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2014 DIGILAW 315 (BOM)

Yeshodi Gauthankar v. Telma de Souza Gonsalves

2014-02-07

F.M.REIS

body2014
Oral Judgment: 1. Heard Mr. A. D'Silva, learned counsel appearing for the appellants and Mr. M. Viegas, learned counsel appearing for the respondent. 2. The above appeal came to be admitted on the following substantial questions of law. 1. Whether both the Courts grossly erred in holding that the suit toilet is illegal despite of the right provided to the Mamlatdar to maintain, repair, improve or reconstruct the dwelling house and the explanation of the term 'improve' includes construction within the dwelling house like sump tank or overhead tank, water cistern, bathroom, toilet, septic tank, soak pit and the like subject to obtaining necessary permission from the concerned Authorities under Section 7 of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975? 2. Whether the Courts below having framed the issue of maintainability of the suit exceeded their jurisdiction in determining the issue without first referring the same to the Mamlatdar under Section 32 of the Goa Mundkars (Protection from Eviction) Act, 1975? 3. Mr. D'Silva, learned counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the appellant no.1 has put up a sulabh toilet within the dwelling house which according to him is permissible in view of the explanation to Section 7 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (herein after referred to as "the Mundkar Act"). The learned counsel pointed out that in terms of the Mundkar Act, the appellants are entitled to re-construct, repair and improve the existing dwelling house and the explanation clearly provides even for putting up a toilet would come within the ambit of Section 7 of the Mundkar Act. The learned counsel further pointed out that as the appellants themselves have put up a construction of the toilet, the question of directing the appellants to demolish the said construction would not arise. The learned counsel thereafter has taken me through the provisions of Section 7 of the Mundkar Act and pointed out that the appellants being mundkars are entitled to exercise their rights as stipulated therein. The learned counsel has thereafter taken me through the impugned judgments passed by the Courts below and pointed out that the Courts below have erroneously come to the conclusion that the appellants are not entitled to retain the toilet as it is beyond the mundkar area. The learned counsel has thereafter taken me through the impugned judgments passed by the Courts below and pointed out that the Courts below have erroneously come to the conclusion that the appellants are not entitled to retain the toilet as it is beyond the mundkar area. The learned counsel as such points out that the substantial questions of law framed by this Court be answered in favour of the appellants. The learned counsel further pointed out that the respondent has failed to identify the disputed structure and as such on the basis of such vague pleadings the question of granting the relief by the Courts below is not at all justified. 4. On the other hand, Mr. M. Viegas, learned counsel appearing for the respondent has supported the impugned judgment. The learned counsel has pointed out that the respondent is the owner of the property and in exercise of her proprietary right she is always entitled to get the demolition of any new construction put up in the disputed property. The learned counsel further pointed out that the question of invoking the explanation to Section 7 of the Mundkar Act would not arise at all in the present case as admittedly the dwelling house has not been specified by the competent authority. The learned counsel further pointed out that unless and until the appellants have purchased the dwelling house in terms of said Mundkar Act, the question of exercising such right as provided in Section 7 of the Mundkar Act would not arise. In support of his submissions, he has relied upon the judgment of the learned Single Judge of this Court reported in 1998(1) Goa L.T. 449 in the case of Shri Peter Fernandes (deceased ) V/s Smt. Luizinha Pereira and others. The learned counsel further pointed out that the question of identity was not even disputed by the appellants and as such the question of raising such contention in the present second appeal would not arise. The learned counsel further pointed out that the appellants have not exercised their rights of purchase and as such the question of claiming any protection with regard to the disputed structure would not arise. The learned counsel further submitted that only the appellant no.1 has obtained a declaration whereas the appellant nos. The learned counsel further pointed out that the appellants have not exercised their rights of purchase and as such the question of claiming any protection with regard to the disputed structure would not arise. The learned counsel further submitted that only the appellant no.1 has obtained a declaration whereas the appellant nos. 2 and 3 have no right to the suit property though they claim to be mundkars of the said property which is not raised before the Mamlatdar. The learned counsel as such submits that the appeal be rejected. 5. I have carefully considered the submissions of the learned counsel and I have examined the records and the impugned judgment. On the basis thereof, the only aspect to be examined would be whether the appellants were entitled to seek a protection with regard to the disputed structure on the basis of the explanation to Section 7 of the said Mundkar Act. Next aspect is to be examined is whether in case the disputed structure comes within the dwelling house and whether the decree of demolition can be executed. 6. Section 7 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 reads thus: “7. Mundkar to have right to repair, maintain and improve his dwelling house.- A mundkar shall have a right to maintain, repair, improve or reconstruct his dwelling house without, in any way, increasing the plinth area thereof. He shall have, also, the right to have electricity supply and supply of pipe water, on the same terms and conditions as are applicable to any owner of a house. [Explanation:- The term “improve” shall include construction within the dwelling house like sump tank or overhead tank, water cistern, bathroom, toilet, septic tank, soak pit and the like subject to obtaining necessary permission from the concerned authorities.] 7. In order to get the benefit of the explanation, the requirement of law is that the mundkar would have to establish that the disputed structure was within the dwelling house. In the present case, the facts finding Courts below have held that the appellants have failed to establish that the disputed structure was within the dwelling house. In any event, it is not in dispute that though a declaration has been obtained by the appellant no.1, the area of the dwelling house has not been specified nor demarcated by the competent authority. In any event, it is not in dispute that though a declaration has been obtained by the appellant no.1, the area of the dwelling house has not been specified nor demarcated by the competent authority. There is no material on record to ascertain whether the appellant no.1 on the basis of such declaration has exercised the option to purchase such area. The question of entertaining the claim of the appellant nos. 2 and 3 does not arise as admittedly the appellant nos. 2 and 3 are not declared as mundkars by the competent authority. On the face of the findings of the Courts below that the appellant no.1 have failed to establish that the disputed structure is within the dwelling house, the question of examining whether the explanation to Section 7 of the Mundkar Act would protect the disputed structure would not arise at all. The question of referring a dispute of the nature raised in the present suit before the learned Mamlatdar for adjudication does not arise. There is no dispute with regard to the extent of the dwelling house raised by any of the parties in the present appeal. No issue on that count was framed by the facts finding Court below. Hence, the contention that the relief sought by the respondent is a matter to be adjudicated before the learned Mamlatdar does not hold good. 8. In any event, it cannot be disputed that in case the disputed structure is within the dwelling house, the question of seeking the eviction of a mundkar of such dwelling house by a decree of Civil Court would not arise. The appellant no.1 is always at liberty to take an appropriate measure in law to get the alleged dwelling house established before the competent authority and seek any remedy available to her in case she is in a position to establish that such disputed structure comes within the dwelling house. The extent of the dwelling house is not a matter which can be decided by the Civil Court. Unless and until such remedy is availed of by the appellants, the Civil Court cannot refuse to grant appropriate relief to the respondent herein in view of the judgment of the learned Single Judge of this Court in the case of Peter Fernandes (supra). The substantial question of law is answered accordingly. 9. Unless and until such remedy is availed of by the appellants, the Civil Court cannot refuse to grant appropriate relief to the respondent herein in view of the judgment of the learned Single Judge of this Court in the case of Peter Fernandes (supra). The substantial question of law is answered accordingly. 9. Subject to the above, I find no reason to interfere in the impugned judgment. As the appellants have failed to establish that the disputed structure comes within the dwelling house, the Courts below were justified to grant the relief as prayed for. 10. Subject to the above, the appeal stands rejected.