Bombay High Court
Agnelo H A Andrade vs The Additional Collector And 24 Ors on 8 August, 2024
2024:BHC-GOA:1293
2024:BHC-GOA:1293 13 WP-706-2023 J.DOC
Meena
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.706 OF 2023
Mr. Agnelo H A Andrade ... PETITIONER
s/o late Valeriano F.X. Andrade
57 years old, Indian National
R/o H/No. 2/b Per-Seraulim
South Goa
v/s
1. The Additional Collector
Mathany Saldhana
Administrative Complex
Margao-South Goa.
2. The Mamlatdar of Salcete
Taluka, Mathany Saldhana
Administrative Complex
Margao-South Goa
3. Mrs. Edviges Andrade
4. Mrs. Maria Severina Victoria Andrade
and her Husband
5. Mr. Minguel Socrates Falcao
6. Mr. Jose Antonio Andrade and his wife.
7. Mrs. Maria do Ceu Angelina Henriqueta
Andrade
8. Mr. Eusebio Socorro Andrade and his
wife;
9. Mrs. Melinda Sara Sales
10. Mrs. Karen Andrade
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13 WP-706-2023 J.DOC
11. Mr. Francisco Herdonio Andrade and
his wife;
12. Mrs. Judith Barreto
13. Mr. LuizaCarmina Andrade and his
wife;
14. Mrs. Pamella Rodrigues
15. Mrs. Nazreen S. D'Mello
16. Mr. Peter Manuel D'Mello
17. Mrs. Juliet Bonafacio Vaz
18. Mr. Bonafacio Vaz
19. Mrs. Sita Eugene Gomes
20. Mr. David Caetano Gomes
21. Mrs. Lucia Rodrigues
22. Mr. Richard Rodrigues
23. Mr. Agnelo Cruz Andrade
24. Mr. Maurice Jose Andrade
25. Mrs. Fatima Andrade
All major in age
All Indian Nationals
All residing at Zaino,
Velim Salcete-Goa ...RESPONDENTS
Mr. Shane Gomes Pereira, Advocate for the Petitioner.
Mr. Geetesh Shetye, Additional Government Advocate for
Respondent Nos.1 and 2.
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13 WP-706-2023 J.DOC
CORAM: BHARAT P. DESHPANDE, J
DATED: 8th August, 2024.
ORAL JUDGMENT:
1. Rule. Rule is made returnable forthwith.
2. The matter is taken up for final disposal at the admission
stage itself as notice to the private Respondents is not necessary for
the reasons recorded below.
3. Mr. Shetye, learned Additional Government Advocate
appears for Respondent Nos.1 and 2.
4. The present proceedings are filed challenging the order
passed by the Collector/District Magistrate on 22/11/2022 thereby
communicating the Petitioner of its appeal filed on 15/11/2022
against the order dated 30/06/2022 stands rejected as not
maintainable.
5. Mr. Pereira, leaned Counsel for the Petitioner submits that he
being aggrieved by the order passed by the Deputy Collector dated
30/06/2022 whereby an appeal filed against the decision of the
13 WP-706-2023 J.DOC
Mamlatdar in mutation case, the petitioners approached the
Collector by filing a second appeal.
6. Mr. Pereira submits that the said Second Appeal is
maintainable under Section 188(2) of the Land Revenue Code
against the order passed by the Deputy Collector and the time
period for filing such appeal is 60days as provided under Section
189.
7. Mr. Pereira submits that the Petitioner admittedly filed the
appeal beyond the period of limitation but along with the
application for condonation of delay as provided under Section 195
of the said Code.
8. Mr. Pereira would submit that the Petitioner was not notified
or given an opportunity to argue the application for condonation of
delay and the same was rejected by the impugned order dated
22/11/2022 only on the ground that the appeal is filed beyond
60days and such huge delay is not justified.
9. The impugned order passed by the Additional Collector,
South Goa District Margao reads thus:
13 WP-706-2023 J.DOC
OFFICE OF THE COLLECTER & DISTRICT
MAGISTRATE, SOUTH GOA DISTRICT, MARGAO GOA,
Additional Collector-1 Section
Matanhy Saldanha Administrative Complex, Margan-Goa.
email: [email protected]
Phone No:0832-2794423 Fax No: 0832-2794402
No.AC-I/LRC/Misc/1/2022 114 Date: 22/11/2022
To,
Mr. Agnelo H A Andrade,
S/o. Valeriano F.X. Andrade,
57 yrs, Indian National,
R/o. H.No.2/b, Per-Seraulim, Salcete Goa.
Ref:- Your Second Mutation Appeal dated 15/11/2022.
Sir,
With reference to your Appeal Application dated
15/11/2022 against the Order dated 30/06/2022 passed
by the Dy. Collector & SDO of Salcete, Margao Goa in case
No. SDO-II/SAL/LRC/MUT-APPL/03/2017/951, received
in this office on 15/11/2022, following
discrepancy/observation is noticed in the said appeal:
(i) As per the Provision of Section 189 of the Goa Land
Revenue Code, 1968 the limitation period prescribed is 60
days. Whereas, in the instant case the same is filed after
substantial time period, since the impugned Order is
dated 30/06/2022 and the date of receipt of the said
appeal in this office is 15/11/2022 and such a huge delay
cannot be justified.
In the light of above, your appeal application
cannot be processed and as such the same is summarily
rejected in terms of Rule 3 of the Goa Land Revenue
13 WP-706-2023 J.DOC
(Appeals, Revision and Review) Rules, 1969 and Section
188/189 of the Goa Land Revenue Code, 1968, being not
maintainable.
Your faithfully
Sd/-
(Srinet Kothwale)
Additional Collector-1,
South Goa District Margao Goa.
10. The Petitioner preferred an appeal under Section 188(2) (A)
of the Code whereby challenging the order passed by the Deputy
Collector while deciding the First Appeal. Since the appeal was filed
late and an application for condonation of delay was also annexed
to the Second Appeal disclosing reasons for the delay of 60 days.
The said application appending with an affidavit of the Petitioner
thereby discloses reasons for filing the appeal late.
11. Chapter XII of the Code deals with Appeals, Revision and
Review.
12. Section 188(2) specifically provides a Second Appeal against
the order passed by the Sub-Divisional Officer, before the
Collector. It is no doubt true that the period for filing such a Second
Appeal is 60days from the date of order as provided under Section
189, there is a provision for condonation of delay as provided under
Section 195, which reads thus:
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195. Application of limitation Act, 1963.--
Provisions of sections 4, 5, 12 and 14 of the Limitation Act,
1963, shall apply to the filing of appeals or applications
for revision and review under this Act.
13. The above provision clearly provides that Section 5 of the
Limitation Act shall apply to the filing of appeals, applications for
revision and review under the said Act. Thus, it is clear that even
Section 5 of the Limitation Act is made applicable for the filing of
appeals which include Second Appeal under Section 188(2) of the
said Code.
14. Once such an application is filed, the natural justice demand
of giving hearing to the Applicant justifying that delay occurred in
filing of the appeal. Such opportunity is by way of giving hearing in
the matter or by allowing the parties to file written submissions.
15. The matter in hand clearly goes to show that though the
Second Appeal along with the Application for condonation of delay
was filed and presented somewhere in November,2022, there is no
record of giving any opportunity to the Petitioner of hearing. The
impugned order also nowhere shows that the concerned authority
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afforded an opportunity to the Petitioner to argue the matter
justifying the delay in filing the appeal. It further shows that
without such opportunity, an order is passed on 22/11/2022
holding that such delay is not justified.
16. The approach of the learned Second Appellate Authority is
clearly against the principles of natural justice and fair play.
Without giving any opportunity of hearing, the application ought
not to have been dismissed.
17. The concerned authority is clearly acting as a quasi judicial
authority and specific power is given to hear the Second Appeal
under the Code.
18. Such power needs to be exercised by applying or considering
the principles of natural justice.
19. Having said so, the only option is to quash and set aside the
impugned order dated 22/11/2022 by restoring the condonation of
delay application along with the Second Appeal and by remanding
the matter back to the authority with directions to give an
opportunity to the Petitioner of hearing and thereafter to decide
the delay application in accordance with the law.
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20. Accordingly, the impugned order is quashed and set aside.
An application for condonation of delay along with the Second
Appeal filed by the Petitioner is restored to the file of the learned
Collector, South Goa with directions to give an opportunity of
hearing to the Petitioner and thereafter to decide the application
for condonation of delay in accordance of law.
21. The parties shall appear before the Collector on 22/08/2024
at 3.00pm.
22. The Collector to give an opportunity to the Petitioner of
hearing on the delay application and then decide it in accordance
with the law as early as possible.
23. Rule is made absolute in the above terms.
BHARAT P. DESHPANDE, J.
