Bombay High CourtWP/261/2023disposed of

Laxmidas Pagi v. Administrator Of Communidade And ANR

2023-11-01Hon'Ble Shri Justice Prakash D. Naik17 pages

Maria S.

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.260 OF 2023 AND WRIT PETITION NO.261 OF 2023 WRIT PETITION NO.1117 OF 2023 (F), WRIT PETITION NO.1072 OF 2023 (F), WRIT PETITION NO.1077 OF 2023(F), WRIT PETITION NO.1053 OF 2023 (F), WRIT PETITION NO.1116 OF 2023 (F), WRIT PETITION NO.1123 OF 2023 (F), WRIT PETITION NO.1056 OF 2023 (F), WRIT PETITION NO.1075 OF 2023 (F), WRIT PETITION NO.1119 OF 2023 (F), WRIT PETITION NO.1071 OF 2023 (F), WRIT PETITION NO.1129 OF 2023 (F), WRIT PETITION NO.1058 OF 2023 (F), WRIT PETITION NO.1080 OF 2023 (F), WRIT PETITION NO.1114 OF 2023 (F), WRIT PETITION NO.1059 OF 2023 (F), WRIT PETITION NO.1054 OF 2023 (F), WRIT PETITION NO.1121 OF 2023 (F), WRIT PETITION NO.1051 OF 2023 (F), WRIT PETITION NO.1076 OF 2023 (F), WRIT PETITION NO.1057 OF 2023 (F), WRIT PETITION NO.1126 OF 2023 (F), WRIT PETITION NO.1079 OF 2023 (F), WRIT PETITION NO.

1018 OF 2023 (F), WRIT PETITION NO.1112 OF 2023 (F), WRIT PETITION NO.1125 OF 2023 (F), WRIT PETITION NO.1130 OF 2023 (F), WRIT PETITION NO.1074 OF 2023 (F), WRIT PETITION NO.1073 OF 2023(F), WRIT PETITION NO.1118 OF 2023 (F), WRIT PETITION NO.1120 OF 2023 (F), WRIT PETITION NO.1127 OF 2023 (F), WRIT PETITION NO.1128 OF 2023 (F), WRIT PETITION NO.1113 OF 2023 (F), WRIT PETITION NO.1061 OF 2023 (F), WRIT PETITION NO.1019 OF 2023 (F), WRIT PETITION NO.

WRIT PETITION NO.1070 OF 2023 (F), WRIT PETITION NO.1122 OF 2023 (F), WRIT PETITION NO.1124 OF 2023 (F), WRIT PETITION NO.1131 OF 2023 (F), WRIT PETITION NO.1017 OF 2023 (F), WRIT PETITION NO.1062 OF 2023 (F), WRIT PETITION NO.1055 OF 2023 (F), WRIT PETITION NO.1078 OF 2023 (F), WRIT PETITION NO.1060 OF 2023 (F), WRIT PETITION NO.1115 OF 2023 (F), WRIT PETITION NO.1132 OF 2023 (F) AND WRIT PETITION NO.263 OF 2023 AND WRIT PETITION NO.1001 OF 2023 (FILING) AND WRIT PETITION NO.1002 OF 2023(FILING) AND WRIT PETITION NO.1832 OF 2023(FILING) WRIT PETITION NO.260 OF 2023 RAMESH ASHOK PAGI ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENTS WRIT PETITION NO.261 OF 2023 LAXMIDAS PAGI ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENTS WRIT PETITION NO.1117 OF 2023 (F) SUMITRA PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1072 OF 2023 (F)

NITIN PAGI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1077 OF 2023 (F) CHANDRAKANT PAGI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1053 OF 2023 (F) MARIA TERESA PEREIRA ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1116 OF 2023 (F) TUKARAM PAGI (DEC) THR.

DURGA PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1123 OF 2023 (F) MAYUR KANKONKAR COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1056 OF 2023 (F) NICOLAU FERNANDES ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT

WRIT PETITION NO.1075 OF 2023 (F) GOKULDAS PAGI THR POA NITESH PAGI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1119 OF 2023 (F) KUNDA BANDEKAR COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1071 OF 2023 (F) NAND KISHORE FALDESSAI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1129 OF 2023 (F) CHAYA PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1058 OF 2023 (F) VIENA FERNANDES THR POA PAULO AGNELO AFONSO ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1080 OF 2023 (F) BICARO PISSOLO NAIK GAONKAR COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ...RESPONDENTS WRIT PETITION NO.1114 OF 2023 (F) KATU FAL DESSAI COMMUNIDADE OF AGONDA, THR.

ITS ATTORNEY AND ANR ...RESPONDENTS

WRIT PETITION NO.1059 OF 2023 (F) NITESH PAGI ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1054 OF 2023 (F) KAVIN AFONSO THR POA TRANGELA FERNANDES ... PETITIONER ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1121 OF 2023 (F) LONEE FERNANDES COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1051 OF 2023 (F) KANE AFONSO THR. POA LYIA FERNANDES ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1076 OF 2023 (F) USHA PAGI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1057 OF 2023 (F)

DENIM SANTANA AFONSO THR. POA FRANSQUINHA SEBASTIANO PEREIRA ... PETITIONER ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1126 OF 2023 (F) ROSHAN PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1079 OF 2023 (F) TIPU PAGI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1018 OF 2023 (F) PRITAM PUNDALIK PAGI ... PETITIONER COMMUNIDADE OF AGONDA THR. ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1112 OF 2023 (F) MARIA VINCENTE FERNANDES COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND 2 ORS ... RESPONDENTS WRIT PETITION NO.1125 OF 2023 (F) SAMEER PAGI COMMUNIDADE OF AGONDA,

THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1130 OF 2023 (F) VATSALA PAGI (DEC) THR. AKASH V.

PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1074 OF 2023 (F) ROHIDAS PAGI ... PETITIONER COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1073 OF 2023 (F) SHILPA NILESH PAGI ... PETITIONER COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1118 OF 2023 (F) AGNELO FERNANDES ... PETITIONER COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1120 OF 2023 (F) RADHIKA PAGI ... PETITIONER COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS

WRIT PETITION NO.1127 OF 2023 (F) RESHMA PAGI, THR. CONST POA, DAYANAND B. PAGI ... PETITIONER COMMUNIDADE OF AGONDA, THR.

ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1128 OF 2023 (F) SURESH PAGI ... PETITIONER COMMUNIDADE OF AGONDA, THR.

ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1113 OF 2023 (F) DELROY PEREIRA, THR. CONST. POA, ANCESSAO E PEREIRA ... PETITIONER COMMUNIDADE OF AGONDA, THR.

ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1061 OF 2023 (F) ALBERTO FERNANDES ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1019 OF 2023 (F) AGNELO STEVAN RODRIGUES COMMUNIDADE OF AGONDA THR.

ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1052 OF 2023 (F) SATENDRA CHANDRAKANT PAGI ... PETITIONER

ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1070 OF 2023 (F) SAVITRI PAGI COMMUNIDADE OF AGONDA THR.

ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1122 OF 2023 (F) SACHIN PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1124 OF 2023 (F) MAHESH PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ...RESPONDENTS WRIT PETITION NO.1131 OF 2023 (F) FRANSQUINHA FERNANDES COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1017 OF 2023 (F) CHITRA PAGI ... PETITIONER COMMUNIDADE OF AGONDA THR.

ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1062 OF 2023 (F)

ELOGINA MARCELINA D COSTA ... PETITIONER ADMINISTRATOR OF COMMUNIDADE AND ANR.

... RESPONDENT WRIT PETITION NO.1055 OF 2023 (F) SANTAN FERNANDES ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1078 OF 2023 (F) UMESH D PAGI COMMUNIDADE OF AGONDA THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1060 OF 2023 (F) OLIVIA AFONSO THR POA SHENYDA FERNANDES ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENT WRIT PETITION NO.1115 OF 2023 (F) TULSI PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS WRIT PETITION NO.1132 OF 2023 (F) SUMITRA PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS AND

WRIT PETITION NO.263 OF 2023 SULBHA GOKULDAS PAGI ADMINISTRATOR OF COMMUNIDADE AND ANR ... RESPONDENTS AND WRIT PETITION NO.1001 OF 2023(FILING) SONALI PAGI COMMUNIDADE OF AGONDA AND ORS.

... RESPONDENTS AND WRIT PETITION NO.1002 OF 2023 (FILING) PANDURANG PAGI COMMUNIDADE OF AGONDA, THR. ITS ATTORNEY AND ANR ... RESPONDENTS AND WRIT PETITION NO.1832 OF 2023 (FILING) SAMEER PAGI THR POA BADAL PAGI COMMUNIDADE OF AGONDA, THR.

ATTORNEY AND ANR ... RESPONDENTS Mr. Ashwin D. Bhobe and Ms. Shaizeen B. Shaikh, Advocate for the petitioner in WP/260/2023, 261/2023, 263/2023, 1059/2023/F, 1053/2023/F, 1054/2023/F, 1062/2023/F, 1051/2023/F, 1057/2023/F, 1061/2023/F, 1060/2023/F, 1058/2023/F, 1052/2023/F, 1056/2023/F, 1055/2023/F.

Mr. Shivan Desai, Mr Varun Bhandankar and Ms. Maria Carmel Cota Viegas, Advocate for the petitioner in WP1017/2023/F, 1018/2023/F, 1019/2023/F, 1070/2023/F, 1071/2023/F, 1072/2023/F, 1073/2023/F, 1074/2023/F, 1075/ 2023/F, 1076/2023/F, 1077/2023/F, 1078/2023/F, 1079/2023/F, 1080/2023/F, 1112/2023/F, 1113/2023/F, 1114/2023/F,

1115/2023/F, 1116/2023/F, 1117/2023/F, 1118/2023/F,1119/2023/F, 1120/ 2023/F, 1121/2023/F, 1122/2023/F,1123/2023/F, 1124/2023/F, 1125/2023/F,1126/2023/F, 1127/2023/F, 1128/2023/F, 1129/2023/F, 1130/2023/F, 1131/2023/F,1132/2023/F, 1001/2023/F, 1002/2023/F and 1832/2023(F).

Mr. Suhas Parab, Additional Government Advocate for State in WP 1072/2023/F, 1075/2023/F, 1074/2023/F, 1080/2023/F, 1116/2023/F, 1120/2023/F, 1126/2023/F, 1132/2023/F, 1113/2023/F, 1117/2023/F, 1061/2023/F, 1076/2023/F, 1127/2023/F, 1058/2023/F, 1115/2023/F. Ms. Akshata Bhat, Additional Government Advocate for the State in WP/1017/2023/F, 1073/2023/F, 1071/2023/F, 1119/2023/F.

Mr. Vishwadh Sardessai, Additional Government Advocate for State in WP/1053/2023/F, 1077/2023/F, 1128/2023/F, 1078/2023/F, 1123/2023/F.

Mr. Geetesh Shetye, Additional Government Advocate for State in WP/1080/2023(F), 1117/2023(F), 1116/2023(F), 1076/2023(F), 1058/2023(F), 1059/2023/F.

Mr. Tukaram Gawas, Additional Government Advocate for State in WP/260/2023, WP/263/2023, WP/1018/2023/F, WP/1113/2023(F), WP/1060/2023/F, WP/1118/2023/F and WP/1002/2023(F).

Mr. Pravin Faldessai, Additional Government Advocate for State in WP/1121/2023/F, 1122/2023/F and 1001/2023/F. Ms. Susan Linhares, Additional Government Advocate for State in WP/1125/2023/F, 1079/2023/F, 1124/2023/F. Ms. Sapna Mordekar, Additional Government Advocate for State in WP/261/2023, 1129/2023/F, 1054/2023/F, 1130/2023/F, 1131/2023/F, 1114/2023/F, 1055/2023/F.

Ms. Sulekha Kamat, Additional Government Advocate for State in WP/1057/2023/F, 1019/2023/F, 1112/2023/F, 1070/2023/F and 1056/23/F.

Mr. Manish Salkar, Government Advocate for State in WP

1052/2023/F, 1051/2023/F and 1832/2023/F.

Mr. Neehal Vernekar, Additional Government Advocate for the State in WP1062/2023/F.

Mr. Shivdatt P. Munj, Additional Government Advocate for the State in WP/1126/2023/F, WP/1132/2023(F) and WP/1115/2023(F).

Mr Anirudh Bipin Salkar, Advocate for Respondent No.1 in WP/1017/2023/F, 1018/2023/F, 1019/2023/F, 1070/2023/F, 1071/2023/F, 1072/2023/F, 1073/2023/F, 1074/2023/F, 1075/ 2023/F, 1076/2023/F, 1077/2023/F, 1078/2023/F, 1079/2023/F, 1080/2023/F, 1112/2023/F, 1113/2023/F, 1114/2023/F, 1115/2023/F, 1116/2023/F, 1117/2023/F, 1118/2023/F, 1119/2023/F, 1120/2023/F, 1121/2023/F, 1122/2023/F, 1123/2023/F, 1124/2023/F, 1125/2023/F, 1126/2023/F, 1127/2023/F, 1128/2023/F, 1129/2023/F, 1130/2023/F, 1131/2023/F, 1132/2023/F, 1001/2023/F, 1002/2023/F and 1832/2023(F) and for Respondent No.2 in WP/260/2023, 261/2023 and WP/263/2023.

_______________________________________

CORAM:

PRAKASH D. NAIK, J DATED :

1st NOVEMBER 2023 __________________________________________________ ORDER:

The petitioners in these petitions have assailed the orders passed by the Administrator of Communidades, South Zone, Margao, whereby the petitioners are directed to vacate and put it to its original position the encroached land within 90 days from the receipt of the order. It is further directed that in case the petitioners fail to obey the order and do not remove the encroachment/structure, then the same shall be removed without giving any further notice and the cost shall be recovered from them.

The impugned orders are passed under Article 371(2) read with Article 372 of the Code of Communidades. The proceedings were initiated on the complaint received from the Attorney of Communidade of Canacona and pursuant to the inspection, a notice under Article 371(2) read with Article 372 was issued to the opponents for encroaching the Communidade land by occupying the area belonging to the Communidade. 3.

Common grounds are urged in all these petitions that the impugned order is cryptic and reflects non-application of mind. All the orders are identical/stereotyped which itself indicate that the orders were passed mechanically. The petitioners are occupying the structures/property since last several years. The petitioners are in possession of the documents in support of their claim that they are occupying the said premises for decades. The Administrator has not appreciated the documents in support of the petitioners' claim. Identical orders were passed in about 50 matters. The reply filed by the petitioners disclose their right supported with documentary evidence. The respondent no.1 was required to deal with the subject matter of the proceedings in a judicious manner.

Section 371 and 372 of the Code of Communidades makes provision for summary eviction. Power of summary eviction is vested in Director of Civil Administration. The subject matter of the notice does not come within the purview of Section 371 and 372 of Code of Communidade. Some of the petitioners have initiated civil proceedings before the competent Court which are pending. There is violation of principle of natural justice. The impugned order does not provide proper reasoning.

are silent about the defence of the persons against whom action is sought. The Communidade had consented for occupation of the premises. The petitioners are residing for decades in the subject premises. After complaint of Attorney, action is initiated by the Administrator of Communidade. Personal hearing is required to be given to the petitioners.

Learned advocate Mr Shivan Desai has relied upon the decisions in the case of Champabai w/o Shankarrao Patwari and another v/s. State of Maharashtra and others1. and the decision in the case of Vidyaprasarak Samaj and another v/s. State of Goa and others2. Reliance is also placed on the order dated 31.05.2022 passed by the Supreme Court in the case of Harsh R. Kilachand & Anr v/s. State of Uttarakhand & Ors3.

Learned advocate for the Communidade and learned Additional Government Advocates for the Administrator of Communidade in respective petitions have submitted that the petitioners have no right to claim or possess the property belonging to the Communidade. There is no infirmity in the impugned orders. The orders contain reasons. The parties failed to produce title documents. The judgments relied upon by the petitioners are not applicable to the present case. The petitioners could not establish their right in respect to their property. The property belongs to Communidade. The 1 [2004(1) Mh.L.J.

2 [1992 Mh.L.J.

3 Criminal Appeal No.886 of 2022 dated 31.05.2022

petitioners are occupying the property unauthorisedly. The impugned orders clearly mention that the opponents have not produced any documents to substantiate property right or ownership rights over the property. Their occupation is illegal and amounts to encroachment and criminal trespass. The opponents had not followed the procedure as required under the Code to substantiate their claim of occupation. Reliance is placed on the decision in the case of Mr Sandesh B. Naik and another v/s. Mormugao Municipal Council4 and another decision in the case of Gaurish Naik v/s. State of Goa and Others5 .

It is apparent that several orders are passed by the Administrator of Communidade of South Zone, Margao, in several proceedings. The orders are identical. Although this Court is not giving any finding in respect of the claim of the petitioners, from their contention it appears that according to them they are in possession of the property since last several years and they are relying upon the documents in support of their claim. The orders are passed mechanically with identical observations in all the orders. The impugned orders were almost in cyclostyled form. The orders reflect non-application of mind. Hence, the impugned orders can be set aside by directing the Administrator of Coommunidades to decide the proceedings after giving personal hearing to the petitioners. 4 2017 G.L.D. OnLine 3586 5 2023 G.L.D. OnLine 3604

ORDER

The writ petitions are allowed and disposed of. The impugned orders passed by the Administrator of Communidades which are challenged in all the petitions are quashed and set aside.

(III) The parties are directed to appear before the Administrator of Communidades on 05.12.2023 at 03:00PM.

(IV) The Administrator of Communidades shall decide the proceedings by giving personal hearing to the petitioners and pass fresh orders within a period of 6 months. (V) It is clarified that no separate notice will be given to the parties for appearing before the Administrator of Communidades.

(VI) It is made clear that this Court has not adjudicated the issues on merits and the Administrator of Communidades shall decide the proceedings on merits and in accordance with law.

(VII) The petitions stand disposed of.

(PRAKASH D. NAIK, J.)) Date: 2023.11.04 17:33:35 +05'30'

MARIA SUZANA REBELLO