Judgment:
E.S. Da Silva, J.
1. By the present writ petition filed under Article 227 of the Constitution the petitioner seeks to challenge the judgment of the Administrative Tribunal, dated 19th May, 1989 in Mundkar Revision Application No. 14 of 1987 which has reversed the order of the Mamlatdar of Canacona, dated 10th January, 1986 in Case No. MUND/2/1985 and which has been affirmed by the order of the Additional Collector of Goa, dated 30th January, 1987 in Case No. MUND/AC/APL/14/86.
2. On 21-6-1978 one Sangtu Devidas filed an application to the Mamlatdar of Canacona to get himself registered as Mundkar under section 29 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the Act) in respect of the suit house, being House No. 181, located in the petitioner's property at Canacona. The case was registered as Case No. MMD/CAN/8/78. By order dated 27th February, 1982 the Joint Mamlatdar of Canacona dismissed the application against which Sangtu did not file any appeal or revision. Later on after the death of the petitioner's husband the said Sangtu moved another application before the Mamlatdar of Canacona this time under section 8-A of the Act for seeking an order declaring him as mundkar. The said application was registered as MUND/2/85. During the pendency of the said case Sangtu died and his legal representatives who are respondents Nos. 4 to 9 (hereinafter called the respondents) were brought on record. However this application was also dismissed by the Mamlatdar by order dated 10th January, 1986 on the ground that the application was barred by res judicata. An appeal was filed by the respondents against the dismissal of the order to the Collector of Goa. The appeal was registered as MUND/AC/APL/14/86. Thereafter the Additional Collector by order dated 30th January, 1987 dismissed the said appeal also on the same ground that the earlier application made by the late original petitioner had been decided against him. The respondents then challenged the aforesaid order of the Additional Collector before the Administrative Tribunal which by the impugned order dated 19-5-1989 allowed the revision filed by the respondents and unsettled the order of the Mamlatdar by remanding the case back to him for further action.
3. It was first submitted by Shri B. D'Costa, learned Counsel for the petitioner, that the finding given by the Administrative Tribunal in the impugned judgment that there is nothing from the records to show that the earlier decision of the Mamlatdar dated 27-2-1982 was pronounced on merits, that they could not find out whether the mandatory inquiry under section 29(6) of the Act was held by the Mamlatdar in the old case and that anything which is not decided on merits cannot form the basis of res judicata in this case is manifestly and altogether wrong and unjustified. In this respect the learned Counsel invited my attention to the relevant provisions dealing with applications for registration of mundkars. Rule 21 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, 1977 (hereinafter called the Rules) provides for procedure for maintenance and preparation of register of Mundkar under section 29 of the Act. In its sub-section (3) recites that after the order of the Mamlatdar, under sub-section (6) of section 20, for registering the Mundkar has become final or his order rejecting the application has been reversed in appeal or revision and directions are given to register the applicant as Mundkar, the name of such person shall be entered in the register under sub-rule (2). In its turn section 29 of the Act commands the Government to cause a register of Mundkars to be prepared and maintained in the prescribed manner thereof. In its sub-section (4) it provides that the Mamlatdar shall, before the preparation of the register, publish a notice, in every revenue village inviting applications from the Mundkars for registration and to be presented before such date as may be specified in the notice and in case it is found that a Mundkar has failed to apply for such registration the concerned Talathi is empowered to propose to the Mamlatdar to enter the name of such Mundkar in the register of mundkars. In terms of sub-section (5) of section 29 the Mamlatdar on receipt of any application either of the person who seeks to be registered as Mundkar or of the concerned Talathi shall give notice to the Bhatkar or any other person interested in the land in which the dwelling house is situate, calling upon them to file any objections, if any, and requiring them to appear for inquiry into the application. Under sub-section (6) on the date he files a notice or any other date to which the inquiry may be adjourned the Mamlatdar shall hear all such persons who appear and after such inquiry register the Mundkar or reject the application. Under sub-section (8) any person aggrieved by the registration of a Mundkar or by the refusal to register a person claiming to be a Mundkar may, within sixty days from the date of registration or refusal, file an appeal to the Collector. Finally sub-section (9) prescribes that on receipt of an appeal under sub-section (6), the Collector may make an inquiry or cause an inquiry to be made and pass such orders as he deems fit. It follows therefore that the aforesaid provisions clearly provide for an inquiry to be held by the Mamlatdar or by the Collector before a final finding is passed on the petitioner's application to register as Mundkar which finding certainly concerns with the main issue which has to be first adjudicated in this application and which is whether a person who makes such application is or not a Mundkar. To be noted also that inquiry is directed to be one under the law by the Mamlatdar or Deputy Collector after giving notice to the opposite party which is either the Bhatkar or any person interested in the land wherein the dwelling house in respect whereof the Mundkar seeks a declaration of his status of mundkarship is located. Shri B. D'Costa has also taken me through the order of the Mamlatdar and contended that the order cannot be said as having been passed on technical grounds alone. The learned Counsel urged that the said order may be a wrong decision but by no means appears to have been based on technicalities. That there is a clear finding given in the order which was passed as a logical conclusion derived from certain facts and surmises. The said order was thereafter not challenged by the original petitioner and being so the basic issue of mundkarship which the Mamlatdar was supposed to decide while considering the application of late Sangtu to get himself registered as Mundkar is therefore to be deemed as finally adjudicated on this point.
4. The submissions of Shri D'Costa in this regard are no doubt correct and deserve acceptance. From a bare perusal of the aforesaid order dated 27th February, 1982 it is seen that the Mamlatdar dismissed the application on the ground that the suit house was not registered in the name of the petitioner in the records of the Village Panchayat. There is no doubt that the same order appears to be indeed ex facie a crude and injudicious order but the fact remains that rightly or wrongly the Mamlatdar, while recording the same, seems to have addressed himself in his own way to the material issue raised by the late Sangtu about his right to be registered as mundkar. That by itself is enough for me to hold that the order has been passed by the Mamlatdar although perfunctorily on its merits. Further there is nothing on record to suggest that such an order was passed by the Mamlatdar and the respondents were also not able to satisfy me that the said order was passed by the Mamlatdar without holding a competent inquiry as prescribed by law and after giving opportunity to the opposite party to give their say on the application.
5. Shri Usgaoncar, learned Counsel for the respondents, contention that the said order is not an order passed on merits because it is based on totally irrelevant grounds and does not deal with any of the substantive requirements envisaged by the Act to qualify a person as a Mundkar and therefore the decision is to be deemed as technical has not been able to impress me on this point. It seems that according to the learned Counsel the aforesaid order is to be treated as technical because the same has not been ostensibly passed on the merits of the case. The said order is something like an order which was passed for default. Hence there is no scope for this order to constitute res judicata in respect of the material issue of mundkarship which was required to be adjudicated by the Mamlatdar in the aforesaid application made by the late Sangtu.
6. It is difficult for me to concur with such proposition advanced by Shri Usgaoncar. I have already observed earlier that a cursory glance of the order dated 27th February, 1982 rules out any possibility of the order being considered as having been passed on technical grounds. The dismissal of the petitioner's application was prompted in that case because the late petitioner has failed to show that the house in respect whereof he wanted to get himself acknowledged as Mundkar was not registered in his name in the record of the Village Panchayat. It is obviously a decision which cannot be said as having been passed on any technical grounds but on merits. Since the late petitioner failed to challenge the said order inspite of an appeal being provided in the Act it is clear that the order was rendered final and issue of mundkarship decided in that order became res judicata. Reliance placed by Shri Usgaoncar in the case of Sheodan Singh v. Daryao Kunwar : [1966]3SCR300 , does not appear at all attracted in this case. Apart from the circumstance that the said ruling has been passed on facts the instances referred therein and which have based the conclusion arrived at by the Court that the decision not being on merits would not be res judicata are purely involving strict technicalities.
7. It was next submitted by Shri B. D'Costa that the other ground relied by the tribunal in the impugned judgment that the procedure under section 29 and 8-A of the Act are different in both scope and purpose in as much as the former is only for preparation of register the contents of which have only presumptive value the latter settles for good the rights of the parties has become irrelevant as this point has already been concluded by this Court in its judgment dated 6-11-1990 in Civil Revision Application on No. 10 of 1990, Gabriel Noronha and others v. Smt. Brasil Brigida Cardose. On the same line and in the case of Leao Vitorina D'Souza and another v. Silvestere Loyala Fernandes and another, 1989 (1) GLT 62, this Court has also held that a finding as to whether a person is or not a Mundkar under section 29 must be construed as a declaration made under section 8-A of the Act.
8. Shri Usgaoncar in his turn has submitted that the scheme of the Act clearly contemplates two distinct aspects to which two different sets of procedure apply. One is to get a declaration of Mundkar at the instance of the parties as provided in section 8-A while the other is regarding the registration of a Mundkar in the competent register at the instance of the Government as envisaged in section 29. It was contended by the learned Counsel that in respect of this type of registration section 30 of the Act clearly provides that the records prepared are clearly of presumptive nature only and the genuineness of the entries is to be deemed as true until the contrary is proved and a new entry is lawfully substituted in the register. The learned Counsel urged that on reading sub-section (1) and sub-section (4) of section 29 one can easily draw the conclusion that this register is being prepared by the Government with the sole purpose of keeping a record of the Mundkars with their names and other details so as to make available to them all the rights and benefits conferred in the Act. The learned Counsel has pointed out to me the words contained in section 30 which refers to the presumptive value of the record namely the words 'shall be presumed to be true' and 'until the contrary is proved' to substantiate this point that this expression clearly suggests that despite the entries recorded in the register prepared under section 29 it was always possible for any person interested to dispute such entries to lead evidence that the same were not correct. From this fact, the learned Counsel urges, it seems clear that the findings given by the Mamlatdar in proceedings under section 29 did not attain finality and as such cannot lead to res judicata. The learned Counsel has however fairly conceded that since this Court has already held that proceedings under section 29 are to be deemed as attaining finality it is not possible for him to take a different view or advance a conflicting line of argument in this case and that the only option available to him is to make an attempt to impress upon the Court that in case he is able to satisfy that the aforesaid decision rendered by the Court requires reconsideration the matter to be referred to a larger Bench.
9. I am however afraid that I have not been able to persuade myself that the view taken by me in my earlier judgment dated 6-11-1990 needs to be reconsidered. I say so because in my opinion section 30 does not appear to exclude or remove the element of finality of any finding to be given by the Mamlatdar on the issue of mundkarship which is required to be adjudicated prior to the preparation of the registers of mundkars or of the record envisaged in section 29. Further section 8-A cannot be said to be the only substantive provision dealing with the right of any person to obtain a declaration with regard to his status of mundkarship. It is true that under the aforesaid section 8-A any person who is entitled to any right under the Act may move the Mamlatdar by an application for declaration of such right. No doubt that this section therefore contemplates the possibility of a person seeking a declaration that he is a Mundkar to move the Mamlatdar under this provision to obtain such declaration. But this is not the only one which enables him to get his status of mundkarship acknowledged by the Mamlatdar. Section 29 of the Act enables and requires the Mamlatdar to adjudicate this same issue under the Act. Therefore, since the said issue can be decided by the same authority after a competent inquiry and regard having been had to the safeguards prescribed in the Act by giving an opportunity to the opposite party to have a say on this application there is no question of section 8-A being held as the only substantive provision enabling the Mundkar to get his status of mundkarship adjudicated by the Mamlatdar.
10. Shri Usgaoncar's contention based on the expression 'any person' inserted in section 8-A that the same also gives the landlord an opportunity to obtain a declaration that a person who was registered as a Mundkar in the competent records prepared by the Mamlatdar under section 29 that he is not so for the purpose of rebutting the entries in terms of section 30 does not appear to be sound. First of all it is to be borne in mind that section 8-A refers to the right of any person to move the Mamlatdar for declaration of such a right only in case the person is entitled to any right under the Act. I have inquired from Shri Usgaoncar whether he was able to point out to me any provision in the Act which confers any right of declaration to the landlord or Bhatkar prejudicial to the Mundkar and I must say that the learned Counsel was not able to satisfy in this regard. Admittedly the Act is a beneficial piece of legislation which has been specifically enacted to give protection to the Mundkars only. The preamble to the Act expressly refers that the said Act was being passed to provide better protection to mundkars although it is true that a further clarification follows that such protection is against eviction from dwelling houses and granting them the right to purchase the same but at the same time mention is made in the preamble that the Act seeks to make also certain other provisions connected therewith.
11. As rightly pointed out by Shri B. D'Costa in the scheme of the Act section 8-A appears to be placed under Chapter II which deals with rights and liabilities of mundkars alone. Therefore, the expression 'any person' in section 8-A should be harmoniously construed as being a person who seeks to obtain a declaration of any right conferred to him under the Act. Admittedly in the whole Chapter II or in the entire Act there is no right in respect of which a declaration may be obtained conferred to any other person rather than Mundkars who may be entitled to exercise such right bestowed upon them in the Act. Being a beneficial piece of legislation Shri D'Costa concludes that the same aims to protect the mundcarial class only. Shri D'Costa has also taken me through the Statement of Objects and Reasons contained in the Bill No. 10 of 1977 which was presented to the Legislature to amend the Act and includes in the same section 8-A to show that the said amendment was introduced on account of an anomalous situation which had arisen out of the Civil Courts refusing to grant relief after the coming into force of the Act in cases wherein rights under the Act were involved since there was no specific provision by means of which persons could move the Mamlatdar for a declaration of their right under the Act. Therefore, there was no question of the expression 'any person' referred to in section 8-A including also the landlord or Bhatkar.
12. There is no doubt a valid point in the submission of the learned Counsel. In view of the references made in the aforesaid statement it seems obvious that section 8-A is a specific provision meant to remove from the Civil Courts jurisdiction to declare a person as Mundkar and this appears to be the reason of the word 'person' inserted in section 8-A to enable the Mamlatdar to make such declaration also. Therefore, from the said Statements of Objects it follows that the insertion of section 8-A was aimed only to take away the jurisdiction of the Civil Courts to declare a person a Mundkar. We noted that under the Land Revenue Code there was a presumption regarding the entries in the Record of Rights which entry could be deleted even in case a finding was recorded by the Civil Courts in a competent suit disputed before the Civil Court. Hence the amendment and addition to section 8-A giving full jurisdiction to the Mamlatdar only to make a declaration regarding mundkarship which otherwise the Mamlatdar was already having under section 29 of the Act.
13. Shri B. D'Costa has also rightly observed that for this reason section 8-A could not be availed of by the landlord because in such case he would have to obtain from the Mamlatdar a negative declaration to the effect that a person included as Mundkar in the register under section 29 was not a Mundkar. No such jurisdiction could be exercised by the Mamlatdar to grant a negative declaration. Besides section 8-A by its meaning and contents appears to be made to enable a person who has a right under the Act to obtain such declaration.
14. We have already seen that nowhere in the Act there is any provision granting to a person who is not a Mundkar a right to obtain such declaration. On the other hand in my view the presumptive value contemplated in section 30 does not appear to come in the way of acknowledging finality to the finding which the Mamlatdar is required to record in proceedings under section 29 of the Act with regard to the main and basic issue of mundkarship in respect of the person who moves the said Mamlatdar with an application to get himself registered as a Mundkar. Section 30 expressly refers to the presumptive value of the record and provides that an entry made in the register of Mundkars prepared in accordance with the provisions of the Act... shall be presumed to be true until the contrary is proved or any entry is lawfully substituted thereafter. Therefore, the presumptive value referred to in the provision refers only to the entries made in the register of Mundkars which entries are to be made only after the register is prepared. This means that before the preparation of the register a person who moves an application under section 29 is to be declared as Mundkar and for that purpose the Mamlatdar is required to give a definite finding on this issue which finding he is enjoined to record only after holding a competent inquiry and giving an opportunity to the landlord or Bhatkar to give his say on the matter. It is always a contested proceedings and the finding is given by the competent authority on the compliance of all the legal requirements which are substantially the requirements which are supposed to be observed by the same authority who is the Mamlatdar in proceedings to be conducted by him under section 8-A. Therefore, I see no reason as to why the finding given by the Mamlatdar on this issue of mundkarship which he is required to adjudicate should not attain finality even after the law having provided the remedy of an appeal to the aggrieved party. In the instant case it is seen that the late petitioner Sangtu failed to avail of this remedy and in view of the fact that no appeal was filed by him challenging the order of the Mamlatdar there is no scope rather than to conclude that the said finding is to be held as final and constituting res judicata.
15. In the result this petition is bound to succeed and is hereby allowed. The judgment and order of the Administrative Tribunal dated 19th May, 1989 in Mundkar Revision Application No. 14 of 1987 is quashed and set aside and the order of the Mamlatdar dated 10th January, 1986 in Case No. MUND/2/1985 affirmed by the order of the Additional Collector dated 30th January, 1987 in Case No. MUND/AC/APL/14/86 is restored. Rule made absolute in the above terms with no order as to costs.