Mr. Gajanan Shankar Sawant, Mr. Krishnanath Shankar Sawant and Mr. Dilesh Rawalnath Sawant vs Mrs. Kanti Uttam Naik and Others

A.P. Lavande, J.—Heard Mr. C. Mascarenhas, learned Advocate for the Petitioners and Mr. J. Godinho, learned Advocate for Respondent Nos. 1, 3, 5, 6, 8 to 12, 13(a) and 13(b). None present on behalf of other Respondents, though served.

Rule. By consent heard forthwith.

By this petition under Article 227 of the Constitution of India, the Petitioners have challenged the order dated 22.1.2009 passed by Administrative Tribunal Suit dismissing the revision application filed by the Petitioners challenging the order dated 27.2.1996 passed by the Collector North Goa Panaji in case No. 2-92-TNC-APL.

One Mr. Kalu Falgum Naik, the predecessor of Respondent filed an application for purchase of Agricultural field belonging to the Petitioners before the Mamlatdar at Ponda which was allowed by learned Mamlatdar. The Petitioners herein filed appeal No. 2-92-TNC-APL before the Collector North Goa Panaji challenging the said order. The appeal was taken up by the Collector and adjourned on various dates. On 20.12.1994 since the Petitioners and his Advocate were absent the appeal was dismissed for default. Thereafter, Petitioners herein filed an application for restoration which was dismissed on 27.2.1996. The Collector North Goa held that since by notification issued by State Government the Deputy Collector was appointed to perform the functions of Collector, the application for restoration would lie before the Deputy Collector. The revision preferred against the said order has also been dismissed by the Administrative Tribunal.

Mr. Mascarenhas, learned Counsel for the Petitioners states that the Collector as well as Administrative Tribunal have erred in law in passing the impugned orders. According to Mascarenhas, if Collector had no jurisdiction to entertain the appeal he ought not to have entertained the appeal and fixed the matter for hearings on different dates. He further submitted that serious prejudice would cause to the Petitioners if the appeal preferred by the Petitioners against the order passed by the Mamlatdar is not restored.

Per contra, Mr. J. Godinho, learned Counsel for the Respondent Nos. 1, 3, 5, 6, 8 to 12, 13(a) and 13(b) has supported the impugned orders passed by both the Courts and submitted that Collector as well as Administrative Tribunal have rightly held that Petitioners ought to have filed appeal before the Deputy Collector and not before the Collector since by notification dated 23.9.1967 the State Government had conferred powers of the Collector under the Act on the Deputy Collector.

Having heard, the learned Counsel for the Petitioners and Respondent Nos. 1, 3, 5, 6, 8 to 12, 13(a) and 13(b) and having perused the record, I am of the considered opinion that both the orders passed by Collector and the Administrative Tribunal deserve to be quashed and set aside.

In terms of the notification dated 23.9.1967 powers of the Collector under the Act have been conferred on the Deputy Collector. If that is the case, I fail to understand as to how Collector could entertain the appeal and fix the matter and adjourn it from time to time. The Collector ought to have informed the parties that in view of the notification dated 23.9.1967 he had no jurisdiction to entertain the appeal and he ought not to have entertained the appeal. The Collector having entertained the appeal could not have dismissed the appeal which he did. If Collector was not having powers to entertain the appeal, he could not have firstly fixed the matter on merits and on the same ground could not have dismissed the appeal. The Collector himself ought to have put the Petitioners herein to notice that the appeal preferred before him was not maintainable so that the Appellants before him could have resorted to the remedy of appeal before the Deputy Collector. The Collector having not done this, the Petitioners herein cannot be made to suffer. Therefore, in the interest of justice it would be appropriate to set aside both the orders passed by the Collector and the Administrative Tribunal.

Accordingly the order dated 27.2.1996 passed by the Collector and the judgment and order dated 22.1.2009 passed by the Administrative Tribunal are quashed and set aside.

In order to facilitate the disposal of the appeal preferred by the Petitioners, the parties are directed to appear before the Collector North Goa Panaji who shall transfer the appeal to the Deputy Collector having jurisdiction to entertain the appeal and inform to the parties the date of appearance before the Concerned Deputy Collector. The parties to appear before Collector, North Goa, Panaji on 8.6.2011 at 3.00p.m. The concerned Deputy Collector shall dispose of the appeal in accordance with law.

11 Rule is made absolute in aforesaid terms with no order as to costs.