- (1.)THESE Petitions are being disposed of by a common Order as common questions of law arise in these Petitions.
(2.)SHRI D'costa appearing for the Petitioners has submitted that the following questions arise for determination in these Writ Petitions : - 1. Whether there can be a Mundkar of the Communidade ; 2.Whether the Mamlatdar had jurisdiction to dispose of application for purchase of the dwelling house without the deemed owner being made party to the proceedings ; 3.Whether the Mamlatdar could grant to the Mundkar an area, more than that fixed by the provisions of the Mundkar Act; and 4.What is the effect of a part of the dwelling house falling in the land of another Bhatkar.
Shri Lotlikar, Advocate for the Respondents No.4 submits that these questions need not be decided as there are suits pending filed against the Respondent No.4 in the various petitions by the present Petitioners and these issues can be very well decided in the said suits. He further contends that the dispute as to whether the Petitioners were tenants and now deemed owners of the suit land are also in issue and hence the points need not be decided. Shri D'costa on behalf of the Petitioners contends that there are proceedings for declaration of tenancy filed against the Communidade who is the landlord pending before the competent Authority under the Agricultural Tenancy Act and the issues raised by him need be decided as otherwise the Order of the Mamlatdar will be final.

Both under the provisions of the Goa, Daman and Diu Mundkar (Protection from Eviction) Act, 1975 which herein shall be referred to as the Mundkar Act and the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1975, jurisdiction has been conferred on the Authorities under the Mundkar Act and the Tenancy Act to decide issues arising under the said Acts. To that extent, the jurisdiction of the Civil Court is barred. It is in that context that the issues raised in these Petitions can be decided.

(3.)THE first question is as to whether there can be a Mundkar of the Communidade. Shri D'costa contends that even under the provisions of the Code of Communidade, there is a provision for regularisation of an encroachment on the land of the Communidade. This argument of Shri D'costa cannot be sustained insofar as a person's claim to be Mundkar. Under the provisions of the Mundkar Act, a Mundkar has been defined under Section 2 (p) of the Act. Under Section 2 (i) has been defined as to what is a dwelling house. Under Section 38, it is set out that the provisions of this Act shall have effect notwithstanding anything in any other Law or any custom or usage or decree or order of a Court, or any agreement or contract, express or implied, inconsistent with the provisions of this Act. In other words, if a person claims to be a Mundkar and claims rights under this Act, it is the Mundkar Act which will have over-riding effect. Ultimately, the Mundkar Act is a special Legislation by which the Legislature has conferred rights on persons who fall within the definition of Mundkar. THE Legislature also thought it fit in these circumstances to exclude and or give over-riding effect to this Act over other Acts. THE Code of Communidade merely provides to regularising the encroachment on the land of the Communidade. It is under the Mundkar Act that the Respondents have a right. In my opinion, therefore, there can be a Mundkar on the land of the Communidade if all the predicates of the definition of Mundkar and dwelling house are satisfied by the person claiming to be a Mundkar as there is no exclusion as in the case of Government land.
The second question is whether the Mamlatdar had jurisdiction to dispose of the application without the tenant being made a party to the proceedings. Admitedly, there is no declaration till date by a competent Authority in favour of the Petitioners herein that they are tenants. In fact, the Petitioners themselves have moved application before the competent Authorities under the Tenancy Act to get themselves so declared. The Mundkar Act came into effect from 12th March, 1976. The land in question is a coconut garden. Coconut gardens were included within the definition of Agriculture under the Agricultural Tenancy Act by the Fifth Amendment which came into force on 20th April, 1976. The rights of the Mundkar are, therefore, determinable on 12th March, 1976. It is the Bhatkar on 12th March, 1976 in respect of which the Mundkar can claim rights. Even taking the assertion of the Petitioners that they are the tenants of the land belonging to the Communidade as on 12th March, 1976, they were not the owners of the land as on 12th March, 1976. The owner of the land was the Communidade. Therefore, as on 12th March, 1976, in respect of the right of declaration of Mundkarship infact, there would be no need to join a person who acquires subsequent rights in a property. In an application moved by a person claiming to be a Mundkar, therefore, insofar as an application for declaration is concerned, the joinder of the Petitioners would not have arisen. The same may not be insofar as an application for purchase is concerned. Admittedly, the application for purchase and demarcation were filed under much later some time in the year 1992. On this date, if the Petitioner are the deemed owners, they definitely would have a right insofar as fixation of the area of dwelling house is concerned. However, at the present juncture, as the rights of the Petitioners have yet to be determined by a competent Court, suffice it to say that certain directions that may be issued to the Trial Court, in the pending suit will suffice for protecting the rights of both the Petitioners and the Respondents.