Case Note & Summary
The petitioner, Mr Ramnath alias Devanand R. Naik, filed a writ petition challenging the order dated 02.11.2021 passed by the Administrator of Comunidades, North Zone, Mapusa, Goa, discharging the notices issued on his complaints dated 25.01.2017 and 30.01.2017 regarding alleged encroachment by the fifth respondent, Mr Rajesh Kamlakant Joshi, on Comunidade property admeasuring about 70 sq. mtrs., partly in Survey No.56/1 of Village Pilerne and partly in Survey No.389/1 of Village Socorro. Initially, the Administrator had allowed the complaints by a detailed order dated 13.06.2018, but the fifth respondent challenged that order in Writ Petition No.1075/2019, which was allowed by the High Court on 04.07.2019, setting aside the Administrator's order and remanding the matter for fresh consideration in light of the observations made. On remand, the Administrator passed the impugned order discharging the notices, effectively dismissing the complaints. The petitioner contended that the impugned order was perverse and that the Administrator had misapplied the law by holding that the provisions of Chapters V and VI of the Code of Comunidades, 1961 were not attracted merely because the encroached area was only 70 sq. mtrs. The respondents supported the impugned order. The High Court found that the impugned order suffered from perversity and non-application of mind, as the Administrator had failed to consider the merits of the complaint and had discharged the notices on hyper-technical grounds. The Court set aside the impugned order and remanded the matter to the Administrator for fresh consideration on merits, directing that all parties be given a fair opportunity of hearing and that the matter be decided expeditiously, preferably within three months.
Headnote
A) Comunidade Property - Encroachment - Administrator's Jurisdiction - The Administrator of Comunidades has jurisdiction to deal with complaints regarding encroachment on Comunidade property under the relevant provisions of the Code of Comunidades, 1961 - The Administrator must consider the merits of the complaint and not discharge notices on hyper-technical grounds - Held that the impugned order discharging notices was perverse and set aside (Paras 3-5, 10-12). B) Remand - Compliance with Court Directions - On remand, the Administrator must comply with the directions of the High Court and decide the matter afresh on merits, after giving due opportunity of hearing to all parties - The Administrator cannot ignore the observations made by the Court in the earlier writ petition - Held that the matter is remanded for fresh consideration (Paras 4-5, 13-14).
Issue of Consideration
Whether the Administrator of Comunidades was justified in discharging the notices issued on the petitioner's complaints regarding alleged encroachment by the fifth respondent on Comunidade property, and whether the impugned order suffers from perversity and non-application of mind.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 02.11.2021, and remanded the matter to the Administrator of Comunidades for fresh consideration on merits, with a direction to decide the complaints expeditiously, preferably within three months, after giving due opportunity of hearing to all parties.
Law Points
- Comunidade property
- encroachment
- Administrator's jurisdiction
- remand
- perversity
- natural justice
