Oral Judgment:

1. Heard Mr. Godinho who appears with Mr. Manoj Jalmi for the Petitioner and Mr. Shivan Desai who appears with Ms. Aishwarya Thorat for the Respondents.

2. The Petitioner challenges the following orders by instituting this petition:

                   a) Judgment and order allegedly dated 02.08.2001, passed by the Mamlatdar of Salcete in Case No. MUND/30/90;

                   b) The Deputy Collector’s order dated 28.06.2002 dismissing the appeal against the Mamlatdar’s order dated 02.08.2001;

                   c) Administrative Tribunal’s order dated 04.07.2012, dismissing Petitioner’s Mundkar Revision Application No. 45/2004, questioning the above two orders.

3. The record shows that the Petitioner had filed Special Civil Suit No.141/86 (old) which is now registered as Regular Civil Suit No. 350/2000/C in the Court of the Civil Judge Junior Division at Margao, seeking the eviction of all the Respondents from the suit house and for restoration of the suit property.

4. In the said Civil Suit, the Respondents or their predecessors in title raised a defence that they were the Mundkars in respect of the suit house and, therefore, were entitled to the protection provided by the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (“said Act”).

5. Given the defence raised, an issue of mundkarship was cast and the same was referred to the Mamlatdar of Salcete vide Case No. MUND/30/90 for determining whether Respondents or their predecessors in title were indeed the Mundkars of the suit house.

6. Because of the non-appearance of the Advocate for the Petitioners on two dates, the Mamlatdar of Salcete, by an order which is dated as 02.08.2001, held against the Petitioners by answering the Civil Court’s reference in favour of the Respondents or their predecessors in title. In short, by order of 02.08.2001, the Mamlatdar held that the Respondents or their predecessors in title were the Mundkar in respect of the suit house.

7. The Petitioner appealed the Mamlatdar’s order dated 02.08.2001. As a matter of abundant caution, an application was filed seeking condonation of delay since it was felt that the appeal was instituted 23 days beyond the prescribed period of limitation. By a composite order dated 28.06.2002, the Deputy Collector dismissed the application for condonation of delay and the appeal.

8. The Petitioner then instituted Mundkar Revision Application No.45/2004 before the Administrative Tribunal. This was allowed by the Tribunal by order of 24.12.2010. The Deputy Collector’s order of 28.06.2002 was set aside and the Deputy Collector was directed to decide Petitioner’s application for condonation of delay and only thereafter, to proceed in accordance with law.

9. The Respondents challenged the Tribunal’s judgment and order dated 24.12.2010 before this Court vide Writ Petition No.182/2011. This petition was partially allowed by order of 13.07.2011. This Court, set aside the Tribunal’s order and remanded the matter to the Tribunal to decide the matter in light of the observations made in this Court’s order.

10. Pursuant to the remand, the Tribunal has passed a fresh order dated 04.07.2012, this time, dismissing the Petitioner’s Mundkar Application No.45/2004 thereby, impliedly confirming the Mamlatdar and the Deputy Collector’s orders. Hence, this petition.

11. Mr. Godinho referred to the Roznama placed by the Petitioners on record and submitted that it was inconceivable that the Mamlatdar would make an order of 02.08.2001. He submitted that the order could have been made only after 30.08.2001, which was the date immediately before the order date. He, therefore, submitted that the Petitioner’s appeal before the Deputy Collector was within the prescribed period of limitation and could not have been dismissed simply because the Petitioner, on account of the incorrect date stated in the impugned order had, as a matter of abundant caution, sought for condonation of delay of 23 or 24 days in instituting the appeal.

12. Without prejudice, Mr. Godinho submitted that there was more than sufficient cause shown by the Petitioner to condone the 23-or 24-days delay. Therefore, the refusal to condone such delay was a jurisdictional error or in any event vitiated by the perversity.

13. Mr. Godinho submitted that this was a gross case where the Respondent or their predecessors in title obtained the registration order against a third party and passed therein, was claiming mundkarship in respect of the suit house owned by the Petitioner. He submitted that the Respondent or their predecessors in title even went to the extent of obtaining a purchase certificate based upon the registration obtained against the third party. He submitted that these contentions on merit have not been examined by any authorities seriously. Accordingly, he submitted that this is a fit case where the impugned order should be set aside and a reference made by the Civil Court in the pending suit must be decided afresh by the Mamlatdar after giving due opportunity to all parties.

14. Mr. Desai, learned Counsel for the Respondent submitted that this issue has been pending for the last 40 years. He pointed out that in the meantime, the Respondent or their predecessors in title have not only obtained the registration as a Mundkar in respect of the suit house but also vide order dated 30.08.2002 purchased the suit house under the provisions of the said Act. He pointed out that after the purchase of the suit house by order dated 24.02.2009, the property has also been partitioned out and allotted a separate survey number.

15. Mr. Desai submitted that even the suit in which the reference was made was dismissed for non-prosecution by order dated 22.07.2009. He submits that the suit has now been restored but this indicates the Petitioner’s negligence in prosecuting this matter. He submits that his negligence was continued in the proceedings before the Mamlatdar and the other authorities, and this is evident from the record.

16. Mr. Desai also submitted that there was overwhelming evidence based on which the reference had to be answered in favour of the Respondent or their predecessor in title. He submitted that there was oral as well as documentary evidence upon consideration of which the reference was answered in favour of the Respondent or their predecessor in title. He submitted that at this point of time, this Court, should not exercise its extraordinary jurisdiction and revisit these issues even assuming that there was some confusion about the date and consequent error in deciding the issue of limitation or condonation.

17. Mr Dessai submits that even otherwise, the delay of 23 or 24 days was also not sufficiently explained as was held by the Deputy Collector and confirmed by the Administrative Tribunal. He submitted that the length of the delay is immaterial and what is relevant is the cause shown. He submits that since no cause was shown or in any event no sufficient cause was shown, the two authorities were justified in refusing to condone the delay of 23 or 24 days.

18. The rival contentions now fall for determination.

19. The Petitioner has placed on record the Roznama maintained by the Mamlatdar of Salcete in the reference made by the Civil Court. The dates relevant for deciding the issue raised in this petition would be 21.06.2001, on which date the Respondents were present along with their Advocate but the Petitioners or their Advocate were not present. The Mamlatdar gave the Petitioners an additional opportunity and adjourned the matter to 26.07.2001.

20. On 26.07.2001, again, the Respondents were present along with their Advocates but the Petitioners were absent. On this date, the statement of the Respondents was recorded but the case was closed as the Petitioner or their Advocates were not present. However, the matter was adjourned to 30.08.2001 after giving a chance to the Petitioners to lead their evidence.

21. The Roznama for 30.08.2001 indicates that the Respondents were present. However, the Petitioners, again, chose not to remain present. Therefore, the Petitioners evidence was closed and the matter was posted for final order on 02.08.2001. The Roznama then states that on 02.08.2001, the order was passed and the issue of mundkarship was decided in favour of the Respondents but against the Petitioners.

22. Since the Roznama has clearly recorded that the matter was adjourned from 26.07.2001 to 30.08.2001 and further, the Roznama also recorded that it was only on 30.08.2001, the Petitioner’s evidence was closed and the matter was posted for final arguments, the next date could never have been 02.08.2001. This date had already passed and Mr. Godinho is right in submitting that the date, at the highest could have been some date after 30.08.2001 or even 02.09.2001.

23. Admittedly, the appeal against the order now incorrectly dated as 02.08.2001 but passed possibly on 02.09.2001 was filed on 05.11.2001 before the Deputy Collector. After excluding the period for obtaining the certified copy, this was very much within the limitation period of 60 days provided under the said Act. As such, the appeal could not have been rejected on the ground of bar of limitation. To that extent, the Deputy Collector’s order of 28.06.2002 is vitiated on the basis of error apparent on the face of the record and warrants interference.

24. In any event, considering this confusion of dates and the fact that the delay was of hardly 23 or 24 days, the cause shown by the Petitioner constituted sufficient cause. There was no good reason for the Deputy Collector to reject the application for condonation of delay which was filed as a matter of abundant caution.

25. In the case of N. Balakrishnan vs M. Krishnamurthy((1998) 7 SCC 123), the Hon’ble Supreme Court has explained that in most of the cases involving delay, there is bound to be some lapse on the part of the litigant. However, that by itself is not a good ground to nonsuit such a litigant, unless it is established that the litigant was not acting bona fide or attempted to take some undue advantage of the delay. Further, the Hon’ble Supreme Court has explained that the approach of the higher Court when considering a case where delay has not been condoned must be different from the approach in a case where there is a positive exercise of discretion and the delay is condoned. In the former case, the higher Court must see whether the cause shown was not sufficient or that there were circumstances based upon which the delay ought not to have been condoned.

26. In this case, the cause shown was sufficient and there was no good reason not to condone the delay. The Petitioners may not have been as diligent as they should have been, but there was no malafide. They did not gain anything by the delay. There were genuine confusion regards the order dates. The prejudice, if any to the Respondents could have been compensated with costs. This is yet another reason why the Deputy Collector’s order dated 28.06.2002 deserves to be quashed and set aside.

27. The Deputy Collector could not have addressed the issue on merits after having concluded that the appeal was barred by limitation and that no sufficient cause was shown to condone the delay. The observations on merits made in the Deputy Collector’s order of 28.06.2002 are prima facie without jurisdiction. In any event, the finding on the issue of limitation has impacted these findings. The findings have been quite cursorily rendered. This is yet another reason for setting aside the Deputy Collector’s order of 28.06.2002.

28. The Tribunal, on the first occasion, had in fact set aside the Deputy Collector’s order, but remanded the matter back to the Deputy Collector for a fresh decision. This Court, finding that the Deputy Collector’s order was lacking in clarity, set aside the Tribunals order and directed the Tribunal once again to decide the matter in the light of the observations made. This time, the Tribunal has held that the appeal was barred by limitation and there was no sufficient cause shown. The Tribunal has also upheld the findings on merits even though such findings were prima facie without jurisdiction.

29. For the reasons discussed in the context of the Deputy Collector’s order, even the Tribunal’s order warrants interference. The Tribunal, given the facts and the law, should have interfered with the Deputy Collector’s order.

30. Therefore, the Deputy Collector’s order dated 28.06.2002 and the Tribunal’s order dated 04.07.2012 are hereby set aside and the matter is remanded to the Deputy Collector for deciding the Petitioner’s appeal against the order incorrectly dated as 02.08.2001 on merits.

31. The learned Deputy Collector must now proceed on the basis that this appeal was instituted within the prescribed period of limitation and address only the issue on merits of the appeal. This means that all the contentions of all the parties will have to be considered afresh in this appeal based on the premise that it was instituted within the prescribed period of limitation. The Deputy Collector must decide this appeal as expeditiously as possible and in any event, within six months as indicated hereafter.

32. It is clarified that this Court has made no observations whatsoever on the merits of the order which is incorrectly dated 02.08.2001. This Court has also made no observations on the conduct of the parties before the Mamlatdar or the merits of the Mamlatdar’s order answering the reference in favour of the Respondent herein. All such contentions are explicitly kept open for the decision of the Deputy Collector in the first instance.

33. The above relief is granted to the Petitioner subject to the Petitioner paying costs of Rs.25,000/- to the Respondents within a period of four weeks from the date of uploading of this order. Such costs will have to be deposited in this Court within four weeks of the uploading of this order. After that, the Respondents are permitted to withdraw the same unconditionally.

34. If no costs are deposited within four weeks of the uploading of this order, this petition will be deemed to have been dismissed without further reference to this Court. The Petitioner should give due intimation to the learned Counsel for the Respondent on or before the deposit of these costs.

35. If the costs are indeed paid within the time indicated above, the Petitioners or their Advocates must appear before the Deputy Collector in the restored case, i.e. Case No.SDO/SAL/MUND/APPL/64/2001 on or before 30.01.2026, and file an authenticated copy of this order before the Deputy Collector. The Petitioner must also file proof of deposit of costs before the Deputy Collector.

36. The Deputy Collector must then issue notice to the Respondents and upon service of notice, dispose of the matter now remanded, within six months.

37. The rule is made absolute in the above terms.

38. All concerned must act on an authenticated copy of this order.