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2012 DIGILAW 1625 (BOM)

Rosario S. Fernandes v. State of Goa

2012-08-28

A.P.LAVANDE, U.V.BAKRE

body2012
Judgment : (A.P. Lavande, J.) Heard Mr. Menezes, learned Counsel for the petitioner, Ms. Mordekar, learned Additional Government Advocate for respondents no.1 to 4 and Mr. Pangam, learned Counsel for respondent no.5. 2. By this petition, the petitioner has challenged the order dated 02/07/2004 exhibit G passed by respondent no.3 and resolution dated 06/12/2003 exhibit M passed by respondent no.5. 3. The case of the petitioner is as under: The petitioner is a citizen of India and is residing at House No.1519/A situated at Zuem, Baradi, Velim, Salcete, Goa (hereinafter referred to as 'the house' for short). Respondent no.1 is the authority vested with the powers under Article 372-A of the Goa Legislative Diploma No.2070 and Rules made thereunder known as the Code of Communidades (hereinafter referred to as 'the Code') to decide the matters regarding regularisation of unauthorized occupation and encroachment of land vested in Communidade. Respondent no.5 is a body created under the Code and is under the tutelage of respondent no.1. 4. The petitioner constructed a residential house admeasuring 105 square metres in the land bearing Survey No.66/1 of village Velim belonging to respondent no.5 about 30 years ago. The said house was allotted house no.1519/A by Village Panchayat Velim. The petitioner resides along with his wife and three children. The said house also has electricity connection obtained prior to 15/06/2000 i.e. the date of coming into force of Article 372-A of the Code by way of amendment. It is further the case of the petitioner that his traditional occupation is of running a bar and he sells liquor and snacks from the said house to earn his livelihood. However, it is the case of the petitioner that the said structure was of residential nature and not commercial one. 5. On 21/12/2001, the petitioner made an application under Article 372-A which permits regularisation of unauthorised occupation in respect of a house constructed in the property of the Communidade on or before 15/06/2000. Respondent no.3 called upon the petitioner to furnish certain documents listed in the notice dated 29/05/2003. The petitioner submitted all the documents required by respondent no.3 for processing the application. Thereafter, site inspection was scheduled on 29/12/2003 at 10.00 a.m. However, the same did not take place. Subsequently, another site inspection was fixed on 30/01/2004. the same also did not take place. This fact has been disputed on behalf of respondents no.1 to 4. The petitioner submitted all the documents required by respondent no.3 for processing the application. Thereafter, site inspection was scheduled on 29/12/2003 at 10.00 a.m. However, the same did not take place. Subsequently, another site inspection was fixed on 30/01/2004. the same also did not take place. This fact has been disputed on behalf of respondents no.1 to 4. It is the case of the petitioner that thereafter, the petitioner received a letter dated 02/07/2004 addressed by respondent no.3 rejecting the application of the petitioner for regularisation. The main reason for rejecting the application was that the structure was used for commercial purpose and no prior permission was obtained by the petitioner for its construction from the respondent no.4 or respondent no.5. Thereafter, the petitioner sought copy of the resolution dated 06/12/2003 passed by respondent no.5. 6. Affidavit has been filed on behalf of respondent no.2 inter alia stating that site inspection was held on 28/05/2004 and note of inspection was prepared by Talathi which also bears the signature of the petitioner. It has been further stated that the application for regularisation has been rejected since the structure was used for residential as well as commercial purpose. 7. Affidavit-in-reply has been also filed on behalf of respondent no.5 inter alia contending that the application for regularisation was not maintainable inasmuch as the structure was used by the petitioner for commercial purpose and not for residential purpose as required under Article 372-A of the Code. It is further the case of respondent no.5 that the petitioner has been staying at Margao. Respondent no.5 has contested the claim of the petitioner to get the structure regularised in terms of Article 372-A of the Code. 8. Mr. Menezes, learned Counsel for the petitioner invited our attention to Article 372-A of the Code dealing with regularisation of unauthorised occupation of a structure used for residential purpose. Article 372-A of the Code prescribes the procedure to be followed by a person who is in unauthorised occupation of any land belonging to the Communidade by constructing a house for residential purpose on or before 15.06.2000. Article 372-A inter alia provides that a person in occupation of land of the Communidade with house constructed thereon on or before 15.06.2000 can apply for regularisation of such unauthorized occupation or encroachment. Article 372-A inter alia provides that a person in occupation of land of the Communidade with house constructed thereon on or before 15.06.2000 can apply for regularisation of such unauthorized occupation or encroachment. In terms of sub clause (3) of Article 372-A, a person desirous of seeking regularisation of such a residential house, has to make an application and has to pay fees and follow the procedure in terms of the rules prescribed under the Code. In terms thereof, the State Government has amended the Goa Legislative Diploma No.2070 dated 15/04/1961 Rules, 1985 ('the Rules' for short) (Amendment Rules 2001). Rule 14 prescribes a form of an application for regularisation, Rule 15 deals with the area of the land to be regularised in terms of Article 372-A, Rule 16 deals with the documents required to be furnished along with the application made in terms of Article 372-A. Rule 17 prescribes a detailed procedure to be followed while processing an application made under clause (1) of Article 372-A of the Code. We deem it appropriate to quote Rule 17 which reads thus: “7. Procedure to be followed in procession/deciding the application made under clause (1) of Article 372-A – (1) All the interested persons whosoever are eligible for submission of application under clause (1) of Article 372-A shall apply strictly within 180 days as provided in Article 372-A in Form I hereto with a processing fee of Rs.200/-per application alongwith the proof of unauthorised occupation/ wrongful possession/ encroachment of Communidade land and of the construction of house thereon and other documents specified in rule 13, to the respective Collector, failing which, the application shall not be entertained and any application received after the specified period shall be rejected. (2) The application received with proper documentation and fee shall be entered in a register to be maintained to that effect by the Collector. The said application shall be scrutinised vis-a-vis the data available with the Collector regarding the unauthorised occupation/ wrongful possession/ encroachment on Communidade land and if on scrutiny, the Collector is satisfied that the application is complete in all respects and the applicant is entitled for the benefit of Article 372-A, the application shall be forwarded to the concerned Communidade within twenty days from the date of receipt of the application by the Collector concerned. (3) The concerned Communidade shall after receipt of the application forwarded by the Collector, treat it as a special case and process and place the same before the General Body meeting/ Extraordinary meeting, a notice of which shall be published in the Official Gazette at least seven days prior to the date of the meeting. In such meeting the General body and in case of its failure to hold such meeting or to arrive at a decision on such application, the Administrative Board (Junta) shall resolve to grant land within a period of thirty days from the date of receipt of the application by the Communidade. (4)(a)The Administrator of the respective zone shall, on receipt of the relevant file, notify the applicant and the Procurador of the concerned Communidade for inspection of plot after fixing the date and the hour for this purpose. (b) The Inspection shall be carried out by the Administrator alongwith his Secretary, the applicant, the Procurador and the Clerk of the Communidade/ Surveyor. (c) The Administrator shall prepare the inspection report mentioning therein the details of the area, boundaries, fees and the tax and submit the said report alongwith the relevant file to the Director of Civil Administrator/ Collector within sixty days for further necessary action. (d) The Collector shall within a period of fifteen days from the date of receipt of the report from the Administrator, submit the said report and the relevant file with his recommendation thereon for the consideration of the Government and the Government shall after considering the recommendation of the Collector, take a final decision in the matter within 90 days.” 9. It is the case of the petitioners that the impugned order passed by respondent no.3 is clearly in breach of Rule 17 inasmuch as the procedure prescribed under sub-rules (3) and (4) of Rule 17 of the Rules, has not been followed. According to the petitioner, respondent no.5 has not placed an application for regularisation before the General Body as required in terms of sub-rule (3) of Rule 17. Moreover, it is the case of the petitioner that subrule (4) of Rule 17 has also not been complied with inasmuch as no inspection has been carried out. According to the petitioner, respondent no.5 has not placed an application for regularisation before the General Body as required in terms of sub-rule (3) of Rule 17. Moreover, it is the case of the petitioner that subrule (4) of Rule 17 has also not been complied with inasmuch as no inspection has been carried out. It is the case of the petitioner that in terms of clause (d) of subrule (4) of Rule 17, the Collector within a period of 15 days from the date of receipt of report from Administrator ought to submit the report and file with recommendation for the consideration of the Government and the Government has to take final decision thereon after considering the recommendation of the Collector, within a period of 90 days which has not been done in the present case and final decision has been taken by respondent no.3. Thus, according to the petitioner, there is clear breach of subrules (3) and (4) of Rule 17 of the Rules and on this count, the impugned order is liable to be set aside. 10. On behalf of respondents no.1 to 4, Ms. Mordekar, has fairly conceded that subrules (3) and (4) of Rule 17 have not been complied with. 11. Mr. Pangam, learned Counsel appearing on behalf of respondent no.5 submitted that the application for regularisation filed by the petitioner, is not maintainable inasmuch as as on 15/06/2000 he was using the structure for commercial purpose, in respect of which he has applied for regularisation and as such, in terms of Article 372-A of the Code, the application for regularisation has not been accepted. 12. It is pertinent to note that during the pendency of this petition, the petitioner had given an undertaking that he will not use the said structure for commercial activities i.e. for running a bar and restaurant and the said undertaking has been accepted by this Court. 13. Perusal of the impugned order discloses that the impugned order dated 02/07/2004 has been passed by respondent no.3 and not by the State Government as required in terms of clause (d) of sub-rule (4) of Rule 17 of the Rules. Moreover, the contention of the petitioner that sub-rules (3) and (4) of Rule 17 have not been complied with, has not been seriously disputed on behalf of respondents no.1 to 4. Moreover, the contention of the petitioner that sub-rules (3) and (4) of Rule 17 have not been complied with, has not been seriously disputed on behalf of respondents no.1 to 4. In our opinion, therefore, the impugned order passed by respondent no.3 dated 02/07/2004 is liable to be quashed and set aside. 14. Insofar as the stand taken by respondent no.5 that the petitioner is not entitled to get regularisation of the house No.1519/A in terms of Article 372-A of the Code on the ground that as on 15/06/2000, he was using the said structure for commercial purpose i.e. for running bar and restaurant is concerned, we are not inclined to give any finding at this stage as it is not necessary for us to give finding on the said aspect. This aspect of the matter has to be looked into by the State Government while considering the application for regularisation of the house of the petitioner in terms of Rule 17 of the Rules. In view of the admitted position that subrules (3) and (4) of Rule 17 of the Rules have not been complied with, the impugned order is liable to be quashed and set aside. It is not necessary for us to quash and set aside the resolution dated 06/12/2003 as claimed by the petitioner. 15. Admittedly, the entire file containing application for regularisation filed by the petitioner as well as the other records are with respondent no.3. Respondent no.3 shall forward the application filed by the petitioner for regularisation along with entire file regarding regularization of house No.1519/A, to respondent no.4, within a period of three weeks who shall forward the same to respondent no.5, within a period of four weeks thereafter. Upon receipt of the entire file containing the application for regularisation, respondent no.5 shall place the same before the next General Body meeting which will be convened by respondent no.5 so as to enable the General Body to take decision in terms of sub-rules (3) and (4) of Rule 17 of the Rules. Thereafter, the respondents shall comply with the procedure in terms of sub-rules (3) and (4) of Rule 17 of the Rules and appropriate order may be passed by the State Government in terms of clause (d) of sub-rule (4) of Rule 17 of the Rules. Thereafter, the respondents shall comply with the procedure in terms of sub-rules (3) and (4) of Rule 17 of the Rules and appropriate order may be passed by the State Government in terms of clause (d) of sub-rule (4) of Rule 17 of the Rules. Needless to mention that while considering the application for regularisation, respondent no.1 shall consider the contention of respondent no.5 that as on 15/06/2000 the petitioner was using the house No.1519/A for running bar and restaurant and thereafter pass appropriate order in accordance with law. 16. Mr. Menezes, learned Counsel appearing for the petitioner at this stage submits that the undertaking given by the petitioner that he will not use house no.1519/A for any commercial activities, be continued till disposal of the application filed by the petitioner under Article 372-A of the Code. The undertaking given by the petitioner is continued till disposal of the application filed by the petitioner under Article 372-A of the Code by respondent no.1. 17. Rule is made absolute in aforesaid terms. No order as to costs.