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IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK & BHARATI H. DANGRE, JJ.
Raghupati R. Bhandari & Another – Appellant
Versus
Comunidade of Bandora & Others – Respondents
First Appeal No. 250 of 2009
Decided On : 08-02-2021
The Comunidade of Bandora (Comunidade) filed a Special Civil Suit No.7/1999/A in the Court of Civil Judge Senior Division at Ponda seeking restoration of the suit property by removing the boundary wall put in the encroached portion; a decree to declare the judgment and decree dated 24th November 1994 in the 1994 suit as null and void and a permanent injunction to restrain the Appellant herein from alienating, disposing or interfering with the suit property in any manner whatsoever. The Comunidade had alleged that the decree dated 24th November 1994 obtained by the Appellant Raghupati Bhandari in Regular Civil Suit No.154/94/B was a product of fraud and collusion in an attempt to usurp the suit property belonging to the Comunidade and admeasuring no less than 1,42,720 square meters, at Bandora, Ponda Goa. The Comunidade had itself alleged that apart from fraud and collusion, admission of frivolous claim of the Appellant Raghupati Bhandari by some of the members of the Comunidade who were closely related to Raghupati Bhandari was in breach of the provisions of Article 350 of the said Code. The Appellant contended that the permission under Article 349 of the Code is not mandatory and does not bar any suit instituted without such permission. He submitted that since this Court has already held in the case of Comunidade of Cacoda Vs Vishnu Bhikaro Sawant And Anr., (2008(5) AIR Bom R 122) that the provisions of Article 349 of the said Code are only directory and even a suit instituted without seeking approval under Article 349 of the said Code is maintainable, by the same analogy even the provisions of Article 350 of the said Code which the Comunidade seeks to invoke, are also directory. Therefore, any admission made on behalf of the Comunidade without seeking leave under Article 350 of the said Code can be taken into consideration by the Civil Court. In any case, a decree made based on such admission cannot be said to be a nullity or opposed to any of the provisions of the said Code. The Court held that the provisions of Article 350 of the Code of Comunidades are mandatory and not directory. The Comunidade cannot, without seeking prior approval of the Administrative Tribunal, withdraw or compromise any suit instituted by it or admit any claim or compromise a suit in which it is impleaded as the defendant. The Comunidade in such case will have to follow the same procedure as is prescribed in Article 349 of the said Code in the matters of applying for and obtaining the approval of the Administrative Tribunal. However, it will not be correct to say that obtaining such approval from the Administrative Tribunal before a Comunidade withdraws a suit instituted by it or admits a claim or compromises a suit instituted by or against it is only some directory requirement. The Court further held that the decree dated 24th November 1994 was based entirely on an unauthorized act on the part of the president of the Comunidade, the decree dated 24th November 1994 was quite correctly declared as null and void by the civil Court in the 1999 suit instituted by the Comunidade. The Court dismissed the appeal and the writ petition.
Fact of the Case:
The Comunidade of Bandora (Comunidade) filed a Special Civil Suit No.7/1999/A in the Court of Civil Judge Senior Division at Ponda seeking restoration of the suit property by removing the boundary wall put in the encroached portion; a decree to declare the judgment and decree dated 24th November 1994 in the 1994 suit as null and void and a permanent injunction to restrain the Appellant herein from alienating, disposing or interfering with the suit property in any manner whatsoever. The Comunidade had alleged that the decree dated 24th November 1994 obtained by the Appellant Raghupati Bhandari in Regular Civil Suit No.154/94/B was a product of fraud and collusion in an attempt to usurp the suit property belonging to the Comunidade and admeasuring no less than 1,42,720 square meters, at Bandora, Ponda Goa. The Comunidade had itself alleged that apart from fraud and collusion, admission of frivolous claim of the Appellant Raghupati Bhandari by some of the members of the Comunidade who were closely related to Raghupati Bhandari was in breach of the provisions of Article 350 of the said Code.
Finding of the Court:
The Court held that the provisions of Article 350 of the Code of Comunidades are mandatory and not directory. The Comunidade cannot, without seeking prior approval of the Administrative Tribunal, withdraw or compromise any suit instituted by it or admit any claim or compromise a suit in which it is impleaded as the defendant. The Comunidade in such case will have to follow the same procedure as is prescribed in Article 349 of the said Code in the matters of applying for and obtaining the approval of the Administrative Tribunal. However, it will not be correct to say that obtaining such approval from the Administrative Tribunal before a Comunidade withdraws a suit instituted by it or admits a claim or compromises a suit instituted by or against it is only some directory requirement. The Court further held that the decree dated 24th November 1994 was based entirely on an unauthorized act on the part of the president of the Comunidade, the decree dated 24th November 1994 was quite correctly declared as null and void by the civil Court in the 1999 suit instituted by the Comunidade.
Issues: Whether the provisions of Article 350 of the Code of Comunidades are mandatory or directory. Whether the decree dated 24th November 1994 was based on an unauthorized act on the part of the president of the Comunidade.
Ratio Decidendi: The Court held that the provisions of Article 350 of the Code of Comunidades are mandatory and not directory. The Comunidade cannot, without seeking prior approval of the Administrative Tribunal, withdraw or compromise any suit instituted by it or admit any claim or compromise a suit in which it is impleaded as the defendant. The Comunidade in such case will have to follow the same procedure as is prescribed in Article 349 of the said Code in the matters of applying for and obtaining the approval of the Administrative Tribunal. However, it will not be correct to say that obtaining such approval from the Administrative Tribunal before a Comunidade withdraws a suit instituted by it or admits a claim or compromises a suit instituted by or against it is only some directory requirement. The Court further held that the decree dated 24th November 1994 was based entirely on an unauthorized act on the part of the president of the Comunidade, the decree dated 24th November 1994 was quite correctly declared as null and void by the civil Court in the 1999 suit instituted by the Comunidade.
Final Decision: The Court dismissed the appeal and the writ petition.
JUDGMENT :
M.S. Sonak, J.
1. Heard Mr. M. B. Da Costa, learned Senior Advocate with Ms. K. Betquecar for the Appellant in First Appeal No.250 of 2009.
2. Heard Mr. Sudin Usgaonkar, learned Senior Advocate with Ms. Tanvi Kamat Ghanekar for Respondent No.1 in First Appeal No.250 of 2009.
3. Heard Mr. Sudin Usgaonkar, learned Senior Advocate with Ms. Tanvi Kamat Ghanekar for the Petitioner in Writ Petition No.983 of 2019. Ms. Priyanka Kamat learned Additional Government Advocate for Respondent No.2 in Writ Petition No.983 of 2019.
4. Mr. Usgaonkar, learned Senior Advocate for the Petitioner in Writ Petition No.983 of 2019 submits that all the Respondents in Writ Petition No.983 of 2019 are duly served. However, despite service, such Respondents neither appeared themselves nor through any Advocates.
5. The learned counsel for the parties agree that the Writ Petition and First Appeal are to be taken up together and can be disposed of by a common judgment and order. The learned counsel pointed out that in case the Writ Petition No.983 of 2019 is allowed, then, there may be no necessity of deciding First Appeal No.250 of 2009 on merits.
6. Writ Petition No.983 of 2019 challenges the order made by the Administrative Tribunal, Goa, on 16th October 2019 rejecting the application made by the Petitioner – Comunidade of Bandora (Comunidade) under Section 350 of the Code of Comunidades (the said Code), to compromise the dispute which is the subject matter of First Appeal No.250 of 2009 by accepting an amount of Rs.1.75 crores from M/s. A. K. Construction, an alleged subsequent purchaser in respect of the property which is the subject matter of First Appeal No.250 of 2009 admeasuring 1,42,720 square meters at Bandora, Ponda Goa.
7. Mr. Usgaonkar, learned Senior Advocate for the Comunidade submits that if the order dated 16th October 2019 made by the Administrative Tribunal (the Tribunal) is set aside and the application of the Comunidade seeking leave to compromise the matter is allowed then, the appropriate consent terms can be filed in First Appeal No.250 of 2009 and the appeal can be disposed of based on such consent terms without necessity of adjudication on merits.
8. Mr. Usgaonkar submits that even though Raghupati Bhandari, the Appellant in First Appeal No.250 of 2009 had encroached upon the suit property admeasuring 1,42,720 square meters and even though the said Raghupati Bhandari, together with some of the members of the Comunidade, had succeeded in playing a fraud on the Comunidade and obtaining a decree dated 24th November 1994 in Civil Suit No.154/94/B from the Court of Civil Judge at Ponda purporting to legalise such encroachment, as of today, the Tribunal, ought to have permitted the Comunidade to compromise the matter by accepting an amount of 1.75 crores in lieu of the Rs.suit property admeasuring 1,42,720 square meters. He submits that Raghupati Bhandari has transferred at least a portion of the suit property, firstly to M/s. Prasanna Developers Private Limited and this company has further transferred the portion to M/s. A. K. Construction. Mr. Usgaonkar submits that even if Raghupati Bhandari's appeal is dismissed, as it ought to be, the Comunidade is likely to face hurdles when it comes to the execution of the decree. He, therefore, submits that the Tribunal ought to have allowed the Comunidade's application seeking leave to compromise the matter by accepting an amount of Rs.1.75 crores in lieu of the suit property admeasuring 1,42,720 square meters.
9. Mr. Usgaonkar submits that since the general body of the Comunidade has deliberated over the matter and resolved to compromise the appeal by accepting an amount of Rs.1.75 crores, the Tribunal was not justified in rejecting the Comunidade's application under Section 350 of the said Code. He submits that the Tribunal in such matters should have deferred to the wisdom of the general body of the Comunidade just as Company Court defers to the commercial judgment of the body of the shar
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