Writ Petition No.310 of 1997

14th September, 2001

Petitioner Counsel: Shri. S.G.DESSAI,Shri. R.B. DE SA
Respondent Counsel: Shri. F.COLACO

Cases Cited:
2000(2) Goa L.T. 318 [Para 1]

JUDGMENT

JUDGMENT:- In this Petition filed under Article 226 of the Constitution of India, the question raised is whether appeal could have been filed before the Collector against the decision of the Mamlatdar given under Section 32(2) and whether the Administrative Tribunal, Goa, was right in holding that the appeal was not maintainable and consequently, allowing the Revision. Fortunately for me, in this very matter this question is concluded on reference made to the Division Bench because of the difference of opinion between the two learned Single Judges of this Court. The Judgment is reported in 2000(2) Goa L.T. 318. The Division Bench has come to the conclusion that the appeal is maintainable and, consequently, the view, taken by the Administrative Tribunal,Goa, that the appeal was not maintainable is not correct.

2. A few facts :

The Respondent filed Civil Suit No. 242/79/B in the Court of Civil Judge, Junior Division, Panaji for eviction of the Petitioners on the ground that the licence given to the Petitioner No.1 was lawfully terminated and that the petitioners herein have become trespassers in the suit house bearing NO.79, and for mesne profits. The Petitioners (Defendants) contested the said suit contending that the original Defendant No.2, the late Mariano Coelho, was residing therein as mundkar without any compensation. It was contended that they are staying in the said house in the said capacity as mundkars. Consequently, the issue was raised whether the Petitioners were mundkars under the provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as "Mundkars Act"). The said issue came to be referred under Section 32(1) of the Mundkars Act for decision to the Mamlatdar.

3. The learned Mamlatdar, Panaji, by Judgment and Order dated 31st of June, 1992, answered the said reference in the negative and held that the Petitioners were not mundkars of the said house. Aggrieved by the said judgment and order of the learned Mamlatdar, the Petitioners herein preferred an appeal to the learned Collector, Panaji, who by the Judgment and Order dated 18th of March, 1996 allowed the same. He appreciated the entire evidence and came to the conclusion that the Petitioners have established their claim that they are mundkars within the meaning of Section 2(p) of the Mundkars Act.

4. Aggrieved by the said Judgment and Order of the Collector, Panaji, the Respondent herein preferred Revision before the Administrative Tribunal. Two questions came to be raised; (1) Whether the appeal; filed under Section 24 of the Mundkars Act by the Petitioners before the Collector was maintainable and (2) Whether they have established their claim on merits. The learned Member of the Administrative Tribunal came to the conclusion that the appeal filed by these Petitioners before the Collector was not maintainable. On merits, the learned Member considered the evidence on record and came to the conclusion that the Petitioners have established their claim of Mundkarship and proved the required ingredients under Section 2(p) of the Mundkars Act.

5. This Judgment is challenged in this Writ Petition. As pointed out above, the controversy regarding the maintainability of the appeal came to be referred to the Division Bench in view of the difference of opinion between the two learned Judges of this Court and the Division Bench in 2000(2) Goa L.T. 318 held that the appeal was maintainable. Hence the said point is concluded.

6. As far as the question regarding merits is concerned, I find that not only the Collector has appreciated the evidence and came to the conclusion that the Petitioners have established their case that they are mundkars. He has concluded that they have proved the ingredients of Section 2(p) of the Mundkars Act. The Administrative Tribunal in Paragraph 15 again considered the evidence and affirmed the finding recorded by the Collector in this respect. It is not possible in this Writ Petition to re-appreciate the evidence as no apparent error in that finding has been pointed out. I find no reason or ground to disturb the concurrent finding recorded by the appellate and revisional authority.

7. The learned Counsel for the Respondent submitted that as the Administrative Tribunal has set aside the Order passed by the Collector, it means that it has been set aside in its entirety and hence the matter is required to be remanded to the Administrative Tribunal for fresh consideration. It is not possible to accept this. It is amply clear from the Judgment delivered by the Administrative Tribunal that the Revision came to be allowed only because it has taken the view that the appeal filed by these petitioners before the Collector was not maintainable. As far as the merits are concerned, the Tribunal was fully with the Petitioners and it has been held that they have established their claim that they were mundkars in respect of the suit house. They have proved that they come within the four corners of Section 2(p).

8. In view of this, I pass the following Orders:-

This Petition is allowed. The impugned Judgment and Order so far as it relates to holding that the appeal filed by the Petitioners before the Collector was not maintainable is set aside. The finding on merits that the Petitioners have established their claim that they are mundkars is affirmed.

9. Rule absolute accordingly.

Petition allowed.