Defining the 'Mundkar': An Analysis of Section 2(p) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975

Defining the 'Mundkar': An Analysis of Section 2(p) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975

Introduction

The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter "the Mundkar Act" or "the Act") stands as a significant piece of socio-legal legislation in Goa, aimed at providing security of tenure to a class of persons known as 'mundkars' who reside in dwelling houses situated on land belonging to others, termed 'bhatkars'. The Act seeks to protect mundkars from arbitrary eviction and grants them the right to purchase their dwelling houses.[9] Central to the applicability and scope of this protective legislation is the definition of "mundkar" itself, enshrined in Section 2(p) of the Act. This article undertakes a comprehensive analysis of Section 2(p), examining its constituent elements, judicial interpretations, and the implications of its various clauses, including the crucial Explanation and specified exclusions. Understanding this definition is paramount for appreciating the rights and protections afforded under the Mundkar Act.

The Legislative Framework: The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975

The Mundkar Act was enacted with the express objective "to provide for better protection of mundkars against the eviction of their dwelling houses and for granting them the right to purchase the same and to make certain provisions connected therewith."[9] This legislative intent underscores its character as a beneficial statute designed to address historical socio-economic imbalances where individuals, often rendering services or having established long-term habitation with consent, lacked formal ownership rights over their homes. The Act confers heritable, though not transferable, rights upon mundkars in their dwelling houses,[7, 9] and provides robust mechanisms against wrongful dispossession.[7] The provisions of the Act have overriding effect over any other law, custom, usage, decree, order, agreement, or contract inconsistent with its provisions.[9] Furthermore, the Mundkar Act is included in the Ninth Schedule of the Constitution of India, thereby protecting its legality and constitutionality from challenges based on inconsistency with Part III of the Constitution.[6]

Deconstructing Section 2(p): The Definition of "Mundkar"

Section 2(p) of the Mundkar Act provides the cornerstone definition that determines eligibility for the protections under the Act. It states:

“mundkar” means a person who with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and further lays down that includes a member of his family, but does not include the persons mentioned in Clauses (i) to (iv).[1]

Core Elements

The definition comprises several key elements that must be satisfied for a person to be recognized as a mundkar:

  • Lawful Residence with Fixed Habitation: The individual must reside in the dwelling house lawfully and with a fixed habitation, implying a degree of permanence and stability in residence, not mere transient or permissive occupation.[1, 4]
  • Consent of the Bhatkar: The residence must be with the consent of the 'bhatkar' (defined in Section 2(f) as the owner of the land on which the mundkar has a dwelling house[9, 15]) or a person acting on the bhatkar's behalf. This consent is a crucial ingredient.[1, 4]
  • Dwelling House: The residence must be in a "dwelling house." Section 2(i) of the Act defines "dwelling house" as "the house in which the mundkar resides with a fixed habitation."[1] This definition has itself been subject to judicial interpretation and legislative amendment. Initially, a narrow interpretation suggested the house had to be constructed by the mundkar.[11, 18] However, this was found not to be in consonance with legislative intent, leading to an amendment clarifying that a "dwelling house" includes a house "whether such house was constructed by the mundkar at his own expense or at the bhatkar's expense or with financial assistance from the bhatkar."[6, 7] The definition of "dwelling house" also includes the appurtenant land around it, subject to specified limits, and other structures connected with the mundkar's business or profession, as well as customary easements.[1, 7]
  • With or Without Obligation to Render Services: The status of a mundkar is not contingent upon an obligation to render services to the bhatkar. This distinguishes mundkarship from certain types of service tenancies.[1, 4]
  • Inclusion of Family Members: The definition explicitly includes a "member of his family."[1, 4] Section 2(n) of the Act defines "member of family" to mean "spouse, son, unmarried daughter and includes father, mother, grandson, widowed daughter, widowed granddaughter, solely dependent on the Mundkar for maintenance."[19] This inclusion is significant in the context of heritability of mundkarial rights under Section 3 of the Act.[19]

The Explanation Clause: Deemed Consent and Lawful Residence

An important adjunct to Section 2(p) is the Explanation clause, which creates a legal fiction regarding lawful residence and consent. It states:

An Explanation was added to the said definition, stating that a person shall be deemed to be lawfully residing with the consent of the Bhatkar in a dwelling house if such person resides in it for a period exeeding one year prior to the appointed date and the bhatkar has not initiated any proceedings during the said period of one year to evict such person from the dwelling house, through a competent Court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for eviction of such person.[1, 4]

The "appointed date" under the Mundkar Act is 12th March 1976.[12] This Explanation provides a pathway for individuals to be recognized as mundkars even without explicit proof of initial consent, provided they meet the criteria of residence for over a year prior to the appointed date and the bhatkar's inaction or failure in eviction proceedings.[9] The Bombay High Court in *Smt. Bhaguirati Narayan Borkar v. Smt. Ema Lima Cota Furtado* clarified that it is sufficient for the bhatkar to have instituted eviction proceedings before or within one year prior to the appointed date; the occupant can then avail the benefit of the deeming provision only if the landlord does not succeed in obtaining an eviction decree.[16]

Exclusions from the Definition

Section 2(p) specifically excludes four categories of persons from being considered mundkars, even if they might otherwise appear to meet some of the primary criteria. These exclusions are:[4, 12]

  1. A person paying rent to the bhatkar for the occupation of the house.
  2. A domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence.
  3. A person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment.
  4. A person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.

These exclusions are critical in demarcating the scope of mundkarship and preventing its application to individuals whose occupancy is based on distinct legal relationships such as tenancy, specific employment contracts with tied accommodation, or caretaking arrangements.

Judicial Interpretation and Application

The various components of Section 2(p) have been the subject of considerable judicial scrutiny, leading to a body of case law that elaborates on their meaning and application.

Consent of the Bhatkar and Lawful Residence

The requirement of "lawful residence" with the "consent of the bhatkar" is fundamental. The Explanation to Section 2(p) provides a deeming provision for this element. In *Smt. Monica Fernandes v. Shri Suresh Shirodkar And Others*, the court reiterated the conditions under the Explanation for deemed lawful residence.[9] The case of *Maria Fernandes v. Ishaprema Niketan And Others* further illustrated that if a bhatkar had already filed an eviction suit contending the occupant was a trespasser, and succeeded in obtaining a decree, the occupant could not claim to be a deemed mundkar under the Explanation.[16] The lawful nature of residence is key; for instance, in *Smt. Esmeralda Rosario And Others v. Shri Cornelic Pereira And Another*, the court examined whether a person residing under a specific contractual agreement, which was to expire, could be considered "lawfully residing" for the purposes of the Mundkar Act, distinct from the exclusions.[12]

The Concept of "Dwelling House"

The term "dwelling house" as defined in Section 2(i) is integral to the definition of a mundkar. The interpretation of "dwelling house" underwent a significant evolution. The ruling in *Santana Furtado Dias v. Smt. Uttam Tari And Others*[11] initially held that the dwelling house must be constructed by the mundkar. This interpretation, as noted in *MR. SHAIK HUSSAIN SHAIK YUSUF v. SHRI. ABDUL KARIM KHAN & 3 ORS.*[6] and *Kum. Maria Eliza Marques v. Shri Madhukar M. Moraskar & Others*[18], was perceived by the legislature as contrary to the Act's object, potentially depriving many of its benefits. Consequently, Section 2(i) was amended by the Goa, Daman and Diu Mundkars (Protection from Eviction) (Amendment) Bill, 1985, to clarify that a dwelling house is one where the mundkar resides with fixed habitation, "whether such house was constructed by the mundkar at his own expense or at the bhatkar's expense or with financial assistance from the bhatkar."[6, 7] This amendment broadened the scope of protection significantly. The definition also includes appurtenant land, the extent of which varies depending on whether the land is within a village panchayat jurisdiction.[1, 7]

Analyzing the Exclusions

The exclusionary clauses in Section 2(p) have been frequently litigated:

  • Clause (i) - Person paying rent: This distinguishes a mundkar from a tenant. If rent is paid for the occupation of the house, the Mundkar Act typically does not apply.[4, 12]
  • Clause (ii) - Domestic servant or chowkidar: In *Caetano Antonio De Mello v. Laximi Vamon Naik*, the court emphasized that the definition of 'Mundkar' under Section 2(p) clearly excludes a domestic servant residing in an out-house of the employer. The nature of the relationship and the purpose of residence are key factors.[13]
  • Clause (iv) - Caretaker: This exclusion has been a common point of contention. In *Gabriel De Sa v. Babuso Pednekar And Others*, the question arose whether a person lawfully residing with consent, but admittedly a caretaker of the property, could be a mundkar. The court analyzed this exclusion, highlighting that residence as a caretaker for maintaining the house negates mundkar status.[14] Similarly, in *MS.ADELIA ALBUQUERQUE AND 2 ORS., v. SHRI VITHAL B.DABHOLKAR AND 10 ORS.*, the plea that the respondent was merely a caretaker permitted to repair the house to keep it habitable was central to challenging their mundkar status.[17]

The determination often hinges on the specific facts and evidence presented regarding the nature of the occupant's relationship with the bhatkar and the purpose of their residence.

The Explanation Clause in Practice

The Explanation to Section 2(p) shifts the focus to the bhatkar's actions (or inactions) regarding eviction. As seen in *Mitra Of Archdiocese Of Goa And Daman v. K. Vijayadharan*, the plea of mundkarship, including reliance on the Explanation, can be raised in legal proceedings.[4] The critical period is "one year prior to the appointed date" (i.e., 12th March 1975 to 11th March 1976). If the bhatkar did not initiate eviction proceedings during this period against a person residing for over a year, or failed in such proceedings, deemed consent is established.[1, 9]

Procedural Aspects and Adjudication of Mundkarship Claims

While this article focuses on Section 2(p), it is pertinent to note that the determination of whether a person is a mundkar is vested with specific authorities under the Act. The Mamlatdar is empowered to prepare and maintain a register of mundkars after conducting an inquiry.[2, 3] Section 31(2) of the Act ousts the jurisdiction of Civil Courts to settle, decide, or deal with any question required to be determined by the Mamlatdar under the Act, including the question of mundkarship.[2, 3] If such an issue arises in a Civil Court, Section 32 mandates that the issue be referred to the Mamlatdar, whose decision is binding on the Civil Court, subject to appeals provided within the Mundkar Act itself.[8] An entry in the register of mundkars is presumed to be true until the contrary is proved or a new entry is lawfully substituted.[2, 3]

Socio-Legal Context and Legislative Intent

The Mundkar Act, and particularly its definition of "mundkar," must be understood within its socio-legal context. As observed in *Smt. Monica Fernandes v. Shri Suresh Shirodkar And Others*, the intention of the Legislature is to protect persons occupying dwelling houses located in properties belonging to bhatkars.[9] The Act is a beneficial legislation aimed at providing security and preventing the arbitrary displacement of individuals who have established homes, often over generations, with the bhatkar's consent. The challenges in proving long-standing oral consents or arrangements likely prompted the inclusion of the Explanation to Section 2(p). The legislative approach bears resemblance to protections afforded to similar vulnerable groups in other regions, such as the 'kudikidappukars' in Kerala, where agrarian reforms sought to protect landless families residing on others' lands.[10] The amendment to Section 2(i) regarding the construction of the dwelling house further underscores the legislature's commitment to a broad and beneficial interpretation to achieve the Act's protective objectives.[6]

It is also noteworthy that Section 39 of the Act exempts lands owned or held by the Government from its applicability. This was a determining factor in *Shri Shankar Babani Halarnkar Petitioner v. Smt. Sharayu Kauthankar*, where a claim for mundkarship on government-granted land was rejected.[15]

Conclusion

Section 2(p) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, is the linchpin of the entire legislative scheme. Its detailed definition, encompassing core requirements, a crucial deeming provision via the Explanation, and specific exclusions, delineates the category of individuals entitled to the significant protections offered by the Act. Judicial interpretations have further refined the understanding of terms like "lawful residence," "consent," "dwelling house," and the scope of the exclusions, particularly concerning caretakers and domestic servants. The evolution of the definition of "dwelling house" through legislative amendment highlights the responsive nature of the law to ensure its objectives are met. Ultimately, Section 2(p) reflects a careful balancing act, aiming to provide robust protection to genuine mundkars while distinguishing them from other forms of occupancy, thereby striving to achieve social justice and security of tenure for a vulnerable section of society in Goa.

References

  1. [1] Baburao Vishnu Naik v. Ramchandra Vishnu Naik (Bombay High Court, 1989)
  2. [2] Smt. Gulabi Sangtu Devidas And Others v. Smt. Prema Govinda Gauncar And Others (Bombay High Court, 1993)
  3. [3] Smt. Prema Govinda Gauncar And ... v. Smt Prema Govinda Gauncar And (Bombay High Court, 1993)
  4. [4] Mitra Of Archdiocese Of Goa And Daman v. K. Vijayadharan . (Bombay High Court, 1999)
  5. [5] State of Maharashtra v. Mayer Ham George (Supreme Court Of India, 1964) (Note: This reference was provided but deemed not directly relevant to Sec 2(p) of Mundkar Act analysis and thus not substantively integrated.)
  6. [6] MR. SHAIK HUSSAIN SHAIK YUSUF v. SHRI. ABDUL KARIM KHAN & 3 ORS. (Bombay High Court, 1997)
  7. [7] SHRI. INACIO ROSARIO FERNANDES & ANR. v. SMT. AMINABAI MOHAMMAD ISMAIL & 3 ORS. (Bombay High Court, 1997)
  8. [8] Suresh Shirodkar v. Administrative Tribunal, Goa, Daman And Diu And Others (Bombay High Court, 1998)
  9. [9] Smt. Monica Fernandes v. Shri Suresh Shirodkar And Others . (Bombay High Court, 1991)
  10. [10] Kum. Maria Eliza Marques v. Shri Madhukar M. Moraskar & Others (Bombay High Court, 1997) (referring to Kerala High Court on kudikidappukaran)
  11. [11] Santana Furtado Dias v. Smt. Uttam Tari And Others (1985 SCC ONLINE BOM 22, Bombay High Court, 1985)
  12. [12] Smt. Esmeralda Rosario And Others v. Shri Cornelic Pereira And Another (1996 SCC ONLINE BOM 505, Bombay High Court, 1996)
  13. [13] Caetano Antonio De Mello v. Laximi Vamon Naik (2014 SCC ONLINE BOM 2992, Bombay High Court, 2014)
  14. [14] Gabriel De Sa v. Babuso Pednekar And Others (1998 SCC ONLINE BOM 143, Bombay High Court, 1998)
  15. [15] Shri Shankar Babani Halarnkar Petitioner v. Smt. Sharayu Kauthankar, (Since Dec. Through Lr'S) (2010 SCC ONLINE BOM 1230, Bombay High Court, 2010)
  16. [16] Maria Fernandes… v. Ishaprema Niketan And Others… (Bombay High Court, 2001)
  17. [17] MS.ADELIA ALBUQUERQUE AND 2 ORS., v. SHRI VITHAL B.DABHOLKAR AND 10 ORS., (Bombay High Court, 2011)
  18. [18] Kum. Maria Eliza Marques… v. Shri Madhukar M. Moraskar & Others… (Bombay High Court, 1997) (discussing Santana Furtado Dias and amendment to Sec 2(i))
  19. [19] SMT. HENRIQUETA DSOUZA (SIN DEC)THROUGH LRS v. SHRI. MANGESH D. MISHAL AND 3 ORS., (Bombay High Court, 2013)