Judgment:
ORDER
N.J. Pandya, J.
1. An important question of interpretation of right of appeal given under the Goa, Daman and Diu Mundkar's (Protection From Eviction) Act, 1975, hereinafter referred to as the 'Mundkar Act' is raised in relation to the duty cast on the Civil Court to make a reference to the Mamlatdar or the Collector of an issue which is required to be settled, decided or dealt with by either of the said authorities under the said Mundkar Act.
2. The rival contentions can be summarized as under :--
There are two views in the matter. One view is to the effect that though there is provision in section 32 of the Mundkar Act of referring the issue and further making a decision given by the Mamlatdar or the Collector, as the case may be, binding upon the Civil Court it will not so bind the Civil Court unless all the remedies of appeal and revision available under the Mundkar Act are exhausted. Obviously, this will depend upon the effect of the finding given by the Mamlatdar pursuant to the reference under section 32 of the Mundkar Act whether it is chosen to be carried in appeal or revision, as the case may be.
3. The other view is that the decision given by the Mamlatdar attains finality as the Civil Court is bound by it and later on, so far as the right of appeal is concerned, it having been given under the Code of Civil Procedure in respect of all the issues that might be arising in the suit, the decision of the Mamlatdar even under the said Mundkar Act, can also be decided by an appeal by the appropriate forum under the Code of Civil Procedure, for short 'C.P.C.'. In order to appreciate these two contentions, the relevant provisions of the, said Mundkar Act will have to be referred to and where necessary to be extracted and quoted.
4. The relationship of mundkar and bhatkar is peculiar to this State. The word'bhatkar' is defined in section 2 Clause (f) of the Mundkar Act reading as under :--
'bhatkar' means a person who owns the land on which the mundkar has adwelling house.'
The word 'mundkar' is defined in section 2 Clause (p) of the said Mundkar Act. Likewise, the word 'Mamlatdar' is defined in section 2 Clause (m) and 'Collector', is defined in clause (h) of section 2 in the said Mundkar Act.
5. At the time when the Mundkar Act came into force, it was envisaged that there might be suits pending in the Civil courts and likewise appeals pending in execution of decree or order and other proceedings for the eviction of a mundkar. The said provision of pending proceedings does not stop at that. Even when a person in the said suit or proceedings has claimed to be a mundkar that situation is also dealt with. Under section 13 of the said Mundkar Act all these pending matters are required to be transferred to the Mamlatdar within whose jurisdiction the dwelling house is situate. Thereafter, in sub-section (2) and sub-section (3) of the said section 13, further provisions are made. It is interesting to note that in sub-section (2) it is expected of the Mamlatdar on receipt of the file, suit or of the proceedings, first to decide whether the person to be evicted is a mundkar or not and if he decides that he is not a mundkar, the suit or proceedings shall be re-transferred to the Court. As per sub-section (3) if the decision is in the affirmative, he has to declare that the suit has abated and thereafter the bhatkar is to make a fresh application under the Mundkar Act, if the bhatkar so desires. Obviously, the application referred to herein is an application for eviction of mundkar.
6. There is also a provision in section 32 for referring of an issue by the Civil Court when the issue that has arisen before the Court involves a question which is required to be settled, decided or dealt with by the Mamlatdar or the Collector under the said Mundkar Act. Simultaneously, the Civil Court has to stay the suit and award the answer to the reference. According to sub-section (2) of section 32, the Mamlatdar on receipt of the reference has to deal with and decide the issue in accordance with the provisions of the Mundkar Act and has to communicate his decision to the Civil Court. The Civil Court thereupon has to decide the suit in accordance with the procedure applicable thereto.
7. One more provision is inquired to be considered here and that is the bar of jurisdiction of the courts as per section 31. Sub-section (2) is of relevance for the question at hand. It clearly says that no Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the Mundkar Act required to be settled, decided, etc. by the Mamlatdars, or the Collector, or the Government, or the Administrative Tribunal. It further says that no order passed by such authority under the Mundkar Act shall be questioned in any Civil or Criminal Court.
8. It may be mentioned here that the relevant statutory material referred to so far has been set out and extracted in an Appendix annexed hereto. So far as the provisions for appeal are concerned, they are to be found in section 24, which reads as under :--
'Section 24: Appeal -
From every original order, other than an interim order, passed by theMamlatdar or the Collector under this Act, an appear shall lie to theCollector or the Administrative tribunal respectively, and the order ofthe Collector or the Administrative Tribunal, as the case may be, shallsubject to revision if any, under section 25 of this Act, be final.Explanation: For the purpose of this section 'interim order' shall not includeinjunction order and such orders shall be subject to appeal and revision.'
9. The aforesaid appeal provision clearly shows except for interim order every original order of the Mamlatdar is made appealable. Same is the situation with regard to the original order of the Collector. Subject to revision as provided under section 25 of the Mundkar Act, the order of the Collector or the Administrative Tribunal in appeal is declared to be final.
10. The submission made canvassing the view that the provisions of appeal as set out in the Mundkar Act are not applicable to the findings given by the Mamlatdar under section 32 of the Mundkar Act is based largely on the use of the words, 'original orders' in section 24 quoted above. In this background, reference was made to section 8-A of the Mundkar Act which says that a person claiming right under the said Mundkar Act has to move the Mamlatdar by an application for declaration of such a right. Enquiry is to be held as prescribed and the Mamlatdar has to pass an order as he considers fit. Reading this provision stage-by-stage with the provision of reference as contained in section 32. It was urged that when there is a reference to original order in section 24 of the Mundkar Act, it would cover only the orders that are given by the Mamlatdar at the end of the proceedings as envisaged under section 8-A of the Mundkar Act.
11. It was further submitted that as per section 32 on receipt of the reference once the answer is communicated to the Civil Court it is for the Civil Court to proceed further in the suit according to the procedure applicable to the suit.
12. Now, so far as the procedure or the applicability of the suit is concerned, it may be recalled that in this State as well as the areas in the country governed by the Civil Courts Act, Bombay, 1864, there are suits of three types, namely special suit, regular suit and small causes suit. The procedure for regular suit and special suit is the same as prescribed in the C.P.C. and they are identical. The procedure for small causes suit will be governed by the provisions of either the Presidency Small Causes Court Act or the Small Causes Court Act read with the provisions of the C.P.C. to the extent to which they are applicable. In most of the cases, so far as the small causes suits are concerned, there would be no right of appeal.
13. If the procedure applicable thereof as occurring in sub-section (2) of section 32 of the Mundkar Act is understood in this light in relation to a suit, it is not possible to understand what exactly it means.
14. The submissions made on behalf and in support of the view that no appeal lies pursuant to an order under section 32 of the said Mundkar Act by the Mamlatdar was to the effect that the procedure applicable would mean appeal arising out of a decree rendered in a suit. In my opinion, the words, 'procedure applicable thereof', cannot be circumscribed in this manner, nor can it be confined to that narrow meaning.
15. 'Procedure', necessarily would be with reference to the stage at which the reference was made. The suit might have come upto the stage of recording of evidence and therefore, could have been proceeded under Order XVIII C.P.C. and at a later stage the issue matter might have arisen. In other words, right from the ordinary stage of framing of an issue under Order XVIII C.P.C. upto the stage of rendering judgment under Order XX C.P.C. before the suit so far as the Civil Court is concerned is decided, there is a possibility of raising of an issue required to be referred to under section 32.
16. The 'procedure applicable thereof', can also be understood in the light of the pendency of a matter in appeal either before the District Court or the High Court, as the case may be. In that suit also, the appeal being continuation of a suit with reference to the procedure on answer being obtained by the Mamlatdar, either by the District Court or the High Court on a reference, the pending matter will have to be decided according to the procedure applicable to the proceeding though it might have been referred to as a suit.
17. The words, 'procedure applicable', thus having been found to contain the aforesaid meaning with reference to the context of the matter pending in a Civil Court, in my opinion it cannot be taken aid of for curtailing the right of appeal after the statute has granted it to the aggrieved party.
18. It is admitted position and it cannot be denied by anyone that even if the reference is answered in a particular manner by the Mamlaldar under section 32 of the Mundkar Act, either the mundkar or the bhatkar, as the case may be, can approach the Mamlatdar under the said Mundkar Act independent of the Civil Court and can get the matter decided one way or the other.
19. There being no bar of such proceedings under the Mundkar Act in relation to a suit from which a reference was made and answered in a particular manner, one can easily visualize a situation virtually where two parallel proceedings are pursued, one under the Mundkar Act and another under the general law. Obviously, in both the proceedings the provisions of appeal being there in relation to the question of mundkarship, on one hand according to alternate submission canvassed that there is no appeal, the Civil Courts in the entire hierarchy under the C.P.C. will be entertaining first appeal and second appeal and revision, as the case may be, and on the other, the authorities who are mentioned in the Mundkar Act will also be entertaining the same in their own way. This will thus give a situation where any of the authorities under the C.P.C. on one hand and any of the authorities under the Mundkar Act, on the other, can give contradictory or conflicting findings on one and the same point.
20. The Mundkar Act being a step in the direction of ameliorating the position of people who otherwise had no right whatsoever and therefore, being of the species of land reforms it is a beneficial piece of legislation. It is in furtherance of the social ideals that are enshrined in the Constitution of India. The Mundkar Act has therefore to be read in that light and has to be construed and interpreted to achieve the furtherance of the object to which it is enacted.
21. The object will be achieved and furtherance will be obtained if the issue of mundkarship is lend finality either when it is coming before the authorities under the Mundkar Act by virtue of reference under section 32 or by virtue of a proceeding under the Mundkar Act.
22. In this connection again section 24 of the Mundkar Act may be referred to where the words, 'every original order' are used. The said section no doubt refers to original order and therefore, as stated above, attempt was made to differentiate the finding under section 32 of the Mundkar Act and the orders passed after holding enquiry under section 8-A under the Mundkar Act. The later was styled as original proceedings culminating into the original order and the former was referred to as order in reference.
23. Had that been so, there would have been a clear-cut provision in section 24 of the Mundkar Act itself excluding appeal with regard to the order under section 32 of the Mundkar Act. The Legislature was much conscious of executing certain orders from appeal and therefore it has been clearly laid down that there shall be no appeal against an interim order, by putting an exception at the end.
24. Under section 24 of the Mundkar Act, what is meant by interim order is also clarified by the Legislature.
25. In my opinion, original order has to be understood in the light of the authority who gives the order. It has to be an order from the authority of the first instance. That would be original order settling the dispute between the parties, one way or the other. It is that order which is made appealable. If the final outcome is an order where it is by process of reference under section 32 of the Mundkar Act, or by process under section 8-A of the Mundkar Act, the final outcome remains the same as the order given by the authority of first instance. There is nothing special about the decision rendered under section 8-A to distinguish it from the finding given with regard to the question of mundkarship which could be the position in answer to a reference under section 32 of the Mundkar Act. In both the orders there has to be a decision with regard to the right of mundkarship claimed.
26. Now it is not possible to understand how there could be a distinction between the two orders to make one appealable and the other not, merely because one is achieved by reference via section 32 of the Mundkar Act and the other by a proceeding via section 8-A of the Mundkar Act.
27. If the overall purpose of the Mundkar Act is to see that the question of mundkarship is decided by the authorities that are prescribed in the Mundkar Act and in keeping with that the otherwise superior power of the Civil Court in the field of decision as to civil rights are circumscribed in the aforesaid manner under section 32, there will be no controversy between the final outcome under reference or in a proceeding under section 8-A of the Mundkar Act, unless they are both held to be original orders. In my opinion, an unnecessary importance is given to proceedings under section 8-A and the answer given to proceedings in a reference under section 32 of the Mundkar Act is unnecessarily brought down to be a finding of a issue only which will eventually emerge into a final order of the Civil Court for being dealt with in appeal if one is filed by the first appellate Court, which could be either the District Court or the High Court, as the case may be.
28. It is not beyond the realm of possibility that in the first appeal before the District Court the question may have to be referred under section 32 of the said Mundkar Act. Likewise, either in second appeal or in the first appeal, the High Court too may face a situation where reference has to be made under section 32. If the aforesaid proposition of order under section 32 of the Mundkar Act being not appealable is accepted, then in keeping with the aforesaid provision right of appeal, if any, with regard to this order will automatically be decided upon at what stage the reference is made.
29. If the reference is from the Court of first instance, the appeal will be heard by the First Appellate Court and if the reference is at the instance of the First Appellate Court, then by the High Court hearing the second appeal, and so on.
30. The right to file an appeal being a creation of a statute, it has to arise on the occurrence of an event, namely passing of an order by a particular authority, or forum, or Court, as the case may be, and the Appellate Authority who can hear the same should also be fixed. It cannot be left to be decided or made contingent with the happening of an event which, in the instant case would be making of a reference.
31. A reference was made to a decision of the Hon'ble Supreme Court in the case of Noor Mohd. Khan Ghouse Khan Soudagar v. Fakirappa Bharmappa Machenahalli & others, reported in : [1978]3SCR789 . The land in question in that case being in the district of Dharwar, which is now in Karnataka State was at the relevant time forming part of bigger Bombay State prior to the year 1956. On 1st November, wholesale exercise of reorganization of the State was undertaken and as a result Dharwar was made part of Mysore State which eventually came to be designated as Karnataka State.
32. With the initiation of the proceedings in the said matter, the land in question came to be governed by the Bombay Tenancy and Agricultural Lands Act, 1948, which later on came to be amended in 1961 and finally there came to be the Mysore Tenants (Temporary Protection From Eviction) Act, 1961 and subsequently by the provisions of the Mysore Land Reforms Act, 1961.
33. It was a long-drawn battle between the parties. The original suit was for partition of joint property, shares were determined and actual partition was to be carried out. It is not clear whether the procedure of preliminary decree and final decree was followed, or whether the matter of dividing the property by metes and bounds and putting the party in possession was being dealt with by way of execution under Order XXI of the Code of Civil Procedure.
34. However, the fact remains that by that time the sharers in whose share the land in question had come was facing a tough fight from a person who was inducted in the land during the pendency of the proceedings. Obviously section 52 of the Transfer of Property Act was raised, but pursuant to the aforesaid various Land Reforms Acts the' question also arose whether he was a tenant or not.
35. In keeping with the over all trend of the Land Reforms Acts the question of tenancy was left to be decided by the authorities under the respective Land Reforms Acts as is the position in the Mundkar Act.
36. The only difference that was noticed in the instant case was that though originally there was a right of appeal, it later on came to be taken away by the repealing provision of appeal contained in section 133 of the concerned Land Reforms Act. This reference is to be found in para 31 of the judgment at page 206. It is in this background that the following observations are to be found in para 40 of the judgment at page 214:---
'The High Court ought to have also considered whether any restriction on the jurisdiction of the Civil Courts placed under the Act is applicable to the High Court also. The jurisdiction of the Civil Courts is not entirely barred as the Act only provides for reference of certain issues for decision before the Revenue Tribunal and after receipt of the finding on such issues to record a judgment on such finding. The appeal to the Civil Courts according to the Civil Procedure Code and the jurisdiction of the High Court in hearing appeals and revisions under certain circumstances have not been excluded.'
Not only the aforesaid decision in : [1978]3SCR789 is binding, but otherwise also it cannot be gainsaid that the decision of the Civil Court that has been rendered after it receives answer to the reference being appealable under the Civil Procedure Code, the powers of the Civil Courts are not taken away. The powers of the Civil Court, i.e. the Court of first instance is also not taken away with regard to the remaining issues. If at all there be any bar, it is only on the points that are required, to be decided by the authorities under the Act. The rest of the powers under general law vested in the Civil Court under section 9 read with section 151 of the C.P.C., if necessary, will always remain and therefore, the relevant provisions as to appeal will also hold the field making the orders of different hierarchical courts appealable to the higher forum.
37. It is true and a feeling was expressed at the Bar that if appeal under the Mundkar Act is also held to be liable or available too much of time will be spent in the first round of appeal under the Mundkar Act and thereafter had the order attained finality once the matter it takes up by the Civil Courts, there again there will be appeals under the C.P.C. This constraint of time as apprehended by the members of the Bar, in my opinion, cannot be considered for the resolution of the aforesaid question.
38. Even in a beneficial piece of legislation the Legislature does try to strike a balance between proprietory right of the erstwhile dominant sections of Society and the vesting of rights in the erstwhile deprived section of Society. In keeping with the Constitutional provisions, no person can be deprived of his property without procedure under the law. The procedure under the law has, therefore, to be fair and just. One of the components of fairness and justness is right of appeal being given to the aggrieved party.
39. Otherwise also, it will be too much to say that howsoever learned, wise and perspicacious an individual may be, being an authority of the first instance, he or she is infallible. When proprietory rights are involved and they have the consequence of changing the complexion of a given section of Society enabling the deprived one to be the rightful owner, may be of a land or of a house, the right of appeal has to be provided otherwise it may end up in tyranny either for the deprived section of Society or the erstwhile dominant section of Society.
40. Section 24 of the Mundkar Act, providing for appeal has already been quoted in para 8 supra. As stated therein, a decision rendered by the authorities under the Act shall be final, subject to the decision given in revision, if any. If the view is accepted that the reference decided by the Mamlatdar is not subject to appeal under the Mundkar Act, but under the C.P.C., obviously, the same element of finality will disappear. If at all it be there the finality will be linked up with the outcome of appeal under C.P.C. and that may be from any of hierarchical courts as per C.P.C.
41. Obviously, finality to be created under the said Act, like the Mundkar Act, cannot be left to come by depending upon the matter being dealt with under reference by the Civil Courts and by the authorities under the Mundkar Act when proceedings are taken under section 8-A. In order to bring about harmonious construction of all the provisions of the Mundkar Act, including the said provision of section 24, which brings about finality, the decision given under the Mundkar Act by way of an answer to reference under section 32 of the Mundkar Act will also have to be treated for finality purposes in the same line as any other order made so final, subject to revision, if any.
42. From the point of view of Bar of Civil Court jurisdiction also, if the proposition that the Mamtatdar's order under reference be made appealable before a Civil Court, to that limited extent, the jurisdiction of the Civil Court will have to be accepted. This will be in direct conflict with the section which bars the jurisdiction. From this point of view also, the said proposition cannot be accepted.
43. Thus viewed from different angles it is indeed proper that the various provisions of the Mundkar Act are read to bring about harmony and to make them more effective in keeping with the legislative intent.
44. I, therefore, hold that the decision given by the authority in a reference under section 32 of the Mundkar Act is appealable under the provisions of the Mundkar Act.
45. The respective petitions be fixed for hearing if they involve points other than this. The registry is directed to place a copy of this order in all the matters where this point arises. If this is the only point involved, the matters of course stand disposed of in accordance with the aforesaid order.