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1976 Supreme(Goa) 5
Goa High Court
K. N. SHUKLA, ADDL. J. C.
Vithal Mahambre and another - Appellant
Versus
Union of India - Respondents
Special Civil Applns. (Writ Petns.) Nos. 143 of 1975 and 15 of 1976
Decided On : 30 January 1976
S. C. A. (W.P.) 143 of 1975. S.V. Joshi, for Petitioner; J. Dias, Govt. Advocate, for Respondents. S. C. A. (W.P.) 15 of 1976. B.F. DSouza, for Petitioners; J. Dias, Govt. Advocate, for Respondents.
The court's decision was influenced by the prima facie case, the potential complications if the impugned orders were implemented, and the submission that the petitions were not incompetent.
Headnote:
Stay Order - Detention of Elected Councillors - The court issued a stay order on the impugned orders that sought to remove the detained elected councillors from office, citing prima facie case and potential complications if the orders were implemented.
Fact of the Case:
The petitioners, who were elected councillors of the Panaji Municipal Council, were detained under the Maintenance of Internal Security Act and were issued notices to show cause why they should not be removed from office. The impugned orders were passed in the name of the Administrator of Goa, Daman and Diu.
Finding of the Court:
The court found that there was a prima facie case and admitted the writ petitions for final hearing. It also issued a stay order on the impugned orders and further proceedings until the disposal of the writ petitions.
Issues: The issues included the validity of the impugned orders, compliance with the rules of natural justice, and the maintainability of the petitions in light of the proclamation of Emergency suspending Fundamental Rights under Article 14 of the Constitution.
Ratio Decidendi: The court held that there was a prima facie case, and the petitions were not incompetent, thereby allowing the admission of the writ petitions for final hearing and issuing a stay order on the impugned orders.
Final Decision: The court ordered the stay of the impugned orders and all further acts or proceedings in pursuance of the said orders until the disposal of the writ petitions.
ORDER:- This interim order shall govern Special Civil Application No 143/75 and Special Civil Application No. 15/76 with regard to the prayer of the petitioners for staying the operation of the impugned orders dated 16-10-1975.
2. Petitioners in both the writ petitions were duly elected councillors of the Panaji Municipal Council. They were detained under the Maintenance of Internal Security Act, 1971 by the Government and are still in jail. During their detention notices in the name of the Director of Municipal Administration were issued to them calling upon them to show cause why an order should not be passed removing them from the office of a councillor of the Panaji Municipal Council. Time limit of three days was set for sending replies. Petitioners submitted their replies and challenged the right of the Director to remove them from the said office. Thereafter on 16-10-1975 Government of Goa, Daman and Diu passed the impugned orders in the name of the Administrator of Goa, Daman and Diu, respondent No. 2.
3. It is submitted by the petitioners that there is a prima facie case to show that the impugned orders are ultra vires, invalid and void. They have set out various grounds in support of their applications, one of them being that no notice contemplated under Section 44, sub-section (3) of the Goa, Daman and Diu Municipalities Act, 1968 was served on them. Petitioners, learned counsel submit that the notices given by the Director of Municipal Administration cannot be considered as notices by the Government which acts in the name of the Administrator.
4. I am satisfied that there is a prima facie case and the admission of the writ petitions for final hearing is a proof thereof.
5. If the impugned orders are implemented in full, several complications will arise. Follow up action will become necessary under Section 50 of the Act to fill up the vacancies and in the event of petitioners succeeding, an unsavoury situation will arise. It would be proper therefore to stay the operation of the impugned orders till the disposal of the writ petitions.
6. A preliminary objection was raised by the learned Government Advocate about the maintainability of the petitions in view of the proclamation of Emergency under which Fundamental Rights under Article 14 of the Constitution have been suspended. Learned counsel for the petitioners in reply argued that the petitions should not be treated as under Article 14 of the Constitution nor they are pressing their Fundamental Rights thereunder. According to them their prayer is confined to a declaration that the impugned orders are ultra vires of the Goa, Daman and Diu Municipalities Act for reasons stated therein and for non-compliance with the rules of natural justice.
7. In view of this submission of the learned counsel for the petitioners I do not think that the petitions are incompetent and liable to be dismissed in limine as contended by the learned Government Advocate.
8. Accordingly operation of the impugned orders and all further acts or proceedings in pursuance of the said orders are stayed till the disposal of these writ petitions.
Order accordingly.
