Rights of Mundkar — Security of Residence (Sections 3–7)

The heart of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 lies in Chapter II, where Sections 3 to 7 convert a precarious occupant — a person who, with the bhatkar's consent, resides with fixed habitation in a dwelling house — into the holder of a statutorily entrenched, near-absolute security of residence. These five sections make the mundkar's right heritable, bar his eviction save under the Act, restore wrongful dispossession, arm him against threatened ouster, guarantee his power, water and customary easements, and protect his right to repair and improve. Read together with the hub on the Mundkars Act, they form the protective spine that every later remedy depends upon.

The Protective Scheme of Chapter II

Chapter II of the Act is titled "Rights and Liabilities" and runs from Section 3 to Section 18. Sections 3 to 7 (with the inserted Sections 7A and 8) constitute the security-of-residence core. The Preamble declares the statute's purpose: "to provide for better protection to mundkars against eviction from their dwelling houses and for granting them the right to purchase the same". Because it is avowedly beneficial, welfare legislation enacted to undo a feudal land-tenure relationship, courts construe it liberally in favour of the mundkar and strictly against the bhatkar. The entire scheme presupposes the statutory triad defined in Section 2 — the mundkar, bhatkar and dwelling house — and channels every dispute to the Mamlatdar, whose jurisdiction Sections 31 and 32 make exclusive. The five sections discussed here do not create a tenancy; they create a sui generis status of protected residence that the bhatkar cannot dislodge by contract, custom or civil decree.

Section 3 — A Heritable but Inalienable Right

Section 3 is deceptively short: "The rights of a mundkar in his dwelling house shall be heritable and shall not be transferable." Two consequences flow. First, on the mundkar's death his protected status passes to his heirs, so the bhatkar cannot treat the residence as having lapsed. Second, the right is locked to the person and his family — it cannot be sold, gifted or assigned to a stranger, preventing the protection from becoming a tradeable commodity divorced from genuine residence. In Mrs. Henriqueta D'Souza v. Shri Mangesh D. Mishal, 2014(7) ALL MR 856, the Bombay High Court (Panaji Bench) held that the heritable right under Section 3 extends to the "member of the family" defined in Section 2(n) and to successors in the order of succession, but only where the successor was actually residing with the mundkar with fixed habitation when the inheritance opened. A legal heir cannot inherit the mundkarship merely by being in the line of succession; he must independently satisfy the residence-with-fixed-habitation element that is the gravamen of being a mundkar. The non-transferability limb thus works in tandem with the residence requirement to keep the right tethered to its protective purpose.

Section 4(1) — The Absolute Bar to Eviction

Section 4 is the keystone. Sub-section (1) provides that "notwithstanding anything to the contrary provided in 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 this Act." The non-obstante clause is sweeping: it overrides private contract, immemorial usage, and even a prior civil-court decree. The practical effect is that the only doors to lawful eviction are those the Act itself opens — principally the two narrow grounds in Section 12 (transfer of interest after commencement, or two years' continuous non-residence) read with the bhatkar's bona fide requirement framework. A landlord who obtains an ordinary ejectment decree in a civil suit cannot execute it against a mundkar; the bar operates regardless of the form the proceeding took. Because whether the occupant is a "mundkar" and the structure a "dwelling house" are themselves questions reserved to the Mamlatdar, the civil court — as held in Antonio Salvador Francisco v. Pedro Carvalho, 2000(1) ALL MR 612 — must stay its hand and refer the issue under Section 32 whenever a triable mundkar plea is raised.

Section 4(2)-(9) — Restoration of Wrongful Dispossession

The remaining sub-sections of Section 4 give teeth to the bar by reaching backwards. Section 4(2) entitles any mundkar who was in occupation of a dwelling house on 4th February, 1971 and was evicted thereafter but before the appointed date (12 March 1976) to restoration, provided he applies to the Mamlatdar in the prescribed form within one year of the appointed date and the bhatkar cannot prove one of the saving facts — eviction in execution of a Mamlatdar, Tribunal or civil-court order; payment of consideration or grant of an alternative site or dwelling; or that the dwelling house has been destroyed, dismantled or removed. The Explanation to clause (c) is anti-evasion: if the Mamlatdar is satisfied the house was destroyed or dismantled to defeat the Act, the bhatkar must provide a similar dwelling house at his own cost on the same or nearest property. Section 4(3) gives a parallel one-year remedy to a mundkar in possession on the appointed date but evicted thereafter in contravention of the Act. Section 4(6) empowers the Collector, where the mundkar omitted to act in time for reasons beyond his control, to condone delay within one year of the time-limit. Section 4(7) criminalises wrongful eviction or interference with Section 6 rights — imprisonment up to one year or fine up to two thousand rupees, plus compensation — and Section 4(9) lets the Mamlatdar summarily remove a person who defies a restoration order and put the mundkar back in possession.

Section 5 — Relief Against Threatened Wrongful Dispossession

Where Section 4 cures completed eviction, Section 5 is preventive. A mundkar in possession who "apprehends that he may be dispossessed of the dwelling house by or on behalf of the bhatkar contrary to the provisions of this Act" may apply to the Mamlatdar in the prescribed manner for an order safeguarding his right to possession (Section 5(1)). On enquiry, if satisfied the applicant is entitled to continue in possession, the Mamlatdar may direct the bhatkar or any person acting on his behalf to refrain from disturbing possession otherwise than in accordance with law (Section 5(2)). Critically, Section 5(3) confers an interim power: if it is proved by affidavit or otherwise that the bhatkar is threatening the mundkar with the aim of evicting him, the Mamlatdar may grant a temporary injunction restraining eviction or injury until final disposal or further orders. Section 5(4) imports natural justice — except where the very object of the injunction would be defeated by delay, the Mamlatdar must give notice to the opposite party before granting it. Section 5 thus equips the Mamlatdar with a civil-court-like injunctive jurisdiction, reflecting that mundkar disputes are taken out of ordinary courts and vested in a specialised revenue authority whose orders, as recognised in Suresh Shirodkar v. Administrative Tribunal, Goa (Bombay HC, 22 January 1998), are themselves subject to appeal and revision under the Act.

Section 6 — Power, Water and Customary Easements

Security of residence would be hollow if a bhatkar could starve the mundkar out by cutting essential services. Section 6(1)(a) forbids the bhatkar, "without just or sufficient cause", from cutting off, withholding or interfering with any supply of electricity or water or any customary easement enjoyed by the mundkar immediately before the appointed date in respect of his dwelling house — and this overrides any law, contract, judgement or decree to the contrary. If such supply or easement is interrupted, Section 6(1)(b) gives the mundkar six months from the accrual of the cause of action to seek a Mamlatdar's order restoring it. Section 6(2) and (3) allow the mundkar to pre-empt threatened interference by seeking an injunction, and again Section 6(4) requires notice before injunction unless delay would defeat the purpose. The right is not one-sided: Section 6(5) bars the mundkar from disturbing the bhatkar's enjoyment of the adjoining portion of his property, on pain of compensation fixed by the Mamlatdar. A 1991 proviso, inserted by the Amendment Act 9 of 1991, lets the mundkar draw electricity or pipe water from any public source or government scheme even where this uses the adjoining portion, subject to compensation for damage. The customary easement is defined within "dwelling house" itself — Section 2(i)(iii) includes the customary easement of access to a public road, well or other place that the residents have been enjoying.

Section 7 and 7A — Repair, Improvement and Reconstruction

Section 7 secures the physical fabric of the home. A mundkar has the right to maintain, repair, improve or reconstruct his dwelling house "without, in any way, increasing the plinth area thereof", and to obtain electricity supply and pipe water on the same terms as any owner of a house. The plinth-area cap is the safeguard against a mundkar using repair as a pretext to encroach on the bhatkar's land. An Explanation inserted by the Amendment Act 9 of 1991 clarifies that "improve" includes constructing, within the dwelling house, a sump or overhead tank, water cistern, bathroom, toilet, septic tank or soak pit, subject to obtaining permission from the concerned authorities. The right to draw water and power "on the same terms as any owner" dovetails with Section 6, ensuring the mundkar is not treated as a second-class consumer. Section 7A, inserted by the Amendment Act 2 of 1993, goes further: a mundkar may reconstruct or rebuild his dwelling house "using the same existing plinth area of his old demolished house, without producing the N.O.C. from the Bhatkar." This removes the bhatkar's veto over reconstruction, a frequent pressure point, while still confining the mundkar to the original footprint. Together Sections 7 and 7A let the mundkar keep his home habitable and even rebuild it without the bhatkar's leave, completing the picture of a protected, durable residence.

What the Protection Attaches To — The Dwelling House and Its Limits

The reach of Sections 3 to 7 is co-extensive with the statutory meaning of "dwelling house" in Section 2(i): the house in which the mundkar resides with fixed habitation, together with the land around and appurtenant to it, subject to a maximum of five metres (in a village panchayat area) or two metres (elsewhere) from the outer walls, or alternatively three hundred square metres in a panchayat area and two hundred square metres within a municipal council. It also includes, under Section 2(i)(ii), the cattle shed, stable, pig-sty, workshop or other structure connected with the mundkar's business or profession, and under Section 2(i)(iii) the customary easement. The spatial cap is jurisdictional: in Antonio Salvador Francisco v. Pedro Carvalho, 2000(1) ALL MR 612, the Bombay High Court held that a shed situated about fifty metres from the respondent's house fell outside the statutory area and so could not form part of the dwelling house, with the result that no mundkarship question arose for the Mamlatdar and the civil suit could proceed. Whether a structure is a "dwelling house" and whether its occupant is a "mundkar" are, as confirmed in Kum. Maria Eliza Marques v. Madhukar M. Moraskar, 1998(2) ALL MR 703, questions for the Mamlatdar to decide on enquiry under the declaration machinery of Section 8A.

The Mamlatdar as Exclusive Forum

Every remedy in Sections 4, 5 and 6 is routed through the Mamlatdar, and this is not accidental. Section 31(2) bars civil courts from settling any question that the Act requires the Mamlatdar to decide, and Section 32(1) compels a civil court, where such an issue arises, to stay the suit and refer the issue to the Mamlatdar. The combined effect, as the High Court explained in Antonio Salvador Francisco v. Pedro Carvalho, is that a bare or untriable plea of mundkarship will not oust the civil court, but a genuine triable plea must be referred. The Mamlatdar conducts the enquiry, the orders are appealable and revisable within the Act's own hierarchy (Sections 24 to 26) up to the Administrative Tribunal, and the finality of the Mamlatdar's determination on the referred issue — and the proper appellate route from it — was the central question settled in Suresh Shirodkar v. Administrative Tribunal, Goa. This self-contained adjudicatory structure means a mundkar asserting security of residence under Sections 3 to 7 should ordinarily seek a declaration of status under Section 8A before the Mamlatdar rather than litigating in the ordinary courts.

How Security of Residence Connects to Eviction and Purchase

Sections 3 to 7 are the defensive shield; the rest of Chapter II supplies both the sword the bhatkar may occasionally wield and the offensive right the mundkar ultimately gains. The bar in Section 4(1) yields only to the closed list of grounds in Section 12 — transfer of the mundkar's interest after commencement, or the mundkar and his family ceasing to reside for two continuous years — and even then eviction must be ordered by the Mamlatdar, never self-help. The bhatkar's limited ability to recover possession for his own genuine requirement is governed by the bona fide need regime, which the welfare character of the Act keeps tightly confined. Conversely, the same secure occupation that Sections 3 to 7 protect ripens, under Section 15, into the mundkar's right to purchase the dwelling house at a price fixed under the statutory machinery, transforming a protected occupant into an owner. Security of residence is thus not an end in itself but the foundation on which both the limited grounds of eviction and the eventual conferment of ownership are built — the doctrinal centre of gravity of the entire enactment.