Case Note & Summary
The writ petition before the High Court of Bombay at Goa arose from a dispute concerning alleged illegal construction in Cuncolim, Goa. The petitioner, a sociedade (an agricultural association) through its President, and respondent no.3 Immaculada Fernandes were joint complainants against original respondent no.2 Menino Xavier Fernandes regarding unauthorized construction. The Chief Officer of the Cuncolim Municipal Council had initially issued a demolition notice dated 4/9/2013. Menino challenged that notice by filing Municipal Appeal No.121/2013 before the Goa Municipal Tribunal at Panaji. By judgment and order dated 18/8/2017, the Tribunal quashed the demolition order and remanded the matter to the Chief Officer for a fresh decision. The Tribunal directed the Chief Officer to consider Menino's reply dated 15.5.2013, give a hearing to Menino, the petitioner society, and Immaculada, examine whether the structure could be regularized, and pass a reasoned order within three months. On remand, however, on 31/1/2018, Immaculada applied to delete the petitioner society's name as a co-complainant. On the same day, Immaculada and Menino filed consent terms before the Chief Officer. The consent terms recorded that Immaculada would not pursue the complaint of illegal construction, and they also included unrelated issues over which the Chief Officer had no jurisdiction. The Chief Officer allowed Immaculada's application, deleted the petitioner's name, accepted the consent terms, rejected the complaint, sent the matter to the Technical Section for regularization of the structure, and closed the proceedings. The petitioner society challenged this order dated 31/1/2018 by way of the present writ petition. The High Court found that the record unequivocally showed that the petitioner and Immaculada were joint complainants. Therefore, Immaculada had no right or authority to seek deletion of the petitioner's name; if she did not wish to pursue the complaint, she could abandon her own pursuit or get herself dropped, but she could not delete another co-complainant. More importantly, the Chief Officer completely exceeded jurisdiction by allowing Immaculada's application and deleting the petitioner's name. The Chief Officer also had no authority to accept consent terms between Immaculada and Menino and dispose of the complaint about illegal construction on that basis. The Court observed that the Chief Officer had virtually abdicated his duties by choosing a convenient but ultra vires mode for disposing of the complaint. The Court rejected the respondents' argument that certain misstatements by the petitioner—such as describing Menino as a trespasser rather than a lessee, or wrongly attributing the deletion application to Menino—could condone the Chief Officer's patently illegal actions. Accordingly, the High Court set aside the Chief Officer's order dated 31/01/2018. Since the incumbent who made the impugned order had already been transferred, the Court remanded the matter to the present Chief Officer of the Cuncolim Municipal Council. The present Chief Officer was directed to decide whether there was merit in the petitioner's complaint about the alleged illegal construction by Menino and pass a reasoned order on the petitioner's complaint. The Chief Officer had to grant the petitioner and Menino's legal representatives an opportunity of hearing; if Immaculada wished to be heard, she could also be given an opportunity. The Court further directed that the Chief Officer should not accept any consent terms or entertain any applications for withdrawal of complaints until deciding whether illegal construction had been put up.
Headnote
A) Municipal Law - Illegal Construction Complaint - Jurisdiction of Chief Officer - Not mentioned - The Chief Officer exceeded jurisdiction by permitting one co-complainant to delete another co-complainant and by disposing of an illegal construction complaint on the basis of consent terms between complainants and the alleged violator. The Tribunal's remand had specifically required hearing all parties and examining the legality of construction, but the Chief Officer ignored this. Held that such actions were ex-facie perverse and without jurisdiction; the order was set aside (Paras 8-15). B) Municipal Law - Illegal Construction Complaint - Duty to Decide on Merits - Not mentioned - On remand, the Chief Officer must determine whether illegal construction was put up and pass a reasoned order on the petitioner's complaint, affording hearing to the petitioner and the legal representatives of the original respondent, and optionally to the third respondent. The Chief Officer should not accept consent terms or entertain withdrawal applications until determining the illegality of construction. Held that the incumbent who made the impugned order had been transferred, and the matter was remanded to the present Chief Officer (Paras 16-17).
Issue of Consideration
Whether the Chief Officer's order dated 31/01/2018 dismissing the illegal construction complaint by accepting consent terms and deleting the petitioner as co-complainant was without jurisdiction, perverse, and liable to be set aside; whether the matter required fresh decision on merits.
Final Decision
The High Court allowed the writ petition. The Chief Officer's order dated 31/01/2018 was set aside. The matter was remanded to the present Chief Officer of the Cuncolim Municipal Council with a direction to decide whether there was merit in the petitioner's complaint about the alleged illegal construction by Menino and to pass a reasoned order on the petitioner's complaint. The Chief Officer was directed to grant the petitioner and Menino's legal representatives an opportunity of hearing; if Immaculada wished to be heard, she could be given an opportunity. The Chief Officer was further directed not to accept any consent terms or entertain any applications for withdrawal of complaints until determining whether illegal construction had been put up.
Law Points
- Chief Officer cannot dispose of illegal construction complaint by consent terms
- cannot delete co-complainant without jurisdiction
- must hear all parties and examine legality
- consent terms irrelevant to public duty
- remand for reasoned decision
