Eviction of Mundkar — Restricted Grounds (Section 8)

The whole architecture of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 converges on one short provision. Section 8, captioned "Grounds on which a mundkar can be evicted from his dwelling house", replaces the bhatkar's common-law freedom to evict with a closed list of exactly two grounds, a single forum and a strict limitation period. For an aspirant the section is deceptively small but examinable in depth: it must be read against the absolute bar in Section 7, the declaratory machinery of Section 8A, and the ouster of civil jurisdiction in Sections 31 and 32. This note sets out the verified statutory text, the procedure before the Mamlatdar, and the leading Bombay High Court authority interpreting how Section 8 fits into the wider scheme.

The bare text of Section 8

Section 8(1) opens with a prohibition, not a power: "No mundkar shall be liable to be evicted from his dwelling house, except on any one or more of the following grounds." Only two grounds follow. Clause (a) is "that he has transferred his interest in the dwelling house after the appointed date"; clause (b) is "that neither the mundkar nor any member of his family has been residing in the dwelling house for a continuous period of two years." There is no third ground. Critically, the Act contains no "bona fide requirement" head of the kind familiar from rent-control statutes — a bhatkar cannot evict merely because he personally needs the house. The bhatkar's genuine need is dealt with elsewhere in the scheme, through the separate mechanism discussed in bona fide need of the bhatkar, and never as a free-standing eviction ground under Section 8. The grounds being exhaustive, any eviction sought on a basis outside clauses (a) and (b) is incompetent at the threshold. The drafting is significant: the operative words "shall be liable to be evicted" are themselves negatived ("No mundkar shall be liable"), so the default position is non-liability, and the bhatkar carries the entire burden of bringing his case within one of the two narrow exceptions. The marginal note expressly speaks of the "grounds on which a mundkar can be evicted", confirming that the legislature intended an enumeration rather than an illustrative list. In the printed sequence of the Act this eviction provision is the pivot of Chapter II on rights and liabilities, sitting immediately after the heritability rule and the bar to eviction, so that the reader encounters the protection first and the limited inroads upon it second — a deliberate ordering that frames the whole statute as protective in character.

Ground (a): transfer of interest after the appointed date

The first ground links directly to the nature of the mundkar's right. Under Section 6 the right of a mundkar in his dwelling house is heritable but not transferable. Ground (a) is the enforcement teeth for that rule: if a mundkar, after the appointed date (17 February 1976), transfers his interest in the dwelling house, he forfeits the statutory protection and exposes himself to eviction. The logic is internal consistency — the protection is personal and familial, granted to keep the occupant rooted, not a marketable asset. A transfer defeats the very purpose of the protection and is independently rendered ineffective. This ground must be read together with the mundkar's own right to purchase the dwelling house: the statute channels the mundkar towards acquiring ownership from the bhatkar, while penalising any attempt to deal with the inchoate occupancy right as transferable property. For the bhatkar, proof of an actual transfer of interest — not mere temporary parting of possession — is the burden under clause (a). The word "interest" is wider than ownership: it captures any dealing by which the mundkar purports to convey or alienate his statutory occupancy right to a stranger, whether by sale, gift or assignment. Because Section 6 declares that right heritable but not transferable, a purported transfer is doubly fatal to the transferor — it is ineffective to pass anything to the transferee, and it simultaneously triggers the eviction ground against the mundkar himself. A transmission on death, by contrast, is heritable and lawful, and does not attract clause (a); the ground bites only on inter vivos alienation of the interest after the appointed date. The appointed date is therefore load-bearing: a transfer before that date falls outside clause (a) altogether.

Ground (b): non-residence for a continuous period of two years

The second ground codifies the requirement that the protection is for those who actually live in the house. Eviction lies where neither the mundkar nor any member of his family has resided in the dwelling house for a continuous period of two years. Two features deserve emphasis. First, the test is disjunctive in the mundkar's favour: residence by any member of his family defeats the ground, so a mundkar working away from home is not at risk if his family remains in occupation. "Member of the family" is itself a defined expression in Section 2, and the breadth of that definition matters to outcomes here. Second, the two-year period must be continuous; intermittent absences interrupted by genuine residence do not aggregate. This ground reflects the same fixed-habitation philosophy that underlies the very definition of mundkar — a person who lawfully resides with a fixed habitation — and the residence-based security of residence that the Act exists to guarantee. Abandonment of residence, sustained for two years, is the price of losing it.

The Mamlatdar as the exclusive forum and the procedure

Section 8 is not self-executing by the bhatkar. Section 8(2) requires that a bhatkar who seeks to evict the mundkar on either ground shall, within six months from the date the cause of action arose, apply in the prescribed form to the Mamlatdar for an order of eviction. The Mamlatdar — not a civil court — is the eviction forum. Section 8(3) then directs that on receipt of the application the Mamlatdar shall, after issuing notice to the mundkar and after holding an inquiry, pass such order thereon as he deems fit. This builds adjudication, notice and natural justice into every eviction. The structure also means that even a proved ground does not yield automatic eviction; the Mamlatdar's order follows an inquiry on the merits. The bhatkar must therefore both plead a Section 8 ground and prosecute it through the statutory machinery, in the statutory forum, within the statutory time.

The six-month limitation — a hard gate

The six-month limitation in Section 8(2) is a substantive condition on the right to evict, not a mere procedural technicality. The clock runs from the date the cause of action arose — that is, from the transfer of interest under ground (a), or from the completion of the two-year continuous non-residence under ground (b). A bhatkar who sleeps on the ground loses it: an application filed beyond six months is liable to be rejected, and the mundkar's protection revives in full. This is a deliberate pro-mundkar feature, forcing the landowner to act promptly and preventing stale grounds from being resurrected years later to dislodge a long-settled occupant. In examination problems, dating the cause of action precisely is usually the hinge on which the answer turns. The narrowness of the window underlines the Act's overarching purpose: to provide, in the words repeatedly invoked by the courts, better protection to mundkars against eviction from their dwelling houses. Two consequences follow for the practitioner. First, the limitation interacts with the continuity requirement in ground (b): since the cause of action under clause (b) crystallises only when the full two years of unbroken absence are complete, the six-month period cannot begin to run earlier, and a fresh return to residence resets the analysis entirely. Second, a bhatkar who has allowed the six months to lapse cannot revive the ground by alleging continuing non-residence; the cause of action arose once and is spent, and the mundkar's protection is restored in full notwithstanding the continuing facts on the ground.

Consequences of eviction: removal of materials

Even where eviction is ordered, Section 8(4) preserves a measure of equity for the evicted mundkar. The mundkar is entitled to remove any material belonging to him and used in the dwelling house, unless the bhatkar, at any stage, offers to pay the value of such materials. That value may be fixed by the Mamlatdar or agreed between the parties, and where the bhatkar elects to pay he must do so in cash within six months from the date the order of eviction becomes final. The provision recognises that in the mundkar system the occupant often built or improved the structure himself; it prevents the bhatkar from being unjustly enriched by the mundkar's materials while giving the bhatkar the option to retain an intact house by paying for them. The choice lies with the bhatkar, but the default entitlement — removal — belongs to the mundkar.

Section 8 read with the absolute bar in Section 7

Section 8 cannot be read in isolation from Section 7, which provides the umbrella bar: notwithstanding any custom, usage, contract, decree or order of any court or tribunal or any law, no mundkar shall be evicted from his dwelling house except in accordance with the provisions of the Act. Section 7 also confers a restoration remedy on a mundkar who was in occupation on 4 February 1971 and evicted thereafter but before the appointed date, subject to an application within one year and the bhatkar's failure to prove certain exceptions. Read together, Sections 7 and 8 create a sealed scheme: Section 7 abolishes every pre-existing route to eviction, and Section 8 supplies the only permissible route, on only two grounds, before only one forum. A bhatkar who attempts eviction by self-help, by a civil suit, or by relying on a pre-Act contract acts contrary to Section 7 and his action fails. This is the statutory backbone of the mundkar's security of residence.

Section 8A and the threshold question of status

Most eviction contests turn first on status: is the occupant a mundkar at all? Section 8A enables any person entitled to a right under the Act to move the Mamlatdar for a declaration of that right, including a negative declaration that an occupant is not a mundkar. In Smt. Gulabi Sangtu Devidas v. Smt. Prema Govinda Gauncar, 1994(3) Bom CR 328 (also reported 1995(1) Goa Law Times 154), the Bombay High Court held that proceedings under Section 8A are distinct in scope and purpose from registration proceedings under Section 29, and that the dismissal of an application to be entered in the register of mundkars under Section 29 does not bar a later application for a declaration of mundkarship under Section 8A. The court reasoned that Section 30 gives register entries only presumptive value, while Section 8A confers a substantive right to seek a declaration. This interplay is examined in detail under the recognition of mundkar procedure.

Registration is presumptive, not conclusive

The Gulabi principle was reaffirmed in Shri Vassant Krishna Palyekar v. Mrs. Agnela Figueira, 2013(2) ALL MR 643 (Bombay High Court, Panaji Bench). There the Mamlatdar had rejected an application for registration as mundkar under Section 29, treating the applicant as a mere caretaker; a subsequent Section 8A declaration application was resisted as barred by res judicata. The High Court rejected the objection, holding that an order under Section 29 has only presumptive value until the contrary is proved or a new entry is lawfully substituted, and that rejection of registration does not by itself disentitle a person from filing under Section 8A. The practical consequence for eviction litigation is significant: a bhatkar cannot treat an early adverse Section 29 outcome as conclusively defeating mundkar status, and the occupant retains the route to a substantive declaration before any Section 8 eviction can bite. Status, once genuinely established, is robust.

No civil court: Sections 31 and 32

Because Section 8 lodges eviction with the Mamlatdar, the Act ousts the ordinary civil courts from the field. Section 31(2) provides that no civil court shall have jurisdiction to settle, decide or deal with any question which is, by or under the Act, required to be determined by the Mamlatdar; and Section 32 requires a civil court before which such an issue arises to stay the suit and refer the issue to the Mamlatdar. In Suresh Shirodkar v. Administrative Tribunal, Goa, 1998(3) Bom CR 261, the Bombay High Court analysed this bar of jurisdiction, holding that the question of mundkarship and the consequential eviction are matters reserved to the statutory authorities, with the civil court's role confined to referral under Section 32. The effect is to prevent a bhatkar from circumventing the two restricted grounds of Section 8 by dressing up an eviction as an ordinary title or possession suit. The exclusive forum is part of, not separate from, the restriction of grounds.

The protection survives constitutional challenge

Bhatkars have repeatedly attacked the scheme that makes eviction so difficult, but the protection has held. In Kum. Maria Eliza Marques v. Shri Madhukar M. Moraskar, 1998(3) Bom CR 36, a batch of writ petitions challenged the constitutional validity of the 1985 Amendment to the definition of dwelling house in Section 2(i), arguing it offended Articles 14, 300-A and 31-A and amounted to divesting bhatkars of ownership. The Bombay High Court dismissed the challenge, upholding the amendment and the broader protective scheme as a valid measure for the welfare of mundkars. The decision confirms the doctrinal premise behind Section 8: the legislature has consciously curtailed the bhatkar's right to evict, and that curtailment — grounds restricted to two, forum restricted to the Mamlatdar, time restricted to six months — is a constitutionally permissible regulation of property in service of the mundkar's security. The starting point for the whole regime, and the historical background to it, is set out in the introduction to the Act.