-1- IN THE HIGH COURT OF BOMBAY AT GOA PANAJI WRIT PETITION NO. 597 of 2007 1. Mrs. Cecilia Maria Fernandes 2. Mrs. Teresa Judith Fernandes, Both residing at Flat No.4A, Gomidhi, Opposite Bandra Medical Stores, represented by their Power of Attorney, Shri Agnelo Fernandes, resident of Khorlim, Mapusa, Bardez-Goa. (Registered Addresses) ...... Petitioners V e r s u s Mrs. Isabela Soares, residing at Sales Waddo, Parra, Mapusa, Bardez-Goa. (Registered Addresses) ...... Respondent Mr. D. J. Pangam, Advocate for the Petitioners. Mr. V. A. Lawande, Advocate for the Respondent. CORAM : S. C. DHARMADHIKARI DATE : 12 th September, 2008. ORAL JUDGMENT Rule. 2. Respondent waives service. By consent, rule made returnable forthwith. 3. The petitioners are the original applicants before the Administrative -2- Tribunal, Goa. They filed two Revision Applications being Mundkar Revision Application No. 60/1997 and 61/1997. The two Revision Applications were directed against a common Order dated 24.04.1997 of the Dy. Collector, North Goa, Panaji, in Appeals no. 201/87 and 7/1990. 4. It is not disputed before me that petitioners, original applicants, approached the Collector aggrieved by an Order dated 30.09.1987 passed by the Joint Mamlatdar of Bardez in case no.201/1987 and 7/1990. 5. That Order was made on an application for restoration before the Mamlatdar. By restoration, what the applicants, petitioners before me, sought was that an Exparte Order made by the Joint Mamlatdar be set aside and the main application be restored to his file. That application was rejected by the Joint Mamlatdar and aggrieved by that Order, Appeal no. 201/87 was preferred on 07.12.1987. In the meanwhile, pursuant to the Order passed by the Joint Mamlatdar, respondent initiated proceedings for purchase of the property in question and two orders were made on that application which also came to be assailed by the petitioners by filing an appeal being Appeal no. 7/1990. 6. Both appeals were disposed off by the Collector by common Order dated 24.04.1997, which common order was impugned in revision before the Administrative Tribunal. The revision having been dismissed by the Tribunal again by a common Order dated 13.02.2007, this petition under Article 227 of the Constitution of India is preferred. -3- 7. After the matter was argued for sometime, my attention was invited by Shri Pangam, appearing for the petitioners, to the roznama and to other documents evidencing, according to him, the fact that the original opponent Martha had once appeared before the Mamlatdar and later on expired. The heir and legal representative of Martha, according to Shri Pangam, is erroneously brought on record and he having failed to attend the proceedings, the Exparte Order was made. In any event, assuming without admitting that the heir of Martha was brought on record, the Advocate engaged by him did not remain present to pursue the proceedings and that is how the heir suffered an adverse Order. In such circumstances, the Mamlatdar should have allowed the application for setting aside the Exparte Order preferred by the petitioners who are residing permanently at Bombay and thereafter proceeded with the main matter in accordance with law. That having not been done, the petitioners approached the Collector and before the Collector as well, the Advocate could not remain present but filed his own application to set aside the Exparte Order dated 20.04.1992 passed by the Collector on which application, the respondent, through her Advocate, endorsed her No Objection. Yet, the Collector proceeded to dismiss the restoration application. The Collector did not give any opportunity thus to the parties. Even another application for restoration of the appeal made on 22.11.1993 met with the same fate. In such circumstances, the Tribunal should have interfered in its revisional jurisdiction in the interest of justice. 8. Mr. Lawande, on the other hand, contended that this is not a fit case to interfere under Article 227 of the Constitution of India as the conduct of the petitioners and their Advocate was such that the Collector was not expected to wait indefinitely. The Collector was right in passing Orders refusing to restore the appeal -4- and such an Order passed by the Collector which dismissed the appeals of the petitioners requires no interference in the supervisory jurisdiction of this Court which is, in any event, discretionary and equitable. 9. In my view, the petitioners deserve a limited protection. They had preferred two appeals before the Collector. Appeal no. 201/87 was filed by the petitioners to challenge the Order of the Mamlatdar of Bardez at Mapusa dated 30.09.1987. That Order dismisses an application dated 13.01.1987. That application was preferred before the Mamlatdar seeking quashing and setting aside of an Exparte Order passed by him on 24.12.1986. However, the Mamlatdar dismisses that application on 30.09.1987 and aggrieved by the Order passed by the Mamlatdar, Appeal no. 201/87 was preferred before the Collector of Goa, North, Panaji. That appeal was not allowed to be pursued on merits is the grievance because the same was dismissed third time by the Collector and applications for restoration have also failed. The revisional application to the revision to restore the appeal has also failed before the Tribunal. 10. In my view, the petitioners have clarified that they have not challenged the Order of the Collector and the Tribunal in so far as dismissal of their appeals and revisions being Appeal no. 7/1990 and 61/1997. Therefore, the Order passed by the Collector in the Appeal no.7/1990 and by the Tribunal in Mundkar Revision Application No. 61/1997 remains unchallenged and is not the subject matter of this petition. 11. The Tribunal instead of perusing the entire record and allowing the -5- parties to demonstrate as to what is the sufficient cause made out, was largely influenced by the fact that the petitioners' Advocate's conduct binds them. The matter has proceeded on the basis on some averments made in the restoration application and the conduct of the Advocate in not attending the proceedings before the Collector. However, the Tribunal has failed to note that when an affidavit was filed by the Advocate seeking quashing of an Exparte Order of the Collector dated 20.04.1992 on that application of 19.05.1992, the respondent before me, had through her Advocate, granted her No Objection on 08.04.93. Atleast to that limited extent, the petitioners deserve a proper chance to satisfy the Collector with regard to the correctness and validity of the Mamlatdar's Order dated 24.12.1986 and rejection of their application by the Mamlatdar on 30.09.1987. The Collector should have granted that opportunity when the Advocate had filed his personal affidavit and when the respondent before me had not opposed the restoration application and hearing of the appeal on merits. 12. It is only for this limited purpose and not to deprive the petitioners/litigants of a chance to pursue their appeal no. 201/87 on merits, I propose to quash and set aside the Tribunal's Order dated 13.02.2007 and Collectors Order dated 20.04.1992. As a result, Appeal no. 201/87 shall stand restored to the file of Collector, North Goa, Panaji, for decision afresh in accordance with law. The appeal be disposed off by the Collector after hearing both sides and uninfluenced by his earlier Order provided the petitioners pays costs to the respondent quantified at Rs.10,000/-. The costs to be condition precedent and if paid to the respondent and proof is produced before the Collector, he should take up the appeal for disposal in accordance with law and as expeditiously as possible -6- within a period of two months from the date of appearance. Needless to state, if the petitioners do not co-operate in the early disposal and seek unnecessary adjournments, the Collector will be justified in dismissing the appeal without affording any opportunity to them to argue it on merits. 13. Writ Petition is disposed off in the above terms. Rule made absolute accordingly. No costs in the Petition. S. C. DHARMADHIKARI, J. arp/*