Case Note & Summary
Background: The petitioners were members of the Managing Committee of the Communidade of Harvalem, elected for the triennium 2018-2021. They held positions as President, Attorney, Treasurer, and their substitutes. The Managing Committee was governed by the Code of Communidade. Two complaints were lodged regarding illegal allotment of plots, leading to earlier proceedings. This Court in Writ Petition No.549 of 2019 directed the Administrator of Communidade to dispose of the complaints after hearing all concerned. The Administrator, after inquiry, submitted a report recommending dismissal of the President and dissolution of the Managing Committee under various provisions of the Code. Based solely on that report, the Government issued the impugned order dated 16.03.2021 dismissing the President and dissolving the Managing Committee and directing the Administrator to manage affairs until a new committee was elected. The petitioners challenged this order, primarily contending that it was passed in violation of Article 70(1) of the Code of Communidade, which requires personal hearing, and that principles of natural justice were breached as no notice or hearing was given to them before the adverse decision. The respondents argued that no further hearing was necessary as the Administrator had already heard the petitioners during the inquiry. The court found that it was undisputed that no personal hearing was afforded to the petitioners before the impugned order. It noted that the order was passed solely on the Administrator's report, and the failure to comply with the mandatory requirement of Article 70(1) rendered the order violative of natural justice. The court’s observations strongly indicated that the order was unsustainable. The judgment extract does not contain the final operative order, but the court’s reasoning emphasized the necessity of personal hearing. The matter was heard finally by consent of parties, and the court issued rule, which was made returnable forthwith, indicating the petition was being disposed of. The precise relief granted is not stated in the available text.
Headnote
A) Constitutional and Administrative Law - Natural Justice - Right to Personal Hearing Before Dissolution of Elected Body - Code of Communidade (Goa, Daman & Diu Legislative Diploma no.2070), Article 70(1) - The Managing Committee was dissolved based on the Administrator's report without giving personal hearing to the members whose dismissal was recommended - The court observed that such action violated Article 70(1) which mandates personal hearing - The impugned order was found to be arbitrary and contrary to the principles of natural justice (Paras 4, 9-11).
Issue of Consideration
Whether the impugned order dated 16.03.2021 dissolving the Managing Committee of the Communidade of Harvalem was passed in violation of the principles of natural justice and the mandate of Article 70(1) of the Code of Communidade, which requires personal hearing to be afforded to the concerned members.
Law Points
- Personal hearing is mandatory under Article 70(1) of Code of Communidade
- failure to afford personal hearing violates principles of natural justice
- orders passed without hearing are arbitrary and non-speaking
- Administrator's recommendation cannot substitute for personal hearing by the Government
Case Details
2021 LawText (BOM) (11) 60
Writ Petition No.196 of 2021 (Filing)
Revati Mohite Dere, M. S. Jawalkar
Rui Gomes Pereira (for petitioners), Devidas J. Pangam, Advocate General with Deep D. Shirodkar, Additional Government Advocate (for respondents 1-3), B. Pacheco (for respondents 4-5)
Shivram S. Malik, Sharad R. Malik, Rajaram J. Malik, Dasharath Surya Malik, Sahadev Surya Malik, Sagar Sagun Malik
State of Goa through Joint Secretary (Revenue), Director of Civil Administration/Collector, Administrator of Communidades North Zone, Mahadev A. Malik, Tulshidas B. Malik
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Nature of Litigation
Writ petition challenging the order of the Government dismissing the President and dissolving the elected Managing Committee of the Communidade of Harvalem.
Remedy Sought
The petitioners sought a writ of mandamus to withdraw and a writ of certiorari to quash the impugned order dated 16.03.2021.
Filing Reason
The impugned order was passed without affording personal hearing as required under Article 70(1) of the Code of Communidade, violating principles of natural justice.
Previous Decisions
Earlier, in Writ Petition No.549 of 2019, this Court had directed the Administrator to dispose of complaints after hearing the Managing Committee members and allottees. The Administrator passed order dated 02.12.2020 recommending dissolution, which was challenged in Communidade Appeals No. 2/2021 and 1/2021 pending before the Administrative Tribunal. On 16.03.2021, the Government passed the impugned order.
Issues
Whether the impugned order dated 16.03.2021 was passed in violation of Article 70(1) of the Code of Communidade, which mandates personal hearing, and whether it violates the principles of natural justice.
Submissions/Arguments
Petitioners: The order is contrary to Article 70(1) and violative of natural justice; no notice of suspension or dismissal was given; the order is non-speaking and arbitrary; the Administrator's recommendation was made without proper hearing.
Respondents (Advocate General): No hearing was required as the Administrator had conducted an inquiry and heard the petitioners before making the recommendation; thus the Government could act on the report without further hearing.
Ratio Decidendi
Article 70(1) of the Code of Communidade requires personal hearing to be afforded to the defendants before passing an order of dismissal or dissolution; non-compliance violates natural justice.
Judgment Excerpts
the respondent No.1 had not complied with the mandate of Article 70(1) of the Code of Communidade ... which contemplates personal hearing to be given to the defendants in the inquiry.
Admittedly, no personal hearing was afforded to the petitioners. The same is also not disputed by the learned Advocate General.
the respondent No.1 has dissolved the Committee vide order dated 16.03.2021 only on the basis of the report submitted by the Administrator.
Procedural History
The Managing Committee of the Communidade of Harvalem was elected for the triennium 2018-2021 with petitioners as office bearers. Complaints regarding illegal allotment of plots were filed by two members, leading to Writ Petition No.549 of 2019. By order dated 16.07.2019, the High Court directed the Administrator to dispose of the complaints after hearing the Managing Committee members and allottees. The Administrator passed order dated 02.12.2020 recommending dismissal of the President and dissolution of the Managing Committee under various articles of the Code of Communidade. Aggrieved, petitioner No.1 and the Communidade filed Communidade Appeals No. 2/2021 and 1/2021 before the Administrative Tribunal, which were pending. On the basis of the Administrator's report, respondent No.1 (Government) passed the impugned order dated 16.03.2021 dismissing the President and dissolving the Managing Committee, directing the Administrator to look after administration until a new committee was elected. The petitioners then filed the present writ petition challenging the said order.
Acts & Sections
- Code of Communidade (Goa, Daman & Diu Legislative Diploma no.2070): Article 70(1), Article 74, Article 75, Article 125(13), Article 153(3), Article 371, Article 372
