No Acts & Articles mentioned in this case
WP-1362/2021 dt 26/7/2021
Santosh
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.1362 OF 2021 (filing)
1. Sanquelim Municipal Council,
Through its Chairperson,
Raya Vinayak Parsekar
Aged 31 years, s/o Vinayak Parsekar,
Indian National, r/o House No.5,
New wada, Gokul wadi, Sanquelim, Goa.
2. Dharmesh Prabhudas Saglani,
Aged 45 years, s/o late Prabhudas Saglani,
Indian National, r/o H. No. 850,
Gokhulwadi, Sanquelim, Goa.
3. Kunda Laxmikant Madkar
Aged 47 years, w/o Laxmikant Madkar,
Indian National, r/o House No. 519,
Dabel wada, Harvalem, Sanquelim, Goa.
4. Jyoti Praveen Blaggan
Aged 55 years, w/o Praveen Blaggan,
Indian National, r/o House No. 12/4,
Gokul wadi, Sanquelim, Goa.
5. Ansira Riyas Khan
Aged 32 years, w/o Riyas Khan,
Indian National, r/o House No. 100/1,
Dattawadi, Sanquelim, Goa.
6. Rajesh Vishram Sawal
Aged 43 years, s/o Vishram Sawal,
Indian National, r/o House No. 1312,
Virdi, Sanquelim, Goa.
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7. Rajendra Ameshkar,
Aged 53 years, s/o Ramesh Ameshkar
Indian, national,
r/o House No. 92, Maulingtad,
Sanquelim, Goa. ... Petitioners
Versus
1. State of Goa, through the
Chief Secretary, Government of Goa,
With office at Secretariat, Porvorim, Goa.
2. The Director of Municipal Administration,
With office at 6
th
Floor, Shramashakti Bhavan,
Patto-Plaza, Panaji, Goa 403001.
3. The Chief Officer,
Sanquelim Municipal Council,
Municipal Building,
Sanquelim, Goa. ... Respondents.
Mr. J.A. Lobo, Advocate for the Petitioners.
Mr. D.J. Pangam, Advocate General with Mr. Deep Shirodkar, Addl.
Govt. Advocate for Respondents No.1 and 2
Mr. Kapil Kerkar, Advocate for Respondent No.3.
Coram : M.S. Sonak &
Smt. M.S. Jawalkar, JJ.
Reserved on: 22
nd
July 2021.
Pronounced on : 26
th
July 2021.
JUDGMENT : (Per M.S. Sonak, J.)
Heard Mr. Lobo for the Petitioners, Mr. D.J. Pangam, the
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learned Advocate General who appears along with Mr. Deep
Shirodkar, Additional Govt. Advocate for Respondents No.1 and
2 and Mr. Kapil Kerkar for Respondent No.3.
2. Rule. The Rule is made returnable forthwith with the
consent of and at the request of the learned Counsel for the
parties.
3. Arguments were heard in this matter on 22
nd
July 2021
and the statements made by the learned Advocate General and the
learned Counsel for Respondent No.3 were recorded in the order
made on the very date, which read as follows :
“1. The matter is reserved for orders.
2.We record the statement of Mr. Kerkar, the learned
Counsel appearing on behalf of the Chief Officer, Shri
Deepak Vaigankar, that the Chief Officer will within one
week from today withdraw his order bearing reference
No.SMC/2021-22/223 dated 05.05.2021 which is
referred at page 65 of the paperbook.
3.Further, we record the statement of Mr. Kerkar based
on instructions of the said Chief Officer that he will
comply with the resolution No.11 passed in the matter
held on 07.05.2021, referred to in paragraph 15 of his
affidavit, within one week from today. These statements
have been made by Mr. Kerkar in the presence of Mr.
Deepak Vaigankar, the Chief Officer, who is present in his
chamber. These statements are accepted as undertaking to
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this Court.
4.Besides, the learned Advocate General has also stated
that hereafter, the Chief Officer will attend the office at
Sanquelim Municipal Council on all working days in the
afternoon session, i.e. from 2:30p.m. to 5:30 p.m..
5.Mr. Vaigankar, the Chief Officer also confirms that he
will attend his office at the Sanquelim Municipal Council
on all working days in the afternoon session, i.e. from 2:30
p.m. to 5:30 p.m. punctually.
6.The learned Advocate General has also made a
statement that the Director of Municipal will dispose of
Case No. 10/798/2020-21/DMC/Councillor/444 within a
period of fifteen days from today, by the compliance of
principles of natural justice. The Director of Municipal
Administration is now directed to act accordingly.
7. The petitioners are directed to place on record the full
text of resolution dated 07.05.2021 by tomorrow. So also,
the Chief Officer is directed to place on record the circular
dated 09.05.2000 concerning the powers of the Chief
Officer vis a vis Chairperson of the Municipal Councils.
In fact, the Chief Officer should place on record the
legible copy of circular dated 10.05.2000 as well.”
4. This Petition has been instituted by the Sanquelim
Municipal Council (SMC) and 7, out of its 13 Councillors. The
Council and the majority of the councilors complain that there is
no full-time Chief Officer and further, the Chief Officer, who is
presently appointed, refuses to follow the mandate of Section 74
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of the Goa Municipalities Act, 1968 (said Act) in the matter of
implementation of the resolutions of the Council. Based on the
various allegations set out in the petition, the Petitioners pray that
the State be directed to appoint a full-time Chief Officer, that
such Chief Officer follows the mandate of Section 74 of the Goa
Municipalities Act (said Act ) and the proceedings
being Case
No.10/798/2020-21/DMA/Councilors/135 be disposed of by the
Director of Urban Development ( Director ) in a time-bound
manner.
5. The Petitioners have pleaded that the ruling faction of the
SMC is not supported by the ruling party in the State
Government and, therefore, through the offices of the Chief
Officer and the Director of Urban Development/Municipal
Administration hurdles and hindrances are created in the day-to-
day functioning of the SMC. The Petitioners have pleaded that
they had to institute Writ Petition No.8/2021, seeking a direction
to hold elections to Ward No.IX, which was being delayed.
Thereafter, the Petitioners had to institute Writ Petition
No.213/2021 since, the statutory authorities were delaying the
conduct of the meeting to consider the No-Confidence Motion
against the earlier Chairperson, who was holding on to the office
despite losing the support of the majority of the Councillors. The
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Petitioners have placed on record the Judgment and Order dated
9/4/2021 passed in Writ Petition No.213/2021 in support of their
averments.
6. The Petitioners have pleaded that the Petitioners were
compelled to institute Writ Petitions No.1055/2021, 1074/2021,
and 1177/2021, complaining about the misuse of State machinery
and statutory powers to prevent the councilors from attending the
meeting to consider the motion of no-confidence against the
earlier Chairperson. The Petitioners have relied upon orders dated
15/4/2021, 16/4/2021, and 6/5/2021 made in the said Petitions
by this Court.
7. The Petitioners have pleaded that in the meeting of the
SMC held on 7/5/2021, several resolutions were passed. In terms
of Section 74 of the said Act, the Chief Officer is mandated to
take steps to give effect to all the decisions or resolutions of the
Council. Despite this statutory provision, the Chief Officer, only
to hinder the functioning of the SMC, has taken no steps to give
effect to all the decisions or the resolutions of the SMC. The
Petitioners have relied on a Circular dated 10/5/2000, issued by
the Secretary (Urban Development) on the subject of powers of
the Chief Officer
vis-a-vis the Chairperson of a Municipal
Council and contended that the Chief Officer, in the present case,
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has acted in breach of the statutory provisions and the directions
contained in this circular.
8. The Petitioners have pleaded that by a representation dated
21/5/2021, addressed to the Director of Urban Development, the
Petitioners complained about non-execution of the resolutions of
the SMC and sought directions to the Chief Officer to comply
with the resolutions in their letter and spirit. Mr. Lobo submitted
that even the Director is only interested in delaying proceedings
to see that the council does not smoothly function.
9. The Petitioners have contended that the Chief Officer,
issued an order bearing reference No.SMC/2021-22/223 dated
5.5.2021 requiring all the staff of the SMC to obtain proper
noting/consent of the Chief Officer before presenting any file/files
to the Chairperson/Vice-Chairperson/Councillor and in case,
there is any need to forward any file to any authority/section, the
same shall be routed through the Chief Officer. The Petitioners
have contended that no files can be accessed by the Chairperson
or the Councillors due to this order dated 5/5/2021 and further,
the Chief Officer is rarely present at the SMC for the files to be
routed through him. The Petitioners have contended that the
order dated 5/5/2021 has no statutory basis and the Chief Officer
has clearly acted in excess of the power vested in him under the
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said Act.
10. The Petitioners have also pleaded that the Director of
Urban Development has entertained Case No.10/798/2020-
21/DMA/ Councillor/444, instituted by some of the Councillors,
who are in minority and is now not disposing of the proceedings
after making some vague and unreasoned order. The Petitioners
have pleaded that all this is a concerted ploy to hinder the
functioning of the SMC only because the ruling faction at the
SMC is not aligning with the ruling faction in the State
administration.
11. The Director of Municipal Administration has filed an
affidavit on 1
st
July 2021, denying the allegations in the Petition.
In the context of the proceedings pending before the Director, the
Director has not clarified whether the notice dated 21/5/2021
amounts to any stay on the implementation of certain resolutions
taken on 7/5/2021 or not. The Director has, however, stated that
he will dispose of the proceedings before him expeditiously. As
noted earlier, even the learned Advocate General has made a
statement that the Director of Urban Development will dispose of
the proceeding in Case No.10/798/2020-21/DMA/
Councillor/444 within 15 days from 22.07.2021.
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12. Mr. Deepak Vaigankar, the Chief Officer and Respondent
No.3 has also filed an affidavit in this matter. He has also denied
all the allegations in the Petition. He has submitted that certain
specified resolutions were taken at the meeting dated 7/5/2021
were stayed by the Director. He has stated that in so far as
Resolution No.11 is concerned, he has not implemented the same
on account of the pandemic situation and in the exercise of
powers vested in him under Section 74(ii) of the said Act. He has
pleaded that the Petitioners are in habit of making false allegations
against the Petitioners in order to pressurize the Chief Officers
and dominate them, so as to succumb to their illegal demands and
that this Petition has been filed prematurely by misinterpreting
the provisions of the said Act.
13. The Chief Officer has also pleaded that he is available in
the SMC every Wednesday and Friday from 2.00 p.m. to 6.00
p.m. He has also pleaded that no files are kept pending by him
and that the Chief Officer is not concerned with any ruling
faction or otherwise and that he is concerned only about the
duties entrusted to him under the said Act. He also pleaded that
the Petitioners have ‘
misconceived’ the provisions of Section 74 of
the said Act. He has made a categorical averment that he has
implemented all the resolutions, except the one mentioned in
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paragraph 15 of the affidavit. He has stated that he has adhered to
the procedure prescribed in circulars issued by the Director of
Municipal Administration and has followed the same in its letter
and spirit.
14. The rival contentions now fall for our determination.
15. From the orders made in several Petitions instituted by the
Petitioners and referred to above, the following position emerges :
(a) The SMC comprises in all 13 Councillors;
(b) The earlier Chairperson had the support of six councilors
including Shri Damodar Ghadi, who expired on 21/11/2020;
(c) Since the State Government was taking no steps to hold
bye-elections and, further since the Chairperson who, according
to the Petitioners, had already lost the majority, was continuing to
cling to office, the Petitioners instituted Writ Petition No.8/2021,
seeking directions for holding bye-elections, expeditiously;
(d) Though the Councillor Damodar Ghadi expired on
21/11/2020, bye-elections were held only on 20/3/2021. In the
meanwhile, the Chairperson, who according to the Petitioners,
had lost majority support, continued to cling to power despite the
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loss of majority support;
(e) On 18/3/2021, the Petitioners requisitioned the Director
to convene a special meeting to consider a No-Confidence
Motion against the earlier Chairperson; The Director failed to fix
this crucial meeting at some early date, thereby enabling the
earlier Chairperson to cling to power despite having lost majority.
(f) Faced with this unreasonable delay even in holding a
meeting to consider the Motion of No-Confidence, the
Petitioners had to institute Writ Petition No.213/2021. In the
said Petition, the Petitioners had pleaded that the Councillor, who
was elected on 22/3/2021, was also their supporter and
consequently, there was no doubt that the earlier Chairperson had
lost the support of the majority.
(g) This Court, by its Judgment and Order dated 9/4/2021,
accepted the case of the Petitioners and directed holding of the
meeting to consider the Motion of No-Confidence on 16/4/2021;
(h) Since, an attempt was made to disqualify one of the
Councillors on the eve of the meeting scheduled on 16/4/2021,
some of the Petitioners were forced to approach this Court by
instituting Writ Petition No.1055/2021 (filing). On 15/4/2021,
this Court stayed the proceedings for disqualification of the
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Petitioner therein.
(i) Undeterred, yet another attempt was made to disqualify
another councilor barely hours before the crucial meeting. Some
of the Petitioners were again forced to institute Writ Petition
No.1074/2021 (filing) and request that the same be taken up
urgently on 16/4/2021 since the meeting was scheduled in the
afternoon session i.e. at 2.30 p.m. on 16/4/2021.
(j) By order dated 16/4/2021, the disqualification proceedings
were stayed, so that even the Petitioners in Writ Petition
No.1074/2021 could attend the meeting scheduled on 16/4/2021
at 2.30 p.m. This Court observed that at least prima facie this was
an attempt to overreach the orders of this Court.
(k) As if this subversion of democratic principles was not enough,
it was alleged that one of the Councillors was sought to be
arrested and had to secure an anticipatory bail to attend the
meeting scheduled on 16/4/2021.
(l) The Petitioners have also placed on record order dated
6/5/2021 in Writ Petition No.1177/2021 (filing) to point out
that even electricity and water connections to the premises of one
of the Councillors, was sought to be disconnected and had to be
restored through court orders.
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(m) Ultimately, there is no dispute that the meeting to consider
the Motion of No-Confidence took place on 16/4/2021 and the
earlier Chairperson was voted out.
(n) In the fresh elections that ensued, Shri Raya Vinayak
Parsekar was elected as the Chairperson.
(o) This Petition has been instituted by Shri Raya Vinayak
Parsekar in his capacity as the Chairperson of the SMC and six
other Councillors. Therefore, the Petitioners represent at least for
the present, the majority of the Councillors at the SMC.
16. The allegations of obstructions and hindrances to the
functioning of the SMC are required to be considered in the
context of the aforesaid background and the number of times the
Petitioners had to approach this Court complaining about the
subversion of the democratic process and secure orders so that the
earlier Chairperson who was clinging to power had to yield and
the Chairperson having the support of the majority of the
councilors was installed. The Petitioners allege that now, after all
this, from the very first meeting of the council, obstructions, and
hindrances are being created to their functioning, through the
offices of the Chief Officer and the Director of Urban
Development/Municipal Administration who are openly hostile.
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17. According to us, at least the Chief officer has given good
cause to sustain such allegations. The material placed on record by
the petitioners and the chief officer himself does suggest that the
Chief Officer, besides being openly and unduly hostile to the
Chairperson and the majority of the elected councilors, has
exceeded his authority and even refused to implement the
resolutions and decisions of the council. The Chief officer has
made some orders without the authority of law to render the
smooth functioning of the council difficult. The situation is
compounded by the fact that the Chief officer holds other charges
and therefore is unavailable on a full-time or even sufficient time
basis to attend to the council works. Even the language used by
the Chief officer in his affidavit and his reply to the Director also
creates an impression that he is unduly and openly hostile to the
Chairperson and the majority of the elected councilors and has
not properly understood the role assigned to him under the Goa
Municipalities Act and his position qua the Chairperson and
elected councilors.
18. Concrete instance referred to by the Petitioners concerning
the Director is that the Director has entertained the Case
No.10/798/2020-21/DMA/Councillor/444, instituted by the
Councillors, who are in minority and without giving any
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opportunity of hearing to the SMC or the Petitioners herein,
expressed an opinion that the execution of Resolution Nos. 2,
20(9), 20(13) and 20(18) adopted in the councils meeting dated
7.5.2021 is liable to be prohibited. The Petitioners allege that the
Director, after expressing his ex-parte opinion gave a long
returnable date. The Petitioners have contended that there are no
reasons in the order expressing such opinion and the order is in
breach of the proviso to Section 293(2) of the said Act provides
that no order shall be passed under Section 293 (1) by the
Director, without giving a person who is likely to be affected, a
reasonable opportunity of being heard.
19. Although there is ambiguity in the notice dated 21/5/2021
that transcribes the ex-parte order, it is reasonable to proceed on
the basis that the Director has stayed the execution of Resolution
Nos.2, 20(9), 20(13), and 20(18) adopted by the SMC in its
meeting held on 7/5/2021. The learned Advocate General also
submitted that the Director has stayed the execution of such
resolutions by way of an ad-interim relief. The learned Advocate
General also made a statement that the case will be disposed of by
the Director after hearing the Petitioners, within 15 days. He
submits that there is sufficient power in the Director to grant ad-
interim relief of this nature, even without hearing the affected
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parties.
20. In this case, we do not propose to go into a larger issue as
to whether the Director, while exercising power under Section
293 of the said Act has powers to grant ex parte ad-interim relief.
At least Section 293 of the said act does not give any such specific
power to the Director to do so. Rather, the proviso to Section
293(2) states that
“no order” shall be passed under sub-section(1)
by the Director against any person without giving him a
reasonable opportunity of being heard. The learned Advocate
General however contends that if there is the power to suspend
the execution or prohibit the execution of a resolution, then, there
is always incidental power to stay the execution of such
resolutions, pending the final decision in the matter.
21. Section 293(1) refers to
“suspend execution” or prohibit
doing so. The proviso to Section 293(2) refers to
“any order” that
can be made under section 293(1) and further provides that "no
order" shall be made without giving the person affected a
reasonable opportunity of being heard. Therefore, the issue as to
whether the Director, whilst exercising the power under Section
293 can grant ex parte ad-interim relief or not, is debatable.
Besides, the existence of power is one thing and its use for
bonafide purposes is quite another. The issue, need not be gone
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into in the present case, now that the learned Advocate General
has stated that the main proceedings will be disposed of by the
Director within 15 days.
22. In any case, even if it is assumed that the Director has
powers to grant ex parte ad-interim relief under Section 293 of
the same Act, some reasons have to be indicated by the Director
whilst exercising such powers. At least, the notice dated
21/5/2021 indicates no reasons for the exercise of such powers.
The notice also does not indicate as to why it was not possible to
serve even a short notice upon the Petitioners and what was the
urgency to make such an ex parte order. For instance, Resolution
no.20(18) that the Director has stayed ex-parte had only rejected
an application made by one Gosavi for financial assistance to
repair her house because there was no such provision made by the
council. Now at least we fail to understand what was there in this
resolution to stay ex-parte and further what is the effect of such
stay order.
23. Having regard to the circumstances referred to in paragraph
(15), Mr. Lobo’s contention that such exercise is only to obstruct
the smooth functioning of the council cannot be outright
rejected. This contention is therefore kept open. Even the issue as
to whether the Director can grant ex parte ad interim order under
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Section 293(1), is kept open. Further, even assuming that such
powers are vested in the Director, the Director cannot exercise
such powers without indicating brief reasons that are reflective of
application of mind. In the present case, the Director has not
bothered to indicate any reasons or give a short returnable date.
24. Mr. Lobo, the learned Counsel for the Petitioners has
submitted that after all efforts to see that the Petitioners do not
gain control of the council failed, now, the efforts are being made
to see that the council is unable to function or that the
implementation of the resolutions of the council is frustrated by
the Director and the Chief Officer, who are not acting
independently and, in any case, flouting the provisions of the said
Act.
25. The Petitioners have given the following specific instances
concerning the Chief Officer and his non-cooperation when it
comes to the smooth functioning of the SMC :
(a) That despite there being no clear stay from the Director,
the Chief Officer failed to take steps to implement the resolutions
and decisions of the council taken in the meeting held on
7/5/2021;
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(b) That even though there was no stay to the execution of
resolution No.11 in the meeting held on 7/5/2021, the Chief
Officer, for ulterior reasons, has refused to implement the same;
(c) The Chief Officer issued an order dated 5/5/2021,
preventing any of the staff members of the council from giving
access or placing the files before the Chairperson of the council
unless the same are routed through the Chief Officer.
(d) The Petitioners have pointed out that the Chief Officer is
rarely available and, therefore, the functioning of the council has
been brought to halt by the issuance of the order dated 5/5/2021,
which has no legal or statutory basis whatsoever.
(e) The Petitioners have also referred to the language used by
the Chief officer in his affidavit and the reply filed before the
Director to urge that the Chief Officer is openly hostile and bent
on obstructing the functioning of the council.
26. The Petitioners have also made several other allegations,
but since the adjudication of the same would involve disputed
questions of fact, we refrain from going into such other
allegations. However, the aforesaid allegations, except perhaps the
one at (a) above have been made good by the Petitioners by
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placing sufficient material on record. Even the material place by
the Chief Officer supports the allegations made by the Petitioners.
27. Now, in so far as the resolution Nos. 2, 20(9), 20(13), and
20(18) are concerned, we cannot fault the Chief Officer for not
executing such resolutions because he was justified in carrying an
impression that the execution was stayed by the Director. There is
no justification offered by the Chief Officer, however, why the
remaining resolutions were not implemented by him. Particularly,
when it comes to Resolution No.11, adopted in the meeting held
on 7/5/2021, clearly there was no stay or restraint from the
Director for the execution of the same. In terms of Section 74(1)
(b) of the said Act, the Chief Officer was duty-bound to take steps
to give effect to this decision or resolution of the council. The
explanation offered by and on behalf of the Chief Officer betrays
his understanding of the legal position and also gives an insight
into what he perceives his position to be vis-à-vis the Chairperson
and the elected councilors.
28. In defense, Mr. Kerkar firstly tried to urge that there was
no resolution No.11 adopted in the meeting dated 7/5/2021 and
that there was only a note sent to him by the Chairperson. This
contention is misconceived and contrary to the record. The
resolution was produced by Mr. Lobo and thereafter this frivolous
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contention was fortunately abandoned by Mr. Kerkar.
Incidentally, this was not even the contention raised by the Chief
Officer in paragraph 15 of his lengthy affidavit. The Chief
Officer, in paragraph 15 has pleaded that he did not execute the
resolution Nos. 2, 20(9), 20(13), and 20(18) on account of the
stay granted by the Director and then has proceeded to state that
he did not execute resolution No.11 because of the pandemic
situation
in the exercise of powers vested in him under Section
74(ii) of the said Act.
29. There is no Section 74(ii) under the said Act. Possibly
what the Chief Officer meant, was Section 74(2) of the said Act.
Mr. Kerkar clarified that there was a typographical error in the
affidavit and the Chief Officer did mean Section 74(2) of the said
Act as his source of power to refuse implementation of resolution
no. 11. Section 74(2) of the said Act, however, reads as follows :
“74.(2) The Chief Officer may, with the sanction of the
Council, delegate any of the powers or duties or functions
conferred or imposed upon or allotted to him by or under
this Act, to any municipal officer or servant.
Provided that such delegation shall be subject to such
limitations, if any, as may be prescribed by the Council
and also to the control and revision by the Chief Officer”
30. Now, there is absolutely nothing in Section 74(2) of the
said Act which vests the power in the Chief Officer to refuse
implementation of the decisions or the resolutions of the
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Councils. The Chief Officer, in his lengthy affidavit, has used
extremely harsh language against the Petitioners and contended
that the Petitioners are bent upon
misconstruing or
‘
misconceiving’ the provisions of the said Act. According to us,
this is a clear case where the Chief Officer has himself
misconstrued the provisions of Section 74(2) of the said Act and
has attempted to usurp some power unto himself which, at least
the provisions of Section 74(2) of the said Act, never vested in
him. Mr. Kerkar was unable to point out any other provision
under the said Act, in terms of which the Chief Officer could have
refused to implement the resolutions of the council.
31. Ultimately, the Chief Officer, through his Advocate Shri
Kerkar, made a statement before us that he will implement
resolution No.11 within one week. We have accepted this
statement as an undertaking and directed the Chief Officer to
implement resolution No.11 within a week without any further
excuses. The Petitioners have thus succeeded in establishing that
the Chief Officer, in breach of the provision of Section 74, has
failed to take steps to give effect to resolution No.11 adopted by
the SMC in its meeting held on 7/5/2011.
32. The Chief Officer issued the order dated 5/5/2021
directing all the staff of the SMC to obtain proper noting/consent
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of the Chief Officer prior to presenting any file/files to the
Chairperson/Vice-Chairperson/Councillor. By the said order, he
further directed that in case, there is any need to forward any file
to any authority/section, then, the same shall have to be routed
through the Chief Officer. The Petitioners have also made a
reference to a note by one of the Councillors Ms. Ansira Khan
dated 22/4/2021, in which she complained about the refusal to
produce files/documents before her by the Municipal Officer on
the ground that the Chief Officer has instructed them to do so.
The Petitioners also referred to the notings put up by the Chief
Officer hindering the movement of files and thereby rendering
access to the Chairperson and elected councilors difficult.
33. Now that the Chief Officer has not pointed out any
provision under the said Act in terms of which he could have
issued the order dated 5/5/2021. The effect of the said order is
indeed to create hurdles in the functioning of the council. The
effect of the said order is to undermine the statutory position of
the Chairperson and the elected Councillors and, to some extent,
subordinate them to the Chief Officer. The effect of the said order
is to deny the free access to the Chairperson, Vice-Chairperson,
and the Councillors to the files of the council unless the same are
routed through the Chief Officer.
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34. The Petitioners complain that the files cannot be accessed
because of such orders/notings made by the Chief Officer,
insisting upon routing of the files through himself. The approach
of the Chief Officer indeed appears to be that no files can move in
the council without his approval and then he is hardly available to
give such approvals at the council office. The order dated
5.5.2021 is indeed an instance of unauthorized obstruction by the
Chief Officer to the smooth functioning of the council. The
Chief Officer was not justified in virtually denying access to the
files to the Chairperson, Vice-Chairperson, and the Councillors.
Curiously, all such issues arise only after the Petitioners assume
control and commence functioning.
35 . The Chief Officer, realizing that his order dated 5/5/2021
was indefensible, made a statement before this Court that the
same will be withdrawn within one week. Mr. Kerkar attempted
to explain that the Chief Officer issued such an order so that there
is some record of the movement of files. The maintenance of a
record is no doubt important. But this explanation is nowhere to
be found in the Chief Officer’s affidavit. Having regard to the
other circumstances and the attitude of the Chief Officer, this
explanation appears an afterthought. In any case, Mr. Kerkar was
unable to point out any legal provision under which the Chief
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officer could have issued such an order, even assuming his
objective was innocuous.
36. Mr. Kerkar, on instructions stated that the Chief Officer,
after withdrawing the order dated 5. 5.2021 will now maintain a
register of files so that there is a proper record of the movement of
files and the files are not lost or destroyed. According to us, the
Chief Officer should undoubtedly maintain proper registers so
that the files are not lost or destroyed and there is a proper trace
on the movement of files. However, there was neither any
justification nor did the Chief Officer show any legal provision
under which he could have issued the order dated 5/5/2021. If the
Chief Officer consistent with his statement does not withdraw the
order dated 5/5/2021 within one week, the same to stand
quashed.
37. Section 74(1)(a) provides that the Chief Officer, subject to
the control, direction, and supervision of the Chairperson,
supervise the financial and executive administration of the
Council and exercise such powers and perform such duties and
functions as may be conferred or imposed upon him or allotted to
him by or under the said Act. The Chief Officer is also duty-
bound to take steps to give effect to all the decisions or resolutions
of the Council. The Chief Officer is also duty-bound to cause to
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be maintained and supervise the accounts and registers of the
Council. The Chief Officer is required to report to the
Chairperson and the Committee concerned all cases of fraud,
embezzlement, theft, or loss of municipal money and property.
He has the power to exercise supervision and control over the acts
and proceedings of all the officers and servants of the Council.
But, again this will have to be subject to the control, direction,
and supervision of the Chairperson.
38. Precisely because there were clashes between the Chief
Officers who are Government Servants and the Chairpersons of
the Council who are elected representatives, the Secretary (Urban
Development) issued the circular dated 10/5/2000, which reads as
follows :
“ Dated: 10
th
May 2000
CIRCULAR
Subject: Powers of Chief Officers vis-a-vis
Chairperson of the Municipal Councils.
Representations have been received from some of the
Chairpersons of the Municipal Councils stating that the
Chief Officers are not sending the files to them whenever
they are called for. The entire matter of the duties and the
powers of Chief Officers vis-a-vis Chairpersons of the
Municipal Councils and their role under the Goa
Municipalities Act, 1959 (Act 2 of 1959) as amended from
time to time, has been examined in consultation with the
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Law Department and the following clarifications are
issued:-
1. A harmonious interpretation of various sections of
the said Act, particularly sections 2(33), 51(1)(b),
59(1)(d), 74(1)(a), and 74(1)(b), reveals that the Chief
Officer of a Municipal Council has to function subject
to the control and supervision of the Chairperson. In
terms of section 59 of the said Act, the Chairperson of a
Council shall, inter alia, watch over the financial and
executive administration of the Council. Further, the
administration of a municipal area shall vest in the Council
in terms of section 51 of the Act. Though some of the
functions are vested in the Chief Officer then the issuance
of construction permissions, issuance of demolition notices,
etc., all those powers are subject to the supervision and
control of the chairperson. The scheme of the Act
enjoins that the Chief Officers have to actively assist
and advise the Council and not to treat a rival centre of
power within the municipal administration. The powers
of taking action over the malfunctioning of the municipal
councils vests in other authorities like the Director of
Municipal Administration. Such powers cover suspension
of the execution of any order or resolution of a council on
certain grounds or the by the Director of Municipal
Administration under Section 293, appointment of the
municipal administrator, and in extreme cases dissolution
of the Council under Sections 293 and 300(3) respectively
by the Government. The only situation where the Chief
Officer can independently submit a report to the Director
of Municipal Administration over and above the hand of
the Chairperson or the Council is under Section 46(3).
It is, therefore, hereby directed that all the Chief
Officers should honour the orders of the Chairpersons
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in all matters relating to the municipal administration.
The Chairpersons and the Councils will, in turn, be
responsible, naturally, for the delays in deciding cases and
consequences following as per the provisions of the laws in
force. As per the Right to Information Act, 1997 (Goa Act
28 of 1997), all the citizens have the right of access to
information and obtain certified copies thereof of the
documents of the municipal records if they wish to do so.
2. The above instructions are issued in supersession of
previous instructions to the contrary on the subject.
3. The receipt of this Circular may be acknowledged.
Sd/-
( A. VENKATRATNAM )
SECRETARY URBAN DEVELOPMENT”
39. Mr. Kerkar submitted that the above circular was modified
by Circular dated 9/5/2001, which reads as follows :
“ Dated:- 09/05/2001
CIRCULAR
Sub: Powers of Chief Officers vis-a-vis Chairpersons of
the Municipal Councils.
Attention of all the Chairpersons and the Chief Officers
of the Municipal Councils is invited to Circular No.3/13-
6/95/UDD/224 dated 10
th
May, 2000 whereunder certain
clarifications were issued as regards the powers of the
Chief Officers vis-a-vis the Chairpersons. Consequent
upon the issue of the said circular, it has come to the
notice of the Government that Chairpersons of some of
the Councils have issued orders directing the Chief
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Officers to submit all the files pertaining to construction,
house tax, trade licences, etc., to the Chairpersons for
prior approval before issue of any permission and further
cautioned the Chief Officers of disciplinary action in case
of non-compliance taking shelter under the directives
contained in the Circular dated 10/5/2000 that the Chief
Officers should honour the orders of the Chairpersons in
all matters relating to the municipal administration. In
the light of above, it is felt necessary that the matter needs
further clarification so as to ensure smooth day to day
functioning of the Council within the ambit of law.
The Goa Municipalities Act, 1968 (Act 7 of 1969),
envisages certain statutory powers to be executed by the
Chief Officer/Chairperson of Municipal Council,
Director of Urban Development Department and the
Government. Each aforesaid authority has
a definite role
to play in furtherance of public interest.
Although, in terms of section 74 of the said Act, 1965 the
Chief Officer, while exercising powers conferred in him
are performing duties and functions as may be imposed
and allotted to him under the Act, does so subject to the
control, direction and supervision of the Chairperson, this
does not empower the Chairperson to direct the Chief
Officer to submit the cases for prior approval unless such
prior approval is required under the provisions of the Act,
Rules or bye-laws.
Although, for general supervision,
the Chairperson can call for any file for perusal,
powers under Section 74 do not entitle the
Chairperson to pass statutory order on any matter for
which the Chairperson is not specifically empowered
under any of the provisions of the Act, rules or bye-
laws. Thus, the Chairperson and the Chief Officer of
the Council are to perform their functions within the
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provisions of the said Act, and powers conferred on
the Chief Officer under any specific provision, cannot
be diluted by resorting to the general provisions of
Section 74 of the said Act.
The Circular dated 10
th
May, 2000, was issued so as to
ensure that the Chief Officer, Chairperson and the
Council should not function as rival centres of power
within the Municipal Administration and not create
further restriction of powers of any one authority.
Accordingly, it is enjoined on and to function strictly
within the ambit of law.
Sd/-
(A. Venkataratnam)
Secretary (UD)”
40. The Petitioners have placed on record a communication
dated 4/10/2013, enclosing the minutes of the meeting of the
Chairpersons/Chief Officers of all Municipal Councils held under
the Chairmanship of Hon'ble Deputy Chief Minister/ Minister
(Urban Development) on 16/9/2013. In this meeting, there was
discussion on the coordination between Council and
Administration and after, detailed discussion, the following
decisions were taken:-
“ (i) All Inward Correspondence should also be placed
before the Chairperson.
(ii)Replies to Writ Petitions, legal suits before any Court
or legal Authority should also be shown to the
Chairperson before filing.
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(iii)All Audit Reports to be placed before the
Chairperson.
(iv)Reports of inspections carried out by Municipal staff
to be placed before the Chairperson before action is taken
by the Chief Officer.
(v)Replies to LAQs to be shown to the Chairperson.
(vi)Proposed demolition to be brought to the notice of
the Chairperson before carrying out the same.
(vii)Construction/Licence/Occupation files to be placed
before the Chairperson before issuing. The Chairperson to
return the files within a period of three days with or
without observations. The Chief Officers to take
cognizance of observations if any and decide on the same.
The Hon'ble Dy. Chief Minister/Minister (UD) has
convened the next review meeting of the Municipal
Councils on 4
th
December, 2013. The Hon'ble Dy. Chief
Minister/Minister (UD) tanked all participants and
instructed the Director to issue necessary Circulars by
incorporating the decisions.”
41. For the present, we do not deem it appropriate to take
cognizance of the above meeting dated 4th December 2013.
Based however on the aforesaid two circulars, as also the
provisions of the said Act, it is quite clear that the Chief Officer
has to function subject to the control, direction, and supervision
of the Chairperson, when it comes to financial and executive
administration of the Council. No doubt, there are provisions
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under the said Act which confer independent powers on the Chief
Officer and when it comes to exercise of those powers, the Chief
Officer will have to act independent of the Chairperson or the
Councillors, as the case may be. However, in the matters of
financial and executive administration of the Council, the Chief
Officer is subject to the control, direction, and supervision of the
Chairperson. The Chief Officer must, under no circumstances act
like some rival power center in the council.
42. Even under Section 74(2) of the said Act, the Chief Officer
may, only with the sanction of the Council, delegate any of the
powers or duties or functions conferred or imposed upon or
allotted to him by or under this Act, to any municipal officer or
servant. The proviso to sub-section (2) of Section 74 provides
that such delegation shall be subject to such limitations if any, as
may be prescribed by the Council and also to the control and
revision by the Chief Officer. All this indicates that in matters of
financial and executive administration, the Chief Officer has to
function subject to control, direction, and supervision of the
Chairperson.
43. Ultimately, the Chief Officer has to remember that the
Chairperson and other Councillors of the Council are elected
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members. The role of the Chief Officer, unless, otherwise,
specified under the provision of the said Act, is to take steps to
give effect to all the decisions or resolutions of the Council. The
Chief Officer must assist the Chairperson and the elected
councilors in the discharge of their lawful functions. The Chief
Officer is not expected to take any sides or act under dictation
while discharging this role. No doubt, when it comes to the
discharge of duties and functions that the said Act has assigned
exclusively and independently to him, the Chief Officer has to
assert his independence and act accordingly. This is the scheme of
the said Act that binds all the functionaries under the said Act.
The Chief Officer, in his affidavit, has made bold but bald
assertions about his compliance with the provisions of the said Act
and the above circulars. But the orders made by him and his
unjustified refusal to implement even the resolutions of the
Council that were admittedly not stayed belies such assertions and
suggests otherwise.
44. The Chief Officer, in this case, has used extremely strong
language in his affidavit and reply before the Director. For
instance, the Chief Officer, in paragraph 9 of his affidavit has
gone to the extent of alleging that the Petitioners, which include
the Chairperson and majority of the elected Councillors, are in
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the habit of making any false allegations against the Chief
Officers in order to pressurize the Chief Officers, dominate them,
so as to succumb to their illegal demands and that the present
petition has been filed prematurely by misinterpreting the
provisions of the said Act.
45. The Chief Officer has not bothered to furnish even a
shred of material in support of such serious allegations. The
allegations have been made without any sense of responsibility.
Such unsubstantiated allegations are not to be made by
Government Servants against elected representatives unless there is
some cogent material to back the same. The Chief Officer is not
some rival councilor that he should so viciously attack the
Chairperson under whose control, supervision, and direction the
Chief Officer is to function when it comes to executive and
financial matters. In response to the Chairperson’s complaint to
the Director, the Chief Officer has made similar unsubstantiated
allegations using harsh language. The Chief Officer has gone to
the extent of stating that the Chairperson by only filing a
complaint before the Director has abused his position and
therefore strict action be contemplated against the chairperson as
contemplated under the Goa Muncipalty Act.
This means that the
Chief officer will disregard the Chairperson, the elected
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councilors, the resolutions of the council and if the Chairperson
complains about this to the Director, then this Chief officer will
allege abuse of powers by such Chairperson and even propose
strict action.
46. The Chief Officer, in his affidavit and his reply before the
Director, has alleged quite repeatedly that the Petitioners have
misconstrued the provisions of the said Act. As noted earlier, not
the Petitioners, but it is the Chief Officer who has grossly
misinterpreted the provisions of Section 74 of the said Act. The
Chief Officer has acted in breach of the provisions of the said Act
and the circulars issued by the Secretary( urban development).
The strong words used by the Chief Officer against the
Chairperson and the majority of the elected councilors perhaps
apply to the conduct and the role of the Chief Officer in the
present case. Ultimately, the Chief Officer accepted his lapses and
undertook to withdraw his order dated 5.5.2021 and to
implement resolution No.11. Having regard to the undertaking of
the Chief Officer, the Petitioner’s complaint dated 21.05.2021 to
the Director stands substantially redressed and can be now
formally disposed of by the Director.
47. From the perusal of the affidavit filed by the Chief Officer,
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we are inclined to agree with Mr. Lobo that the Chief Officer
entertains an impression that he is supreme when it comes to the
administration of the Council, and the Chairperson and other
elected Councillors are virtually subservient or subordinate to
him. According to us, the Secretary (Urban Development) must
take serious note of the conduct of this Chief Officer and the
affidavit and reply filed by him and consider counseling him
about his powers and duties under the said Act and how he should
interact with the Chairperson and other elected Councillors of the
council. The Secretary (Urban Development) must also consider
whether this Chief Officer should be shifted to some other
Council, having regard to his functioning in the present Council
and the affidavit/reply filed by him, making unsubstantiated
allegations against the Chairperson and the other Councillors.
48. The said Act requires the State to appoint a Chief Officer
to a Council. The larger question of whether such an officer has to
be a full-time officer without any other additional charge can be
gone into in an appropriate matter in the future. For the present,
we accept the statement of the learned Advocate General that the
Chief Officer will attend the SMC on all working days, in the
afternoon session i.e. between 2.30 p.m. to 5.30 p.m., so that the
immediate complaint of the Petitioners is redressed. The learned
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Advocate General submits that presently, the Administration is
involved in combating the pandemic. He submits that there is a
shortage of officers. He submits that eight other Councils have
Chief Officers holding additional charge of some other posts.
Having regard to all these factors, we do not deem it appropriate,
presently, to go into the larger issue as to whether the State
Government has to invariably appoint a full-time Chief Officer in
the Councils.
49. For all the aforesaid reasons, this Petition is disposed of by
making the following order :
(A) The statement made by the learned Advocate General that
the Chief Officer shall report for duties at the SMC on all
working days in the afternoon session i.e. 2.30 p.m. to 5.30 p.m.,
is accepted. The Respondents will have to take necessary steps to
ensure that there is compliance with this statement.
(B) The statement made by the Chief Officer that he will
withdraw order No. SMC/2021-22/223 dated 5.5.2021, within
one week, is accepted. The Chief Officer to issue formal orders
within one week. If, no such orders are issued, the order dated
5/5/2021 to stand quashed, without the necessity of further
reference to this Court.
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(C) The statement of the Chief Officer that he will implement
resolution No.11 adopted by the SMC in its meeting dated
7/5/2021 within one week, is accepted. The Chief Officer,
consistent with his statement/undertaking, will have to take steps
for implementation of the said resolution.
(D) The statement made by the learned Advocate General
that the Director of Urban Development will dispose of Case
No.10/798/2020-21/DMA/ Councillor/444 within 15 days from
22/07/2021, is accepted and the Director of Urban Development
to act based on the same.
(E) The Secretary (Urban Development) to consider the
issue of retention of Shri Deepak Vaigankar, as Chief Officer of
the SMC, and comply with other directions in paragraph 47,
within 30 days from today and take appropriate decision on this
issue. A compliance report to be filed in this Court on or before
1
st
September 2021.
(F) The Chief Officers of the Municipal Councils are
directed to discharge the duties imposed upon them under
Section 74 of the Goa Municipalities Act, 1968 and further,
comply with the directions contained in the Circulars dated
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10/5/2000 and 9/5/2001 in their interactions with the
Chairpersons of the Municipal Councils.
50. There shall be no order as to costs. All concerned to act on
an authenticated copy of this order.
Smt. M.S. Jawalkar, J. M.S. Sonak, J.
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SANTOSH S MHAMAL
Digitally signed by SANTOSH S MHAMAL
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Legal Notes
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