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2022 DIGILAW 718 (BOM)

Saunsthan Vetal Nachinolkar Nachinolwada v. Mamlatdar And Administrator Of Devalayas Of Bicholim Taluka, Bicholim Goa

2022-03-12

M.S.SONAK

body2022
JUDGMENT M. S. Sonak, J. - Heard Mr. Padgaonkar, learned counsel for the petitioner. 2. Mr. Padgaonkar to begin with states that this is a petition filed by the General Body of the Devalaya or body of Mazania. In the entire petition, there is no averment that this is so. Even otherwise from the cause title, it does not appear to be so. Mr. Padgaonkar himself referred to article 5 of Devasthan Regulation, which also speaks about bodies of members (mazanias) being represented at the Courts and public offices by their ordinary or special attorneys. This petition is not even instituted by the special attorney. There is no resolution produced on record by the General Body or Body of Mazania authorizing the petitioner to institute the present petition. Therefore, this is a serious issue about the very locus standi of the present petition to institute the petition. 3. Besides, it appears that this petition has been filed by the Managing Committee or rather by the President of the Devasthan. The elections to the Managing Committee are scheduled tomorrow i.e. 13.03.2022 at 10.30 a.m. There is no explanation in the petition as to how the Managing Committee can be said to be aggrieved by some additions or deletions from the voters' list. This is not a petition filed by any candidate who claims to be aggrieved. In any case, this matter is not pursued any further and the issue of locus standi can always be kept open. 4. as against the order impugned in this petition, Mr. Padgaonkar very fairly stated that an appeal is provided under article 248 of the Devasthan Regulation. On perusal of para 7 of this petition, it is seen that the petitioner has made the following averments: '7. The Petitioner has no alternate and efficacious legal remedy available on the subject matter of the present petition, and as such, the reliefs prayed for herein, if granted, will be adequate and complete.' 5. This petition was moved by citing extreme urgency. This petition is taken up on non-working day since the registry was informed that there is extreme urgency. However, para 7 of the petition is clearly misleading. 6. Mr. Padgaonkar now says that the impugned order is without jurisdiction and therefore, the bar of alternate remedy should not come in the way of petitioner. This petition is taken up on non-working day since the registry was informed that there is extreme urgency. However, para 7 of the petition is clearly misleading. 6. Mr. Padgaonkar now says that the impugned order is without jurisdiction and therefore, the bar of alternate remedy should not come in the way of petitioner. Even in such a case, it is imperative that the petitioner pleads that he has an alternate remedy under the statute and thereafter explains why such alternate or efficacious remedy is not efficacious. However, it is not proper to plead that the petitioner has no alternate or efficacious remedy available. 7. Even on the aspect of lack of jurisdiction, it is necessary to note something about the conduct of the petitioner. at page 49 of the paper book is the order dated 02.03.2022 made by the Division Bench of this Court in Writ Petition No.95 of 2022 (Filing No.). This order was made after hearing inter alia the petitioner. 8. The order dated 02.03.2022 records that the earlier order/communication dated 24.05.2021 made by the Mamlatdar of Bicholim Taluka was being withdrawn and administrator/Mamlatdar would now hear the petitioner in the said petition as also the respondent No.3 in the said petition ( petitioner herein) and decide the matter afresh in accord with law and on its own merits. Based on this statement, directions were issued to the parties to appear before the Mamlatdar and the Mamlatdar was requested to dispose of the proceedings at the earliest since it was pointed out that the elections were scheduled on 13.03.2022. 9. Now though the petitioner was very much party in the above petition, there was no protest about Mamlatdar having no jurisdiction. This means that if the Mamlatdar had decided in favour of the petitioner, then, no issue of jurisdiction would have been raised. This is not to suggest that any amount of consent can confer jurisdiction upon an authority if such authority inherently lacks such jurisdiction. This is however to only point out the conduct of the petitioner particularly when the petitioner seeks urgent relief ex-parte. 10. Since the petitioner has an alternate remedy in terms of article 248 of the Devasthan Regulation, there is no case made out to entertain the present petition. One of the interim reliefs sought in the petition is to stay the elections scheduled on 13.03.2022. 10. Since the petitioner has an alternate remedy in terms of article 248 of the Devasthan Regulation, there is no case made out to entertain the present petition. One of the interim reliefs sought in the petition is to stay the elections scheduled on 13.03.2022. Normally, such a relief is also not granted unless an extraordinary case is pleaded and made out. 11. If any persons are aggrieved by the result of the elections or manner of its conduct, there are remedies provided under the Devasthan Regulation for questioning the same. For instance in article 30 (Para), it is provided that against the irregularities and nullities of the election, appeal may be filed to the administrative Tribunal within 10 days from the act of election. 12. Thus, by keeping open all the contentions of the petitioner and further without deciding the issue of locus standi, this petition is not entertained primarily because the Devasthan Regulation provides an alternate remedy to question the Mamlatdar's judgment and order dated 11.03.2022. 13. The petition is disposed of on the aforesaid grounds. 14. There shall be no order for costs.