also to the continuation of this occupation was still there and as such his occupation would remain lawful in the eye of law. However, this does not mean, according to the learned Counsel, that this stay could be held by any stretch of imagination as a stay with fixed habitation which is one of the main requirements of the definition of mundkar in terms of section 2(p) of the Act. Nowhere in the pleadings the petitioner has so averred and on the contrary the respondent has miserably failed to show or establish that whatever occupation held by him of the suit hut is by way of a fixed habitation, or fixed occupation. On the other hand, the evidence of the petitioner's power of Attorney Aliza Sequeira clearly established that the respondent No. 1 was allowed to stay in the property for a short period by her and that she had informed her that by December, 1974 he would leave the place. In her deposition Aliza further states that the petitioner was informed by her only subsequently and that he asked her why she allowed the respondent to stay in the suit property, at which time she replied that because he promised to stay only for a short period as he had no shelter. Aliza has further stated that the petitioner did not consent to the stay of the respondent in the property and he always objected to the same. It is true that this part of the deposition of Aliza was denied by the respondent in cross-examination, but the fact remains that the remaining part of the evidence which refers to the fact of the respondent having been allowed to stay in the property by her for a short period and the circumstance of the petitioner having been informed about this consent only subsequently was not controverted by the respondent throughout her cross-examination. Further the testimony of Aliza also proves, without any challenge on the part of the respondent, that he is a resident of Chandor which fact by itself rules out the possibility of the respondent having his fixed habitation in the suit hut.9.It follows therefore that there is no evidence on record led by the respondent himself or from any other source to prove that he lives in the property of the petitioner, occupying the suit hut as his fixed habitation and instead there is uncontroverted evidence led by the petitioner that the respondent is resident of Chandor. The requirement of law as far as the definition of `mundkar' is concerned being the lawful occupation of the dwelling house by the person in the property of the bhatkar, with his consent, coupled with the fact that this occupation should be a permanent one, i.e. with a degree of permanence as a fixed habitation, it is obvious that the facts on record unmistakably prove that the respondent No. 1 has failed to establish his claim of mundkarship before the Mamlatdar within the meaning of section 2(p) of the Act.10.In this view of the matter the impugned judgments of the Administrative Tribunal as well as of the Addl. Collector which has reversed the judgment of the Mamlatdar are to be held as wrong, illegal and without jurisdiction being thus bound to be unsettled.11.In the result the petition is allowed and both the judgments and orders dated 27th January, 1989 and 26th December, 1986 are hereby quashed and set aside.At this stage Shri Rebello, on behalf of the petitioner, states that consequent upon the setting aside of the impugned orders, he is not pressing for his prayer (a) regarding declaration of the Act as ultra vires Article 14. Accordingly rule made absolute in terms of prayer (b) only with no order as to costs.
"1995 (2) BCR 166"