Comunidade of Chicalim v. Administrator of Comunidades of Salcete and South Zone and others
1993-08-31
G.D.KAMAT, M.L.PENDSE
body1993
DigiLaw.ai
JUDGMENT - M.L. PENDSE, J.:-The petitioner No. 1 is the Comunidade of Chicalim of Mormugao Taluka. There are fourteen Comunidades in Mormugao Taluka including Chicalim. Under Legislative Diploma No. 2070 the Comunidades of Talukas in Goa, Salcete and Bardez were created and each of the Comunidades was under the care of an Administrator. The Comunidades of other talukas were under the care of the Administration of Talukas and were headed by the Administrator. Since the Liberation of Goa the functions of the Taluka Administrators are performed by Mamlatdars. Prior to Liberation, the Code of Comunidades had come into existence in the year 1961. Article 1 of the Code inter alia provides that the Comunidades existing in the District of Goa are regulated by the provisions of the Code. Article 125 of the Code inter alia provides that it is incumbent upon the Administrator of Comunidades to order the preparation of the budget of income and expenditure of the Administration in October of each year. The budget is to be prepared by dividing between the Comunidades proportionally the amount of income of the year. The share of the Comunidade and the budget should be submitted for approval to the Government. Article 125(5) provides that the Administrator shall communicate by December 15, of every year, the contribution which each Comunidade has to pay and its contribution is to be determined in proportion to the amount of income earned by each Comunidade every year. The contribution can be recovered in instalments and the recovery is either voluntarily or by co-ercive action. 2. Prior to year 1965 the Administrator, Mormugao, used to prepare budget in respect of Comunidades in Mormugao Taluka and which were fourteen in number. The contribution of petitioner No. 1 was Rs. 2,906.70 p. approximately per year. On March 24, 1965, the Lt. Governor of Goa, Daman and Diu, passed an order in exercise of powers conferred by Clauses (2) and (3) of Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962. The order provided that the jurisdiction of the Administrator of Salcete is extended to the Comunidades of Mormugao, Quepem, Canacona and Sanguem. The order further provides that the staff of the Comunidades of Mormugao shall be maintained in the respective offices and shall deal with the matter of Comunidades.
The order provided that the jurisdiction of the Administrator of Salcete is extended to the Comunidades of Mormugao, Quepem, Canacona and Sanguem. The order further provides that the staff of the Comunidades of Mormugao shall be maintained in the respective offices and shall deal with the matter of Comunidades. Inspite of passing of this order, the Administrator prepared separate budget for Comunidades covered by Mormugao Taluka and the contribution demanded from the petititoner No. 1 Comunidade continued to be in the range of Rs. 2,900/- from year 1965 till year 1982. In the year 1982, the Administrator prepared a centralized common budget of the Comunidades of Mormugao, Quepem, Canacona and Sanguem, covering total number of 90 Comunidades. The result of preparation of common budget increased the contribution to be paid by petitioner No. 1 from the range of Rs. 2,900/- to Rs. 4,66,986.70 p. The petitioner No. 1 protested against the demand of contribution amount. Subsequently, the Administrator followed identical procedure and on December, 17, 1987, demanded a sum of Rs. 7,43,009.36 p. by way of arrears for the year 1980 and 1983 - 1987. By another notice dated December 5, 1990, petitioner No. 1 was called upon to pay a sum of Rs. 19,97,897.58 p. as arrears of land revenue by way of recovery of dues in respect of the contribution payable from year 1980 to 1990. Petitioner No. 1 was threatened with coercive action in case of failure to make payment and that gave rise to the filing of the present petition under Article 226 of the Constitution. 3. Mr. Kakodkar, learned Counsel appearing on behalf of the petitioners, submitted that the action of the respondents in preparing centralized common budget in pursuance of order dated March 24, 1965, passed by the Lt. Governor is entirely erroneous. The learned Counsel urged that the order was passed in exercise of powers conferred by Goa, Daman and Diu (Adminiatration) Removal of Difficulties Order, 1962. The learned Counsel urged the Removal of Difficulties Order does not confer power to legislate and by no stretch of imagination the order can vary the statutory provisions of the code which were in existence prior to liberation and which, according to section 5 of Goa, Daman and Diu Administration Act, continues to remain in operation till modified or abrogated by a subsequent legislation. Mr.
Mr. Kakodkar submits that the provisions of the code and specially Article 125 which provides for preparation of budget and contribution, were never modified by legislation and therefore, it was not permissible for the Lt. Governor to modify it by usurping powers conferred under Removal of Difficulties Order. Mr. Advocate general appearing on behalf of the State Government and Mr. Usgaokar, learned Counsel appearing on behalf of the respondent No. 1, Administrator, on the other hand urged that the order was passed by the Lt. Governor for removal of difficulties which were faced on advent of tenancy legislation. It was contended that the difficulty was faced in regard to exercise of jurisdiction by the Mamlatdars under the provisions of the Tenancy Act and for removal of the difficulty the order was required to be passed by the Lt. Governor. Mr. Usgaokar further submitted that once the jurisdiction of the Administrator of Salcete was extended to the Comunidades of Mormugao, Quepem, Canacona and Sanguem then it was incumbent upon the Administrator to prepare a centralized common budget and it was not permissible to prepare different budgets as was done prior to year 1965. 4. After carefully examining the contentions urged by the respective counsel, in our judgment order dated March 24, 1965, passed by the Lt. Governor in exercise of powers conferred by Clauses (2) and (3) of the Removal of Difficulties Order cannot be so read as to entitle the Administrator to prepare centralized budget, under Article 125 of the Code. It is now well-settled by catena of decisions that the powers conferred under Removal of Difficulties Order can be exercised only for the purpose of removal of difficulties in interpreting the provisions of the statute or a code or for removal of difficulties which have arisen because of different interpretations by authorities constituted under the code. The powers under Removal of Difficulties Order cannot be exercised to modify, alter or amend the provisions of the statute. The powers cannot be equated with legislative powers available for modification or amendment of a statute. Bearing this principle in mind it is necessary to examine what was the exact ambit and intent for passing Order dated March 24, 1965, by Lt. Governor. To understand the import or the order it is necessary to examine what was the difficulty felt by Government and which was required to be removed.
Bearing this principle in mind it is necessary to examine what was the exact ambit and intent for passing Order dated March 24, 1965, by Lt. Governor. To understand the import or the order it is necessary to examine what was the difficulty felt by Government and which was required to be removed. A perusal of the returns filed by the respondents makes it clear that the difficulty which was felt was in view of the advent of the Tenancy Act and exercise of jurisdiction by the Mamlatdar. On behalf of respondent No. 1, Administrator, return has been filed by Smt. Cynthia Silva, Administrator, of Comunidades of Salcete and the return is sworn on October 9, 1991. Paragraphs 4r, 4s and 4t set out the difficulties which were felt at the time of passing the order by Lt. Governor. It would be appropriate to set out these three sub-paragraphs :- "4r. The Comunidades of all talukas of Goa had lands which were tenanted and they were covered by the said Tenancy Act as per section 55. The jurisdiction to decide tenancy cases was given to Mamlatdar of respective Taluka. The Administrator of Comunidades had to defend the interest of Comunidades. 4s. It was not therefore, possible to entrust to the Mamlatdars of Taluka the functions of supervision and control of the affairs of Comunidade in view of special jurisdiction conferred upon them to decide tenancy cases in which the Comunidade would be parties as being landlords. 4t. Therefore, in order to avoid this conflict of interests it was necessary to remove difficulty by giving to some other authority the jurisdiction over Comunidades of the Concelhos of Talukas of Marmagoa, Quepem, Canacona, Sanguem, Pernem, Bicholim and Ponda." A perusal of these sub-paragraphs makes it clear that the difficulty which felt was in respect of exercise of jurisdiction by the Mamlatdars under the provisions of Tenancy Act and order dated March 24, 1965, passed by the Lt. Governor was only for the purpose of removal of difficulties set out in these sub-paragraphs. The order passed by the Lt. Governor cannot be read as to confer power on the Administrator to prepare a centralized budget by modifying the procedure which was earlier followed under Article 125 of the code. The intention of the order passed by the Lt.
Governor was only for the purpose of removal of difficulties set out in these sub-paragraphs. The order passed by the Lt. Governor cannot be read as to confer power on the Administrator to prepare a centralized budget by modifying the procedure which was earlier followed under Article 125 of the code. The intention of the order passed by the Lt. Governor is also clear from the fact that right from the year 1965 till year 1982 neither the State Government nor the Administrator thought that the order entitled the Administrator to prepare a centralized budget. It was only in the year 1982 that the Administrator thought that the order entitles preparation of a common budget and which led to demand of a contribution from the petitioner No. 1 which is 800 times of what was demanded right to the year 1982. Mr. Usgaokar submitted with reference to the return of the Administrator, that the Administrator of Comunidade of Salcete having control over Comunidades of Talukas Quepem, Canacona, Sanguem and Marmagoa, was entitled under Article 116 of the Code read with Order dated March 24, 1965, to prepare only one budget for all the Comunidades. The claim made by the learned Counsel is not correct. The order does not confer power upon the Administrator to prepare one budget. The order was passed only for the purpose of removal of difficulty in respect of exercise of jurisdiction of the Mamlatdar under the provisions of the Tenancy Act. The assumption of the Administrator that the order entitles preparation of one common budget for all Comunidades covered under four different talukas is incorrect. In our judgment, the contribution demanded from the petitioner No. 1 from the year 1982 onwards on the basis of common budget cannot be sustained. In these circumstances, even though the validity of the order dated March 24, 1965 passed by Lt. Governor is upheld, the action of the Administrator in assuming that the order entitles the Administrator to prepare one centralized budget for all 90 Comunidades from all four talukas, is struck down. The Administrator is directed to prepare separate budget for Comunidades covered by different talukas as was done until year 1982 and the petitioner No. 1 will be liable to pay contribution on that basis. 5. Accordingly, petition partly succeeds and though the order dated March 24, 1965, passed by the Lt.
The Administrator is directed to prepare separate budget for Comunidades covered by different talukas as was done until year 1982 and the petitioner No. 1 will be liable to pay contribution on that basis. 5. Accordingly, petition partly succeeds and though the order dated March 24, 1965, passed by the Lt. Governor in exercise of powers under Clauses (2) and (3) of Goa, Daman and Diu (Administration) Removal Difficulties Order, 1962, is upheld, respondent No. 1 is directed to prepare separate budget under Article 125 of the Code in respect of Mormugao, Quepem, Canacona and Sanguem talukas. The petitioner No. 1 will be liable to pay the contribution under Article 125 on the basis of a separate budget for the taluka. The demand notices served on the petitioner No. 1 on the basis of centralized Budget prepared by respondent No. 1 between year 1980 and 1990 are struck down. The petitioners are entitled to refund of any of the amounts paid under the demand notices which are struck down. In the circumstances of the case, there will be no order as to costs. Petition partly succeeds.