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1967 Supreme(Goa) 12
Goa High Court
V.S.JETLEY
Joao da Costa Pereira - Appellant
Versus
Union Territory of Goa, Daman and Diu - Respondent
Decided On : 06/24/1967
B.F. D'Souza, for Appellant; S. Tamba, Govt. Pleader, for Respondents.
A person aggrieved for the purposes of the relief sought in a writ petition under Article 226 of the Constitution of India must suffer a legal grievance. A fanciful suggestion of grievance is not sufficient. Disappointment is not the same thing as a legal grievance.
Headnote:
WRIT PETITION - Hospicio - Election of Governing Body and Superior Council - Bye-laws - Membership - Legal Right - Locus Standi - Delay - Public Charitable Institution - Administrative Corporation of Public Utility - Bye-laws 15, 30, 110 - Diploma Legislativo No. 1200 dated 7th April 1947 - Diploma Legislativo No. 1984 dated 14th April 1960 - Reforma Administrative Ultramarina (Reforma) - S. 568 - Portaria No. 1919 dated 29th December 1933 - Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962 - S. 2 - Constitution of India - Art. 226 - Art. 239 - HELD, the petitioner has no legal right to be elected to the Governing Body and the Superior Council of the Hospicio and, therefore, there is no invasion of his legal right. The petition is misconceived and devoid of substance and is dismissed with costs.
Fact of the Case:
The petitioner, a member of the 'Sagrado Coracao de Maria' Margao (Hospicio), sought a writ of mandamus or any other appropriate writ or direction under Article 226 of the Constitution requiring the respondent (1) to hold the election of the members to the Governing Body and to the Superior Council of the Hospicio, and also to hand over all the properties of the Hospicio to these bodies after elections in accordance with the prevailing bye-laws. The Hospicio was originally founded by late Father Antonio Joao de Miranda. It is a private Catholic organisation governed by its bye-laws. The bye-laws were framed in accordance with the General Administrative Laws and Regulations dated 6th February 1897. They were approved by the Portuguese Government in April 1931. The Hospicio was governed by this Diploma. It was repealed by Diploma Legislativo No. 1984 dated 14th April 1960. As a result of repeal the members who were on the electoral roll of the Hospicio in 1947 prior to the enactment of Diploma Legislativo No. 1200 continued to remain members even though they failed to pay a monthly subscription of Rs. 2. The petitioner claims to be one of such voters in addition to 23 other members. The petitioner states that it was decided to have elections but before this could be done the Portuguese rule came to an end and the territory of Goa, Daman and Diu became part of the Republic of India in December 1961. The members have been expecting the elections and formation of the Governing Body and the Superior Council of the Hospicio under the supervision of the respondent (1) but the respondent (2) appointed a managing committee to supervise the affairs of the Hospicio. This was by an order dated 12th April 1964. This Committee, according to the petitioner, is to function till a new Governing Body is elected in the manner prescribed by the bye-laws. The Committee should have functioned for a short period, but more than 3 years after the Portuguese rule came to an end the Committee continues to manage the affairs of the Hospicio and its management is not restored in spite of repeated representations. The petitioner has a right to contest the elections to the Governing Body and to the Superior Council. He has also the right to vote at such elections. The respondent (1) has wrongfully and illegally retained the possession of the properties of the Hospicio. The Committee cannot undertake the construction of the hospital managed by the Hospicio and spend large funds thereon. As a member interested in the affairs of the Hospicio he has the right to question the action of the respondents 1 and 2. This, in short, is the grievance of the petitioner.
Finding of the Court:
The Court found that the petitioner has no legal right to be elected to the Governing Body and the Superior Council of the Hospicio and, therefore, there is no invasion of his legal right. The petition is misconceived and devoid of substance and is dismissed with costs.
Issues: 1. Whether the petitioner has any legal right to be elected to the Governing Body and the Superior Council of the Hospicio? 2. Whether the Hospicio is a private Catholic charitable institution or an administrative corporation of public utility? 3. Whether the respondents (1) and (2) can be called upon to convene the meetings of the Governing Body and the Superior Council? 4. Whether the management of the Hospicio should be restored to its members?
Ratio Decidendi: 1. The petitioner has not been able to establish that he is a member of the Hospicio. The burden is on him to prove this fact. This burden has not been discharged. In this view of the matter what personal right has he in the affairs of the Hospicio ? None, as I am able to see. He is not prejudicially affected by the action of the respondent (1) I do not think he is competent to challenge its action. 2. The Hospicio is an administrative corporation of public utility. This would be clear from the provisions of Diploma Legislativo No. 1200 dated 7th April 1947 and other laws mentioned in sub-paragraph (xi). The Hospicio came under direct control and supervision of the Provedoria, a Civil Department of the Portuguese Government before liberation in December 1961. 3. The respondents (1) and (2) cannot convene the meetings in view of the bye-laws 15 and 30. This stand is adopted in sub-paragraph (v). Bye-law 15 postulates that the management of the Hospicio rests with the General Assembly of its members and its administration rests in the hands of the Governing Body. Bye-law 30 envisages that the General Assembly is constituted and its deliberations are legal when at a place and hour mentioned by the President of the Hospicio there are present Effective members, in case of ordinary meetings, at least 50, and in case of extraordinary meetings, at least 30. This is the quorum prescribed. The respondents (1) and (2) are not expected to do what is not permitted by the bye-laws. 4. The management of the Hospicio cannot be restored to its members as there are no 20 Effective members with voting rights to whom the management could be restored. This would be clear from sub-paragraph (xiv). Shri Tamba invited my attention to bye-law 110 which may be reproduced with advantage.
Final Decision: The petition is misconceived and devoid of substance and is dismissed with costs.
2. The respondents impleaded to the petition are (1) The Union Territory of Goa, Daman and Diu; (2) Dr. Ramesh Borkar Chairman of the Administrative Committee of the Hospicio: and (3) The Union of India.
3. The facts leading to the petition are stated in the petition which is duly supported by an affidavit sworn by the petitioner. The petitioner is a member of the institution known as 'Sagrado Coracao de Maria', Margao (hereinafter referred to as 'the Hospicio'). There are 23 other members of the Hospicio. The Hospicio is duly registered as an association of persons engaged in charitable, religious, cultural and educational activities. The respondent (2) is the Chairman of the Administrative Committee of the Hospicio appointed by the respondent (1) for managing the affairs of the Hospicio including the management of the hospital run by the Hospicio. The Hospicio was originally founded by late Father Antonio Joao de Miranda. It is a private Catholic organisation governed by its bye-laws. The bye-laws were framed in accordance with the General Administrative Laws and Regulations dated 6th February 1897. They were approved by the Portuguese Government in April 1931. The objects of the Hospicio, inter alia, are to provide medical assistance or shelter to the sick and destitute persons and also to provide spiritual assistance. There was a Governing Body and a Superior Council elected by the members to manage the day-to-day affairs of the Hospicio in accordance with the bye-laws. The Government had the powers of supervision under the bye-laws. Diploma Legislativo No. 1200 dated 7th April 1947 prescribed that the members who failed to pay a monthly subscription of Rs. 2 were debarred from either voting or being elected to any post on the Governing Body. The Hospicio was governed by this Diploma. It was repealed by Diploma Legislativo No. 1984 dated 14th April 1960. As a result of repeal the members who were on the electoral roll of the Hospicio in 1947 prior to the enactment of Diploma Legislativo No. 1200 continued to remain members even though they failed to pay a monthly subscription of Rs. 2. The Hospicio prepared a fresh electoral roll listing the members on the electoral roll in 1947 as voters and eligible to contest elections to the Governing Body and the Superior Council as provided in the bye-laws. The petitioner claims to be one of such voters in addition to 23 other members The petitioner states that it was decided to have elections but before this could be done the Portuguese rule came to an end and the territory of Goa, Daman and Diu became part of the Republic of India in December 1961. The members have been expecting the elections and formation of the Governing Body and the Superior Council of the Hospicio under the supervision of the respondent (1) but the respondent (2) appointed a managing committee to supervise the affairs of the Hospicio. This was by an order dated 12th April 1964. This Committee, according to the petitioner, is to function till a new Governing Body is elected in the manner prescribed by the bye-laws. The Committee should have functioned for a short period, but more than 3 years after the Portuguese rule came to an end the Committee continues to manage the affairs of the Hospicio and its management is not restored in spite of repeated representations. The petitioner has a right to contest the elections to the Governing Body and to the Superior Council. He has also the right to vote at such elections. The respondent (1) has wrongfully and illegal
