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2021 DIGILAW 496 (BOM)

Nelson Francisco Cabral v. Francis Cabral

2021-03-03

BHARATI H.DANGRE, M.S.SONAK

body2021
JUDGMENT M. S. Sonak, J. - Heard Mr. S. G. Desai, learned Senior Advocate with Mr. Virendra Parsekar for the Petitioners, Mr. D. Pangam, learned Advocate General with Mr. Deep Shirodkar, learned Additional Government Advocate for Respondent Nos.1, 3 and 5, Mr. S. N. Joshi, learned counsel for Respondent No.2 and Mr. A. D. Bhobe, learned counsel for Respondent No.4. 2. The Petitioners "Cabrals" challenge the abrupt exclusion of their houses bearing Nos. 474, 474A, 475, 475-B (said houses) from the area limits of the Corporation of the City of Panaji ( Corporation ) vide notification dated 4th February 2021, on the eve of the elections for which the polling is scheduled on 20th March 2021. 3. Taking into consideration the urgency made out, we issue Rule and with the consent of the learned counsel for the parties, we make the Rule returnable forthwith. 4. The Corporation was established as a result of the City of Corporation Act, 2002 ( the said Act ). Section 1(2) of the said Act provides that the same shall apply to the areas specified in Schedule I of the said Act. 5. Schedule I of the said Act, includes inter alia the whole of Panaji Municipal Areas as on the date of enforcement of the said Act, excluding some survey numbers, which admittedly do not concern the issues raised in this petition. This means that the areas which were earlier included within the limits of Panaji Municipal Council constituted under the Goa Municipalities Act, 1968 were included in the area of the Corporation. 6. There is no dispute that the Petitioner No.1, not only lived within the areas which earlier constituted the Panaji Municipal Council but further, the Petitioner No.1 was elected as its councillor in the year 1995. After the establishment of the Corporation in the year 2002, the Petitioner No.2, who is the wife of Petitioner No.1 was also elected as corporator. In the years 2006 and 2011, the Petitioner No.1 contested the elections to the Corporation, but lost. However, it is pleaded that the Petitioners' brother who resides in house no.474, which is now excluded, contested and was elected as corporator in the years 2011 and 2016. 7. In the years 2006 and 2011, the Petitioner No.1 contested the elections to the Corporation, but lost. However, it is pleaded that the Petitioners' brother who resides in house no.474, which is now excluded, contested and was elected as corporator in the years 2011 and 2016. 7. The Petitioners have placed on record the notification dated 11th January 2016, which was also issued under Section 9(2) of the said Act and from the same, it is clear that the said houses were very much included within the area of the Corporation. The position was the same right from the establishment of the Corporation in 2002. 8. From all this, it is quite clear that the said three houses which have now been abruptly excluded by the impugned notification, were always included within the Corporation area. Based on such inclusion, right from the year 2002 the Petitioners have been contesting and even on occasions, winning elections to the Corporation. 9. By the impugned notification however, the said three houses came to be excluded by the Director of the Municipal Administration. The impugned notification has been issued in the purported exercise of powers conferred by sub section 2 of Section 9 of the said Act. 10. Section 9 of the said Act reads as follows :- "9. Constitution of Corporation and division of City into wards.- (1) The Corporation shall consist of:- (a) Thirty Councillors directly elected at ward elections; (b) Five nominated Councillors having special knowledge or experience in municipal administration, engineering, architecture, archaeology, heritage, etc., nominated by the State Government by a notification. (2) The "Director of Municipal Administration" with the approval of the State Government shall, from time to time by notification in the Official Gazette, specify for the City the number and boundaries of the wards into which the City shall be divided for the purpose of the ward election of Councillors, and the number of Councillors to be elected for each ward: Provided that, the provisions made under sub-section (1) or notification issued under sub-section (2) shall not have effect until the expiry of the duration of the existing term of the Corporation." 11. Section 9(2) of the said Act, according to us does not empower the Director to alter the Corporation area or to exclude the houses which were already a part of the Corporation area. Section 9(2) of the said Act, according to us does not empower the Director to alter the Corporation area or to exclude the houses which were already a part of the Corporation area. Section 9(2) only empowers the Director, with the approval of the State Government, to specify for the City the number and boundaries of the wards into which the City shall be divided for the purpose of the ward election of councillors and the number of councillors to be elected for each ward. 12. Therefore, in the purported exercise of powers under Section 9(2), the Director had no authority to alter the area of the Corporation or to exclude the houses which were already part of the Corporation area. The Director, has virtually purported to exercise the powers of Legislation and proceed to alter Schedule I to the said Act, when admittedly no such powers are vested in the Director under Section 9(2) of the said Act. No other provision of the said Act was brought to our notice to sustain such exercise of powers by the Director. 13. The learned Advocate General also conceded that there was no power in the Director under Section 9(2) of the said Act to either alter the limits of Corporation area or to exclude the houses which were already part of the Corporation area. However, he did submit that the names of the Petitioners have been included in the rolls of Village Panchayat of Taleigao for the years 2019 and 2020. He submitted that the Petitioners have not protested such inclusion for the last two years even though two elections have taken place in the meanwhile. He submitted that there is no clarity as to whether the said houses form a part of the Panchayat area or the Corporation area. He pointed out that the impugned notification was issued on 4 th February 2021 but this petition was filed only on 1st March 2021 and therefore, according to him, is hit by delay and laches. He invoked the Constitutional bar in Article 243-ZG and submitted that this petition may be dismissed. He also referred to the proviso to Section 1(2) of the said Act to submit that exclusion of areas referred to in Schedule I may be permitted, though, he conceded that the impugned notification has not been made by the State Government under the said proviso. 14. He also referred to the proviso to Section 1(2) of the said Act to submit that exclusion of areas referred to in Schedule I may be permitted, though, he conceded that the impugned notification has not been made by the State Government under the said proviso. 14. The record indicates that no sooner the impugned notification was issued, the Petitioners represented to the Director of Municipal Administration and protested the exclusion. Since there was no response, this petition came to be instituted. Thus, we see no force in the contentions based on delay and laches. Similarly, the inclusion of the Petitioners' names in the Panchayat Rolls cannot be a circumstance to uphold the impugned notification, when admittedly, the Director had no power to alter the Corporation area or exclude the said houses which were very much part of the Corporation area right from its inception. 15. The doubts that were sought to be created on the factual aspect also need not detain us in the wake of overwhelming material on record that the said houses were very much part of the Corporation area right from its inception. Based upon this, the Petitioners have contested and even on occasions succeeded in the elections to the Corporation. In any case, assuming there were some errors, though, there is no material whatsoever to assume so, the same could not have been corrected by the Director by purporting to exercise powers under Section 9(2) of the said Act. Accordingly, we are quite satisfied that the exclusion of the said houses by the impugned notification is ultra vires the powers of the Director under Section 9(2) of the said Act. On the short ground, the exclusion will have to be set aside, and the said houses will have to be restored in the impugned notification dated 4th February 2021. This is in fact restoration of the position which obtained right from the inception of the Corporation. 16. Since, we have held that the Director lacked jurisdiction or powers under Section 9(2) of the said Act to exclude the said houses, we have refrained from going into the contentions relating to malafides etc. 17. This is in fact restoration of the position which obtained right from the inception of the Corporation. 16. Since, we have held that the Director lacked jurisdiction or powers under Section 9(2) of the said Act to exclude the said houses, we have refrained from going into the contentions relating to malafides etc. 17. The learned counsel for the Respondents agreed that if the said houses are included in the impugned notification dated 4th February 2021, then, the names of the Petitioners stand included in the Electoral Rolls form the concerned ward of the Corporation and consequently, the Petitioners, can file their nominations for ensuing elections to be held on 20th March 2021. Admittedly, even the last date for filing nominations is yet to expire. 18. The bar under Article 243-ZG will not apply in the peculiar facts of the present case, particularly since we are, in no manner, interfering with the election process or the election schedule in any manner. The election schedule to proceed as announced by the State Election Commission. 19. Accordingly, the exclusion of house nos. 474, 474A, 475, 475-B is set aside and the said houses to stand included in ward No.1 of Corporation of City of Panaji in the impugned notification dated 4th February 2021. Necessary steps to be taken in accordance with our directions forthwith so that the rights of the Petitioners are not defeated in any manner. In particular, should any of the Petitioners file their nominations within the prescribed period, then, such nominations will not be refused only on the ground that the said houses in which they live had been excluded from the Corporation area vide the impugned notification. 20. The rule in this petition is made absolute to the aforesaid extent. There shall be no order as to costs. 21. All concerned to act based on the authenticated copy of this order.