Recognition of Mundkar — Procedure

Recognition of a mundkar is the procedural keystone of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. Until a person is formally declared a mundkar in respect of a particular dwelling house, the protections of the Act — security of residence, restricted eviction, and the right to purchase — remain only potential. This article maps the recognition procedure: the declaratory remedy under Section 8A, the exclusive jurisdiction of the Mamlatdar, the prescribed Rule 14 inquiry, the crucial distinction between the presumptive Section 29 register and a conclusive Section 8A declaration, and the appeal, revision and writ routes that police the process.

The statutory anchor: Section 8A and the declaratory remedy

The procedure for recognising a person as a mundkar flows from Section 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, headed Declaration of right. The provision is deceptively short. Sub-section (1) states that “if any person is entitled to any right under this Act he may move the Mamlatdar by an application for a declaration for such a right,” and sub-section (2) directs that “on receipt of such an application, the Mamlatdar may, after holding such enquiry as may be prescribed, pass such order as he considers fit.” Section 8A was inserted by the Amendment Act 4 of 1998, supplying a self-contained adjudicatory route that did not exist when the Act was first enacted. It is the procedural backbone for fixing, with finality, who is and who is not a mundkar in respect of a given dwelling house. Because the substantive content of mundkarship turns on the definitions of mundkar, bhatkar and dwelling house, the Section 8A inquiry is where those definitions are tested against evidence and a binding order is passed.

The remedy under Section 8A is declaratory and positive or negative in character. An occupant may seek a declaration that he is a mundkar; equally, a bhatkar may seek a negative declaration that the person in occupation is not a mundkar. This bilateral character was recognised across the Panaji Bench authorities, which treat Section 8A as the dispositive mechanism for settling status, distinct from the merely descriptive register maintained under Section 29.

The forum: Mamlatdar's exclusive jurisdiction

The competent authority is the Mamlatdar of the taluka in which the dwelling house is situated. Jurisdiction is not concurrent with the civil court; it is exclusive. Section 31 of the Act, headed Protection of action taken under the Act and bar of jurisdiction of Courts, provides in sub-section (2) that “no Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined, by the Mamlatdar or the Collector or the Government or the Administrative Tribunal.” The question whether a person is a mundkar is squarely a question reserved to the Mamlatdar, so a civil suit seeking that declaration is barred at the threshold.

The Bombay High Court (Panaji Bench) in Smt. Gulabi Sangtu Devidas v. Smt. Prema Govinda Gauncar (1993) read Section 31(2) as ousting the civil court from any inquiry into mundkar status and confirming that the determination is to be made exclusively under the Act. The corollary is procedural: a claimant who wrongly approaches a civil court will be non-suited, and the only path to recognition is the Section 8A application before the Mamlatdar. This exclusivity is what makes the procedural fidelity of the Mamlatdar's inquiry so important — there is no parallel civil forum to correct a defective record.

The application: what the claimant must plead and prove

Section 8A is triggered by an application. The applicant must set out the description and location of the dwelling house, the identity of the bhatkar, and the factual basis on which mundkarship is claimed — lawful occupation of the dwelling house with the consent of the bhatkar, the rendering of services or payment of ground rent (or neither, depending on the definitional limb relied upon), and continuity of residence. These are the same particulars that Section 29(2) requires the village register to carry, namely the description and location of the house, the names of the bhatkar and mundkar, the nature of service or ground rent, the occupation of the mundkar, and the rights referred to in Section 6. The overlap is deliberate: the Section 8A application asks the Mamlatdar to adjudicate, on evidence, the very facts the register only records.

The burden lies on the person asserting the status. Where the applicant relies on a Section 29 entry already standing in his favour, that entry supplies a presumption but not proof; where the bhatkar denies the status, the applicant must lead positive evidence of the ingredients of mundkarship. Recognition under Section 8A is therefore a fact-intensive exercise, and an order cannot be passed mechanically on the strength of the register alone. The closely linked right of the mundkar to purchase the dwelling house under Sections 15 and 16 can only be exercised by a person whose status has first been fixed, which is why the Section 8A inquiry is the practical gateway to every further right under the Act.

The prescribed enquiry: Rule 14(7), (8) and (9)

The phrase “such enquiry as may be prescribed” in Section 8A(2) imports the Mundkars (Protection from Eviction) Rules, 1977. The Panaji Bench has repeatedly held that a Section 8A application obliges the Mamlatdar to conduct an inquiry in terms of Rule 14, sub-rules (7), (8) and (9) of the Rules. In Shri Vassudev Pandurang Naik v. Shri Krishna Vithoba Xete Tilve, 2006(3) ALL MR 481, the Court set aside an order dismissing a Section 8A application that had been thrown out merely on the strength of a prior Section 29 position, holding that the Mamlatdar “was obliged to hold an inquiry in terms of Rule 14, sub-rules (7), (8) and (9)” and that the question of mundkarship “ought to have been decided only after holding an inquiry as provided under the Act and the Rules.”

The same procedural requirement was reaffirmed in Shri Sandesh Datta alias Dattaram Salgaonkar v. Shri Vithal Vasu Mayekar, 2019(2) ALL MR 857, where the Court held that the Mamlatdar must conduct the Rule 14(7)–(9) inquiry before determining whether the applicants qualify for declaration as mundkars. In substance, the prescribed enquiry requires notice to the rival party, the recording of oral and documentary evidence, an opportunity of hearing, and a reasoned order on the ingredients of mundkarship — not a summary disposal. A declaration passed without such an inquiry is liable to be quashed in writ jurisdiction.

Section 29 register distinguished from Section 8A declaration

A recurring confusion is the relationship between registration under Section 29 and declaration under Section 8A. Section 29, headed Register of mundkars, directs the Government to cause a register of mundkars to be prepared and maintained in every village, recording the particulars listed in Section 29(2). Section 30, headed Presumptive value of the record, provides that an entry “shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereafter.” The register is thus an administrative record carrying only a rebuttable presumption — it is descriptive, not dispositive.

The authorities draw the line sharply. In Shri Vassant Krishna Palyekar v. Mrs. Agnela Figueira, 2013(2) ALL MR 643, the Court held that “the scope of an application under Section 8-A and under Section 29 of the Act is entirely different,” that entries under Section 29 are “only presumptive in nature” by force of Section 30, while a declaration under Section 8A “concludes the rights of the parties finally.” The practical consequence for procedure is twofold: first, a person registered under Section 29 is not thereby a recognised mundkar until a Section 8A declaration is made; and second, the mere existence of a register entry cannot found a summary dismissal of, or a summary grant on, a Section 8A application. As Vassudev Naik put it, registration “cannot be taken as conclusive until that person is declared as mundkar in respect of the dwelling house.” The security of residence and other rights of a mundkar therefore crystallise only once the declaratory order under Section 8A is in place.

Effect of a prior Section 29 rejection: no bar to Section 8A

Because Section 29 and Section 8A occupy different procedural planes, the rejection of a registration application does not foreclose a declaratory application. In Smt. Gulabi Sangtu Devidas v. Smt. Prema Govinda Gauncar (1993), the Panaji Bench addressed precisely whether proceedings under Section 8A are maintainable after the Mamlatdar has rejected an application under Section 29 to be entered in the register. The Court held that they are: it is “not correct to suggest that the only remedy of an aggrieved party against the order passed by the Mamlatdar under Section 29 is to file an appeal,” and the failure to appeal a Section 29 order “does not conclude the right to seek a declaration under Section 8A.”

This reasoning was followed in Vassant Palyekar, which held that “an application under Section 8-A is maintainable inspite of the decision recorded by the Mamlatdar under Section 29,” and that a Section 29 finding cannot operate as res judicata against a Section 8A claim. The procedural lesson is that a Section 8A application cannot be dismissed at the threshold on the ground that an earlier Section 29 application was refused; the Mamlatdar must still hold the prescribed Rule 14 inquiry and decide the status on evidence. The presumptive, non-conclusive character of the register under Section 30 is the doctrinal root of this rule.

Natural justice, evidence and the reasoned order

The Section 8A inquiry is a quasi-judicial proceeding, and the Mamlatdar must observe the principles of natural justice. The rival party — ordinarily the bhatkar where the applicant is the occupant, or the occupant where the bhatkar seeks a negative declaration — must be given notice and a reasonable opportunity of being heard. Section 27 of the Act clothes the authorities with the powers of a civil court for the purpose of conducting inquiries, including the power to summon witnesses and compel production of documents, which underpins the evidence-recording stage of the Rule 14(7)–(9) inquiry.

Both Vassudev Naik and Sandesh Datta emphasise that the determination of mundkarship must rest on actual inquiry and recorded evidence, not on the threshold strength of the register. A bare order that does not engage with the ingredients of mundkarship — lawful occupation of the dwelling house, the consent of the bhatkar, and continuity of residence — is unsustainable. The order must be a speaking order, because it is the foundation for further consequences such as the bhatkar's limited and restricted grounds of eviction and the mundkar's right to purchase. Failure to record reasons is itself a ground for interference in revision or in writ.

Appeal, revision and writ: the corrective hierarchy

An order under Section 8A is not the end of the road. Section 24, headed Appeal, provides that from every original order, other than an interim order, passed by the Mamlatdar, an appeal lies to the Collector. From an order passed in appeal, Section 25, headed Revision, provides a revision to the Administrative Tribunal, and a further revision in the cases it specifies. Section 26 defines the extent of powers in appeal or revision, and Section 28 deals with limitation and court fees governing these proceedings. The hierarchy ensures that errors in the recognition order — whether of fact, of procedure, or of the failure to hold the prescribed Rule 14 inquiry — can be corrected within the statutory channel.

Beyond the statutory hierarchy, the supervisory jurisdiction of the High Court under Articles 226 and 227 has repeatedly been invoked. In Vassudev Naik, Vassant Palyekar and Sandesh Datta, the Panaji Bench exercised writ jurisdiction to quash Section 8A orders that had been passed without the prescribed inquiry or in disregard of the Section 29/Section 8A distinction. The availability of writ review reflects the quasi-judicial nature of the recognition exercise and the bar on civil court jurisdiction under Section 31(2) — with the civil court ousted, the High Court's supervisory jurisdiction is the ultimate guarantee that the recognition procedure is followed faithfully.

Consequences of recognition: what the declaration unlocks

A declaration under Section 8A is not an end in itself; it is the trigger for the substantive protections of the Act. Once a person is recognised as a mundkar, he enjoys the statutory security of residence and cannot be evicted save on the narrow and exhaustively enumerated grounds in the Act, which themselves require the bhatkar to establish a genuine, proven need such as the bona fide need of the bhatkar for personal occupation. The recognised mundkar may also invoke the right to purchase the dwelling house with the site under Sections 15 and 16, paying a reasonable price fixed under the Act — a right that, as Sandesh Datta holds, cannot be initiated merely on the strength of a Section 29 registration but presupposes a Section 8A declaration.

Conversely, where the Mamlatdar passes a negative declaration — that the occupant is not a mundkar — the occupant loses the shield of the Act, and the bhatkar's ordinary remedies in respect of the property revive, subject to the appeal and revision route. The recognition procedure under Section 8A is therefore the pivot of the entire scheme: it converts the descriptive, presumptive register into a binding adjudication of status. For the wider scheme and its objects, see the Goa Mundkars Act hub and the introduction to the Act.