Allowed

Mr. Agnelo Caridade Lobo, Major in Age. v. Administrator of Communidades of North Zone. and 3 Ors.

Bombay HC14 Feb 2014WP/83/2014

Case brief

AI extract

What is this about?

Petitioner challenged the deletion of his name from the list of able components for an election to a Comunidade of Serula. The court held the impugned order was arbitrary and without jurisdiction as no code provision disqualifies him based on the cited grounds. The writ petition was allowed.

What did the court decide?

The impugned order dated 10/02/2014 deleting the petitioner's name from the able components' list was quashed and set aside.

Mr. Agnelo Caridade Lobo, Major in Age. Vs… — Cooperative Societies | Bombay HC (2014)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 83 of 2014

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Mr. Agnelo Caridade Lobo, Major in age, r/o House No. 67/5, Vaddem, Socorro, Bardez - Goa. ... PETITIONER. V/S. 1. Administrator of Communidades of North Zone, Opp. Tar Hospital, Mapusa, Bardez-Goa. 2. Mr. Miguel Vaz, Major in age, r/o. H. No. 81, Vaddem, Socorro, Bardez-Goa. 3. The Managing Committee, through the Attorney, Communidade of Serula, WestCoast Residency, 1^st Floor, AltoPorvorim, Bardez-Goa. 4. The Escrivao, Administrator of Communidades of North Zone, Communidade of Serula, Opp. Tar Hospital, Mapusa, Bardez Goa. . RESPONDENTS.

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Mr. Y. V. Nadkarni with Mr. N. Noronha, Advocates for the petitioner.

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Mr. S. S. Kantak, Senior Advocate with Mr. A. Kamat, Advocate for respondent no. 2.

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Mr. A. D. Bhobe, Advocate for respondent no. 3.

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Respondent no. 4 in person.

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CORAM :- U. V. BAKRE, J.

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Reserved on : 13th February, 2014

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Pronounced on : 14th February, 2014

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JUDGMENT :

Heard Mr. Nadkarni, learned Counsel appearing on behalf of the petitioner, Mr. Kantak, learned Senior Counsel appearing on behalf of respondent no. 2 and Mr. Bhobe, learned Counsel for respondent no. 3.

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2. Rule. Rule is made returnable forthwith. By consent of the parties, heard forthwith.

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3. By this petition, the petitioner has taken exception to the order dated 10/02/2014 passed by respondent no. 1 in case No. ACNZ/SER-COMM/ELEN/35/2014/14.

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4. The general elections to the Managing Committee of the Comunidade of Serula, for the Triennium 2013-2016, were scheduled to be held from 02/12/2012 onwards. However, the said elections could not be held on the scheduled time and the State Government postponed the elections on the ground of allegations and irregularities concerning the voters' list. A Writ Petition No. 74/2013 was filed in which by order dated18/9/2013, the Division Bench of this Court directed the present respondent

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no. 1 to hold the elections to the Managing Committee of Serula Comunidade for the Triennium 2013-2016 on or before 31/12/2013. The respondent no. 1 was further directed to prepare the voters' list in accordance with law. In Miscellaneous Civil Application No.1020/2013 subsequently filed by respondent no.1 in that writ petition, extension of time of six weeks as from 31/12/2013 was granted to complete the election process in all respects on or before 15/02/2014. Pursuant to the said order of the Division Bench of this Court, respondent no.1 prepared the voters' list and able components' list and the same were published on 15/01/2014 for inviting claims and objections. Vide communication dated 20/01/2014, respondent no. 2 filed objections before respondent no. 1, inter alia, against inclusion of the name of petitioner, a share holder of the comunidade, in the list of able components.

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5. In the said communication dated 20/01/2014, respondent no. 2 alleged that the petitioner is quite old and is a sick person suffering from paralysis and is not in a position to walk and talk and his hand is trembling while signing any papers and he is not in a position to perform his duties if elected in his present condition, in the Comunidade of Serula or to contest election of the Comunidade. It was further alleged that the

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Comunidade of Serula has a huge area consisting of three and half villages namely: Salvador do Mundo; Soccoro; Penha de France and part of Pomburpa and the person, who gets elected in the election, should be able and fit to run the affairs of the said Comunidade as he has to do site inspections, verify illegal constructions, encroachments etc. and the petitioner will not be able to attend and to do full-fledged work for the Comunidade of Serula, due to his ill health.

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6. Vide notification dated 23/01/2014 published in the official gazette dated 24/01/2014, respondent no. 1 notified that the elections to the Managing Committee of the Comunidade of Serula for Triennium 2013-2016 would be held on 16/02/2014. A detailed program of election has been set out in the said notification.

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7. The petitioner filed his reply-cum-written arguments dated 27/01/2014 to said objections filed by respondent no. 2, before the respondent no.1 thereby alleging that there is no illegality in the list of able components prepared in terms of Article 42 of the Code of Comunidade ('the Code' for short). The petitioner denied that he is not in a position to perform his duties if elected in his present condition. He specifically stated that he

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is physically and mentally fit to discharge his routine duties and that this has been certified by Dr. Anthony Fernandes. He submitted that absolutely no material has been placed on record to show that the petitioner is old and sick person suffering from paralysis or that he is not in a position to walk and talk and that his hand is trembling while signing papers. It was alleged that the objections filed by respondent no. 2 do not come within the disqualification as contained in Article 29 of the Code. The judgment of this Court in the case of “ Shri “ Francisco Casimiro Jeronimo Agnelo Pinto e Souza Vs. State of Goa and 8 others”(Writ Petition No. 199/1989) reported in 1991(1) Goa L.T. 152 was cited to support the contention that all those components and members of the Comunidade, who are not disqualified under Article 29, are able components. It was further alleged that in Writ Petition No. 280/1992 in the matter of “Gopal Dattu Pai Vs. Administrator of Comunidade of Bardez” , the term 'able components' as explained in Writ Petition No. 199/1989 was adopted.

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8. Respondent no. 2, then, filed his rejoinder dated 312/01/2014, dealing in detail with the reply-cum-written arguments filed by the petitioner and reiterating his objections. Inter alia, it was alleged that Cerebral Vascular Accident (CVA)

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means a stroke due to internal hemorrhage caused by rupture of arteries in the brain and essential result of the same is paralysis, mostly of one side and the same is a progressively degenerating condition. It was further alleged that the petitioner should be referred to Goa Medical College for examination and report. It was further urged that the certificate of Dr. Fernandes, a general practitioner, cannot be considered.

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9. By order dated 10/02/2014, respondent no.1 allowed the objection application dated 20/01/2014 of the respondent no. 2 and directed that the name of the petitioner- shareholder, shall be deleted from the able components' list at Serial No. 65 which was published on 15/01/2014. Respondent no. 1 undertook the exercise of inviting the claims and objections in terms of the provisions of Article 49 read with Article 125 of the Code. The term 'able' referred to in Article 42 of the Code has been interpreted by respondent no.1 to mean one's ability to perform efficiently in a given situation and that in a wider sense, the term 'able component' denotes one's ability and efficacy to discharge the duties of the Administrative Board as envisaged in the Code. He held that the component in the able components' list should be competent enough to discharge his duty both physically as well as mentally and, therefore, the able components' list shall consists of

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only those components, who are capable to shoulder the responsibility of the Administrative Board, if elected or appointed thereto. Respondent no. 1 incorporated the provisions of the Code pertaining to the composition of the Managing Committee and powers and duties of the President, Attorney and Cashier of the Managing Committee. He held that in order to assist the Board to carry out various responsibilities in an effective manner, the components, who are manning the Board, should be diligent and efficient to shoulder the responsibility of the Board. He formulated the point for consideration as to whether the inclusion of name of the petitioner in able components' list is justified and answered the same in negative. He held that the medical certificate dated 08/01/2013 produced by the petitioner shows that the petitioner is suffering from Diabetes Mellitus with hypertension with Hemiparesis (Right) (old case of Cerebro Vascular Accident = CVA). He held that from the own admission of the petitioner, it is evident that he is sick person and, therefore, there cannot be any hesitation for deleting his name from the list. He further held that the said medical certificate does not clarify that the petitioner is physically and mentally fit to administer the affairs of the Comunidade. It has been pointed out that in Inventory Proceedings No. 47/1997/A, the petitioner was one of the interested parties and had applied for being appointed as

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Cabeca de Casal. By order dated 14/11/2013, the application was not allowed. It is observed by respondent no. 1 that from the observations made in that order, it is clear that petitioner is not a fit person to administer the family estate left by the deceased predecessor-in-title and, therefore, one can conclude that a person, who has been declared to be unfit to administer the estate of his own family, would not be in a position to administer the estate of Comunidade. Respondent no.1 further found that a charge-sheet no. 204/13 dated 02/09/2013 for offences punishable under Sections 447, 504, 324, 427, 506, 341 read with Section 34 of the I.P.C. has been filed by Mapusa Police Station against the petitioner and others and that the Administrator by order dated ACNZ/2003-04/204 had issued sanction to file FIR against the petitioner and others for misappropriation, siphoning and cheating of huge amount of over Rs. 50 Lakhs belonging to the Comunidade of Serula. Respondent no.1 held that the above speaks in volume on the conduct of the petitioner. He held that the conduct of the petitioner is highly objectionable. He held that considering the facts and circumstances of the case, it cannot be said that the petitioner satisfies the requirement of able component and, therefore, the citation reported in 1991(1) Goa L.T. 152 does not help the petitioner in any manner whatsoever. Allegedly, considering that the welfare of the Comunidade is

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paramount consideration for preparing the list of able components, respondent no. 1 held that the conduct of the petitioner was not brought on record while preparing the able components' list. The name of the petitioner was, thus ordered to be deleted from the able components' list. The above order of respondent no.1 is impugned in the present petition.

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10. At the outset, Mr. Kantak, learned Senior Counsel appearing on behalf of respondent no. 2 raised a preliminary objection alleging that the list of able components was prepared under Article 42 of the Code and respondent no. 2 had filed objections/appeal against the said list under Article 43 of the Code and that the appeal against the order of the Administrator lies to the Administrative Tribunal. Mr. Kantak, learned Senior Counsel, therefore, urged that since there is efficacious alternate remedy available to the petitioner, the present writ petition should not be considered by this Court.

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11. With regard to the above preliminary objection, Mr. Nadkarni, learned Counsel appearing on behalf of the petitioner, submitted that respondent no. 1 has exercised powers under Article 125(21) of the Code. He further submitted that in terms of Article 42 of the Code, the Registrar and the Attorney of the

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Comunidade had to prepare the list of able components and in that case, the appeal against the list prepared by them can be instituted before the Administrator. He further submitted that in Writ Petition No.74/2013, this Court directed respondent no.1 himself to prepare the list of able components. He contended that since the Administrator himself had prepared the list, an appeal against that list cannot lie before himself. He submitted that therefore the Registrar had considered the objections of respondent no. 2 under Article 125(21) of the Code. He submitted that in the circumstances above, the question of approaching the Administrative Tribunal against the impugned order, under Article 44 of the Code, does not arise. He further pointed out from the objections filed by respondent no. 2 that it is nowhere mentioned that the same are under Article 43 of the Code. In the alternative, he also added that even if alternate remedy was available, this Court, in appropriate cases, can exercise its powers under writ jurisdiction. He submitted that respondent no.1 himself had prepared the list and, therefore, he invoked his powers under Article 125(21) of the Code. He pointed out that in terms of Article 126 of the Code, the decision of the Administrator is subject to appeal provided by law. He submitted that since no appeal is provided for in the Code against the decision of the Administrator made under Article 125(21) of the

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Code, the writ petition lies.

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12. On merits, learned Counsel appearing on behalf of the petitioner, submitted that before 1998, in terms of Article 42 of the Code, two lists were required to be prepared every three years by 31^st August by the Clerk and Attorney of the Comunidade. He submitted that the said Article 42 was amended in the year 1998 and as per the amended provision, only one list and that is of able components is required to be prepared. He invited my attention to the requirements to be fulfilled for being included in the said list. He submitted that as per this amended Article 42, there is no requirement of physical fitness. He then invited my attention to Article 29 of the Code and pointed out eight categories of persons mentioned therein who cannot be voted for or appointed for the posts in the Comunidade. He then pointed out to Article 69 of the Code which provides an option to the member of Managing Committee to seek exemption, if he wants to give up the post. He submitted that though the Code does not define the words 'able component', however, the same has been explained by this High Court in the case of “ Francisco Casimiro Jeronimo ”(supra). He submitted that those 'components' or members of the Comunidade who are not disqualified as per Article 29 of the Code, are “able components”,

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able to be appointed or elected to the post in the Comunidade, as the case may be. He submitted that the case of the petitioner does not fall in any of the eight categories mentioned in Article 29 of the Code. According to him, therefore, the impugned order deleting the name of the petitioner from able components' list, is arbitrary, perverse, without jurisdiction and unsustainable. Without prejudice to the above, Mr. Nadkarni, learned Counsel appearing on behalf of the petitioner further submitted that even otherwise, the petitioner has produced a medical certificate of a private Doctor, who had certified that the petitioner is physically and mentally fit to discharge his routine duties. He urged that the conduct of the petitioner on the ground that he was not appointed as Cabeca de Casal in Inventory Proceedings and that F.I.R. has been registered against him, are irrelevant facts which cannot come in the way of the petitioner for being deleted from the list of able components. He submitted that the impugned order is totally contrary to what has been decided by this Court in the case of “ Francisco Casimiro Jeronimo ”(supra) which has been followed subsequently in the case of “ Comunidade of Pilerne Vs. Somakant Laxman Pilernekar” in W. P. No. 175/2013 along with other writ petitions. According to the learned Counsel, the impugned order is patently illegal and perverse and will lead to chaos, if allowed to remain. He,

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therefore, submitted that the impugned order be quashed and set aside.

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13. On the other hand, Mr. Kantak, learned Senior Counsel appearing on behalf of the respondent no. 2, submitted that Article 125 of the Code merely provides for procedure and it is not a substantive provision against which an appeal can lie. He reiterated his submission that appeal against the impugned order lies to the Administrative Tribunal. He further submitted that considering the provisions of the Code, where fixed time limits have been prescribed and Administrative Tribunal has to decide the appeal within eight days, it goes without saying that no interim relief can be granted in the matter of elections. He submitted that once the election process is set in motion, the said process cannot be stopped. He submitted that no stay of disqualification is contemplated in the Code. According to the learned Senior Counsel, Article 29 of the Code cannot be held to be exhaustive and that some of the instances for disqualification are mentioned thereunder, but there can be more cases also. For example, he questioned whether a certified lunatic can become a Committee Member. He then pointed out that clause (2) of Article 29 provides that an interdicted person cannot be voted for or appointed to the posts. He submitted that respondent no.1 has

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interdicted/prohibited the petitioner under Article 29 of the Code. He then pointed out that the medical certificate produced by the petitioner was one year old and that the sickness of Cerebro Vascular Accident is a sickness which progressively degenerates and, therefore, the present position of the petitioner would be worst. He further submitted that there are serious allegations of misappropriation and cheating against the petitioner and he is a person, who has been ordered to be not fit to administer the family estate. He questioned as to how a person, who is seriously ill and cannot walk properly and cannot write and whose conduct is questionable can be a member of the Managing Committee. The learned Senior Counsel pointed out that Article 69 of the Code, though provides for exemption after the election, however, the said exemption is contemplated in the event of sickness and, therefore, this condition of sickness can also be read in Article 29 of the Code. He submitted that the facts and circumstances in the case of “ Francisco Casimiro Jeronimo ”(supra) are different since there the name of the person was not figuring in the list of able components and his contention was that he was not disqualified. In all the circumstances above, the learned Senior Counsel appearing on behalf of the respondent no. 2 urged that the petition is bound to fail and, therefore, be dismissed.

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14. I have gone through the material made available to me. I have considered the submissions advanced by the learned Counsel for the parties and I have also considered the judgments relied upon by them.

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15. The first point which arises for determination is whether there is alternate efficacious remedy for the petitioner due to which this Court ought not to consider the present petition.

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16. Before proceeding further, it would be advantageous to quote the relevant provisions of the Code.

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(a) Article 42 of the Code provides as under :

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“ For the purpose of formation of the board, the registrar and the attorney of the Comunidade shall prepare, every three years, before the 31^st August, a list of all the able components, in view of the accounts of last three years and books of inscriptions of “Jonoeiros” and shareholders, in accordance with the conditions laid down in this Code.

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§ 1. The list shall contain:

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a. The serial No.

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b. The name of the component.

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c. Whether he is shareholder or “Jonoeiro”.

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d. Residence.

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e. Age, when available.

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f. Relationship up to the 3^rd degree with the

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different components, if any.

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g. Number of shares, in case of shareholder or the social interest that falls due to each “Jonoeiro” per share.

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h. Academic qualifications possessed by the component.

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§ 2. When, for the preparation of the list of twenty major components there are two or more components with the same social interest and all of them cannot belong to the same list, the more aged out of them will be enlisted until attaining the total No. of 20.

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§ 3. The documents that the interested parties shall produce for the purpose of item (h) above shall be returned after the list referred to in preceding is approved. ”

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(b) Article 43 of the Code provides as under :

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“Art. 43 – Once the lists are exhibited to the public during 8 days with effect from the 2^nd September, and once its copies are affixed at the gate of the meeting placed of the board and of the temples of any religion existing in the village, appeal may be instituted to the Administrator in ordinary paper within equal time-limit.”

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(c) Article 44 of the Code provides as under :

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“Article 44 - The administrator shall give his decision, within the fixed period of five days,

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without fail, and the said decision shall be made public in the entry book of the administration office, against which an appeal may be filed, also on plain paper, to the Administrative Tribunal, within the period of eight days. This appeal shall also be decided within eight days.

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§ 1. The appeal is exempted from the payment of cost and stamp fees.

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§ 2. Once the decision is given, the secretary of the Administrative Tribunal shall immediately send a copy of the judgment to the respective administrator of comunidade, for compliance.”

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(d) Article 125(21) of the Code provides as under :

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“Art. 125(21).- The Administrator of Comunidades has powers to take notice and decide all the applications, complaints and appeals instituted against the acts that are not within the competence of higher authorities and offer his say on all the cases which have to be sent for a decision of the Governor General or the Administrative Tribunal;”

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17. From the above provisions of the Code, it can be understood that the list of able components has to be prepared by the Registrar and the Attorney of the Comunidade, under Article 42. Once such list is publicly exhibited, if there are any objections to the same, appeal can be instituted before the

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Administrator, under Article 43. Against the order of the Administrator made under Article 43 of the Code, appeal can be filed to the Administrative Tribunal. In the present case, it so happens that in view of the directions given by this Court in Writ Petition No. 74/2013, the Administrator himself had to prepare the list of able components. Indisputably, the list of able components in the present case has been prepared by respondent no.1. Objections were raised by the respondent no. 2 to the said list, however, without mentioning the Article of the Code under which they were lodged. Since the list was prepared by the Administrator himself, the question of hearing appeal against the said list, under Article 44 by the Administrator himself, did not arise as he cannot sit in appeal against his own decision. In these peculiar circumstances, respondent no. 1 has specifically mentioned in the impugned order that he considered the objections filed by respondent no. 2 under the provisions of Article 125(21). Therefore, the impugned order is not passed by respondent no.1 under Article 44 of the Code, due to which, the question of petitioner filing appeal under Article 44 before the Administrative Tribunal, does not arise. In my view, therefore, in such peculiar circumstances, since no appeal is provided under the Code, against any order passed by the Administrator by exercise of the powers under Article 125(21) of the Code, the

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petitioner has rightly approached this Court by way of writ petition. The contention of the learned Senior Counsel that Article 125 of the Code merely prescribes the procedure and, therefore, there cannot be any appeal available in the exercise of any power under Article 125 of the Code, is not acceptable. Article 126 of the Code specifically provides that the decisions of the Administrator are subject to appeals provided by law. Since the list was prepared by the respondent no. 1, there was no other authority under the Code to hear the objections against the said list. Since the respondent no. 1 decided the objections under Article 125(21) of the Code and since no appeal is provided for against the decision taken by the administrator under Article 125 of the Code, the question of filing appeal to the Administrative Tribunal, does not arise.

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18. Be that as it may, there can be no dispute that if an order is passed without jurisdiction, the same can be challenged in writ petition without exhausting alternate remedies. It is well settled that the existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which the Court entertaining an application under Article 226 of the Constitution will consider for exercising the discretion to issue a writ under Article 226, but the existence of such remedy does not impinge

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upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so. The jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative remedies, is not affected, in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

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19. In the circumstance above, I hold that there is no substance in the preliminary objection raised by the learned Senior Counsel for the respondent no. 1.

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20. The next question is whether the petitioner was liable to be disqualified. Disqualification of the persons who are components of the Comunidade to be appointed for the posts in the Comunidade is covered by Article 29 of the Code, which says as under :

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“Article 29 – The following cannot be either voted for or appointed for the posts in the comunidade :

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The shareholders, whose income in the comunidade , when the same is composed also of members by birth (zonnkars), is not, at least, equivalent to the minimum quota belonging to any of

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the zonnkars and, in the comunidades, exclusively comprised of shareholders, when the number of shares is greater than 500, those who do not possess, at least, five shares;

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The non-emancipated minors and the interdicted;

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Those who are indicted on the final judgment that has become definitive and those who have been sentenced for the crimes referred to in paragraph 4 of article 12, of Overseas Civil Services Statute ( Estatuto do Funcionalismo Ultramarino);

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The debtors to the comunidade or to subrogees, of the later, held as such, against whom a suit or execution is pending or even against whom a note of payment of debt in current account has been served;

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The employees of the cadre of the civil administration, the members and employees of the Administrative Tribunal and the subordinate officials to the administrator;

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The relatives of the administrator up to the 3rd degree;

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The members of comunidade of either sex who may not know to read or write and count in Portuguese;

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The foreigners.

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§ 1. The condition referred to in No.7 may be waived in the talukas of Ponda, Bicholim, Quepem, Pernem, Sanguem and Canacona, where voting or appointment shall be made of persons who have knowledge of Marathi, excepting, in regard to the post of president of managing committee, whose

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incumbent should have at least passed 4^th standard of primary education in Portuguese language.

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§ 2. The relaxation referred to in paragraph 2 of preceding article is applicable to the clause 8 of this article.”

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21. Thus, there are eight categories of shareholders mentioned in Article 29 of the Code who cannot be voted for or appointed for the post in Comunidade. In the case of “ Francisco Casimiro Jeronimo ” (supra), it has been held by a Division bench of this Court that a member of Comunidade, who is not on the list of able components, is not eligible for being appointed as President of the Managing Committee of the Comunidade. It has been further held that the term 'able components' has not been defined in the Code and that Article 29 of the Code prescribes grounds of disqualification of persons seeking election or appointment to the posts existing in the Comunidade. It has been held that those “components” or members of the Comunidade, who are not so disqualified are “able components”, able to be appointed or elected to the post in Comunidade as the case may be. Subsequently, in Writ Petitions No. 175, 176 and 177 of 2013 filed by Comunidade of Pilerne, a learned Single Judge of this Court, vide judgment dated 28/10/2013, has observed thus :

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“The aspect of disqualification is covered by Article 29 which provides that the persons appearing in clauses 1 to 8 of the said Article cannot be either voted for or appointed for the post in the Communidade. The said disqualified persons are the shareholders, whose income in the Communidade, when the same is composed also of members by birth (zonnkars) is not at least equivalent to the minimum quota belonging to any of the zonncars and, the nonemancipated minors and the interdicted, those who are indicted on the final judgment that has become definitive, the debtors to the Communidade or to subrogees, of the later, the employees of the cadre of the civil administration, the members of the Administrative Tribunal, the relatives of the administrator up to the third degree, the members of the Communidade of either sex who may not know to read or write in Portuguese and the foreigners.”

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22. There is nothing in Article 29 of the Code precluding a shareholder from being elected to the Managing Committee of Comunidade on the ground of sickness or on the ground of bad conduct, or on the ground of merely being charge-sheeted, etc. We need not go into the aspect of extreme case of a certified lunatic to find out whether such person can be a Committee Member. In the present case, admittedly, the petitioner is not a certified lunatic.

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23. Firstly, it was alleged that the petitioner is quite old and is a sick person suffering from paralysis and that he is not in a position to walk and talk and that his hand is trembling while signing any papers. It was further alleged that the Comunidade of Serula is of huge area consisting of 3 and half villages and that a person elected should be able and fit to run the affairs of the said Comunidade as he has to do site inspection, verify illegal constructions and encroachments, etc. and that the petitioner will not be able to do such work. There is no condition in the Code saying that the shareholder, in order to take part in the election, should be an able and fit person to attend full-fledged work for huge areas. Admittedly, there is also no age limit prescribed in the Code for taking part in the election. There was absolutely no evidence produced by respondent no. 2 to establish that the petitioner is a seriously sick person and suffering from paralysis and is not in a position to walk and talk and that his hand is trembling while signing any papers. Incidentally, as pointed out by learned Counsel appearing on behalf of the petitioner, a perusal of the present petition reveals that the petitioner, who is from Vaddem, Soccoro, Bardez, Goa, travelled all the way to this Court and signed the petition as also verified the same.

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24. Besides the above, the petitioner had produced before the respondent no. 1 a medical certificate of a private Doctor, namely Dr. Anthony Fernandes, who is admittedly a registered medical practitioner, certifying that the petitioner is physically and mentally fit to discharge his routine duties. No doubt, the petitioner, in terms of the medical certificate issued by Dr. Fernandes, is a case of Diabetes Mellitus with hyper-tension with Hemiparesis (Right) (old case of Cerebro Vascular Accident= CVA). There is nothing in Code showing that a person having Diabetes or hyper-tension or hemiparesis, cannot be an able component and contest the election. It was contended by the learned Senior Counsel appearing on behalf of respondent no. 2 that in the disease of Cerebro Vascular Accident there is progressive degeneration and, therefore, the petitioner ought to have produced the recent medical certificate than the one, which is more than one year old. In this regard, respondent no. 2 has not produced any certificate of registered medical practitioner certifying that the case of CVA is a progressively degenerating condition or that the physical condition becomes worst day by day. The learned Senior Counsel has not also produced before this Court any recognised medical book saying so. The objections were filed by respondent no. 2 on 20/01/2014. There was possibility that respondent no. 2 would have said that a

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manipulated medical certificate is produced, if the same was of the date after 20/01/2014. Since, the medical certificate is dated 08/01/2013, it can be said that the same should be genuine. In any case, it was for respondent no. 2 to establish that the petitioner was not 'able component', since the petitioner was already included in the list of able components and it was respondent no. 2, who had subsequently taken objection to the same.

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25. Respondent no.1 has observed in the impugned order that it is not clear from the medical certificate that respondent no.1 is physically and mentally fit to administer the affairs of the Comunidade. It is not understood as to how respondent no. 2 has expected a medical practitioner to know as to what are the affairs of a Comunidade for him to specify in the certificate that the person is physically and mentally fit to administer the affairs of the Comunidade. Merely because the petitioner is sick person, that does not mean that he is not able component. It is true that Article 69 of the Code, inter alia, provides that the members of the Managing committee appointed or elected, cannot decline the post unless they obtain exemption from the Governor. Such exemption can, inter alia, be obtained if the age of the member crosses 67 years or if a member suffers from diseases, which

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prevent him from discharging the respective functions, etc. It is not the case of respondent no. 2 that the petitioner is more than 67 years old. If the petitioner crosses the age of 67 years or, at any time, suffers from any diseases, which would prevent him from discharging the function, then, it would be for the petitioner himself to obtain exemption from Governor. The question of reading the provisions of Article 69 into Article 29 of the Code does not appear to be proper, since nothing had prevented the makers of the Code to include the condition of particular kind of sicknesses in Article 29 itself.

¶118

26. Merely because in inventory proceedings bearing no. 47/1997/A, the petitioner was found to be not a fit person to administer the family estate left by the deceased predecessor-intitle, he cannot be held to be liable to be disqualified from being in the list of able components. Inventory proceedings are personal matters of family, which have nothing to do with the affairs of the Comunidade.

¶119

27. There is nothing in the Code prescribing a particular code of conduct so as to become entitled to contest the elections or to be disqualified from being voted for or appointed to any post. Merely because a charge-sheet has been filed against the

¶120

… 28 …

¶121

petitioner for alleged misappropriation, siphoning and cheating the huge amount of over Rs. 50 Lakhs, by Mapusa Police Station against the petitioner and others, that cannot mean that the petitioner is a proved criminal. It is not the case of respondent no. 2 that the petitioner has been convicted in any serious offence. Even otherwise, Article 29 does not contain any clause showing that if a person is charged for any offences, he would be liable to be disqualified.

¶122

28. It was contended by the learned Senior Counsel appearing on behalf of respondent no. 2 that clause (2) of Article 29 provides that the non-emancipated minors and interdicted persons cannot either be voted or appointed for the posts in Comunidade. He submitted that the word 'interdicted' means prohibited. He, therefore, submitted that the petitioner has been interdicted by the respondent by virtue of Article 29(2) of the Code and, therefore, it cannot be said that the disqualification is without there being any provision in the Code. In this regard, the learned Counsel appearing on behalf of the petitioner produced the extract from Black's dictionary which gives the meaning of “interdict” as a prohibitory decree. In the present case, there is no previous order or decree by any authority prohibiting the petitioner from being there in the able components' list.

¶123

WP83/14

¶124

… 29 …

¶125

Therefore, the petitioner was not an interdicted person for being disqualified after inclusion in the list.

¶126

29. Mr. Kantak, learned Senior Counsel appearing on behalf of respondent no. 2, relied upon “ Shri Sant Janardan Swami (Maungiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others ”, [(2001)8 SC 509], wherein it has been held by the Apex Court that in view of the finding that preparation of electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, the High Court should not stay the continuation of the election process, even though there may be some alleged illegalities or breach of rules while preparing the electoral roll. In the present case, the question of staying the continuation of election process does not at all arise, since the learned Division Bench of this Court in Writ Petition No.74/2013 had directed respondent no.1 to hold elections for Triennium 2013-2016 on or before 31/12/2013, and subsequently, by order dated 12/12/2013, granted extension for a period of six weeks from 31/12/2013 by making it clear that the respondent no.1 shall ensure that the election process is complete in all respect on or before 15/02/2014 and that no further extension will be granted

WP83/14

… 30 …

on any count.

30 . In all the circumstances above, the impugned order passed by respondent no.1 thereby deleting the name of the petitioner from able components' list is totally arbitrary, perverse and is patently illegal being without jurisdiction and as rightly submitted by Mr. Nadkarni, learned Counsel for the petitioner, the same is likely to lead to chaos, if allowed to remain on books.

¶131

31. In the result, the petition is allowed.

¶132

(a) The impugned order dated 10/02/2014 passed by respondent no.1 in case No. ACNZ/SERCOMM/ELEN/35/2014/14 is quashed and set aside.

¶133

(b) Rule is made absolute in the aforesaid terms.

¶134

32. The petition stands disposed of, with no order as to costs, in the facts and circumstances of the case.

¶135

U. V. BAKRE, J.

¶136

33 . Parties to act on the authenticated copy of the order.

¶137

SMA

Mr. Agnelo Caridade Lobo, Major in Age. v. Administrator of Communidades of North Zone. and 3 Ors.

Case brief

What is this about?

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Mr. Agnelo Caridade Lobo, Major in Age. v. Administrator of Communidades of North Zone. and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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