1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.167 OF 2006 Mr. Rui Manuel Da Costa Araujo, son of Fernando Araujo, aged 41 years, residing at H.No.118, Gina, Chicalim, Mormugao, Goa. …. Appellant V/s 1. Administrator of Communidades, South Zone, Margao, Goa. 2. Communidade of Mormugao, through the Administrator of Communidades, South Zone, Margao, Goa. 3. Mr. Mauro Olavo Dias, major of age, resident of Near Bar D'Souza, Mangor Hill, H.No. not known, Vasco-da-Gama, Goa. 4. State of Goa, through its Chief Secretary, Secretariat, Porvorim, Goa. …. Respondents Shri Sudesh Usgaonkar, Advocate for the Appellant. Ms. Sapna Mordekar, Additional Government Advocate for Respondents Nos.1 & 4. Shri Marcelino Fernandes, Advocate for Respondent No.3. CORAM : F. M. REIS, J. DATE : 18th NOVEMBER, 2011 2 JUDGMENT : Heard Shri Sudesh Usgaonkar, learned Counsel appearing for the appellant, Ms. S. Mordekar, learned additional Government Advocate appearing for respondents no.1 and 4 and Shri M. Fernandes, learned Counsel appearing for respondent no.3. 2. The above appeal challenges the judgment and decree passed by the learned District Judge, South Goa at Margao in C.S. No.306/2004 dated 23/05/2006 whereby the suit filed by the appellant praying to declare the grant in favour of respondent no.3 as null and void came to be dismissed. 3. Shri Sudesh Usgaonkar, learned Counsel appearing for the appellant has vehemently argued that the procedure as provided under the Code of Communidade has not at all been complied with by respondent no.2 at the time of granting the land to the respondent no.3. The learned Counsel has further pointed out that in the original application filed by respondent no.3, the applicant contended that the respondent was claiming only an area of 51 square metres as a means of access to come to the road located on 3 the northern side of the property. Learned Counsel further pointed out that considering that the grant has been made in favour of respondent no.3, it was incumbent upon Communidade to auction such land before granting the land to respondent no.3. Learned Counsel further pointed out that considering the provisions of Article 327 of the Code of Communidade the respondent no.3 could at the most be entitled for access having a width of 5 metres and, as such, the question of allotting an access having a width of 6 meres would not arise at all. Learned Counsel further pointed out that respondent no.2 was not entitled to grant a conditional grant as according to him on perusal of the grant in favour of respondent no.3 there is a specific condition to the effect that respondent no.3 would purchase another area which is located between the area which has been granted by respondent no.2 and his house property. Learned Counsel further pointed out that such conditional grant cannot be sustained in law and, as such, the whole exercise indulged by respondent no.2 deserves to be quashed and set aside. Learned Counsel has further taken me through the impugned judgment and pointed out that the learned Judge while dismissing the suit misappreciated the evidence on record as well as the legal submissions advanced by the appellant and, as such, came to an 4 erroneous conclusion that the appellant was not entitled for the relief in the suit. Learned Counsel further pointed out that as respondent no.3 had applied for only 51 square metres it was not open to the Managing Committee to allot an additional area of 60 square metes in favour of respondent no.3. Learned Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside and the suit filed by the appellant be decreed as prayed for. 4. On the other hand, Shri M. Fernandes, learned Counsel appearing for respondent no.3 has supported the impugned judgment. Learned Counsel has taken me through the provisions of Article 30(4)(f) of the Code of Communidade and pointed out that the Communidade has got ample power to lease, sale or exchange of the property of the Communidade. Learned Counsel has also taken me through Article 38 of the Code of Communidade and pointed out that there were meetings which were convened which could not materialize on account of lack of Coram. The Managing Committee was entitled to exercise power of the Communidade and pass a resolution in issuing the grant in favour of respondent no.3. Considering the topography of the land of the 5 Communidade, the Committee had resolved and taken note of the report of the expert and, as such, the Committee of respondent no.2 had resolved that some extra area is to be purchased by respondent no.3 in the interest of Communidade as it was found that such land was used and would not inher any benefits to the Communidade. Learned Counsel, however, pointed out that the provisions of law as contemplated under the Code of Communidade has been duly complied with and no interference is called for in the impugned judgment. 5. Ms. S. Mordekrar, learned Additional Government Advocate appearing for respondent no.4 has pointed out that the Administrator of Communidade as well as the Government has given requisite sanction under the Code of Communidade in accordance with law for the grant in favour of respondent no.3. 6. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal. POINT FOR DETERMINATION : Whether the appellant was justified 6 to contend that the grant in favour of respondent no.3 is null and void and not in accordance with Code of Communidade. 7. Dealing with the first contention of Shri Sudesh Usgaonkar, learned Counsel appearing for the appellant that the Communidade cannot sell properties, Shri Fernandes is justified to contend that under the provisions of Article 30(4)(f) of the Code of Communidade there are ample powers available under the Code to execute the lease, sale or exchange of the property. Such powers no doubt can be exercised in specific situations and after complying with the requirements as provided in the code. Considering the said provisions of law, the contention of Shri Usgaonkar that Communidade has no powers to sell the property in the facts of the present case does not arise. 8. Dealing with the second contention of Shri Usgaonkar to the effect that respondent no.3 had initially applied for an area of 51 square metres and what has been granted to the respondent no.3 by the respondent no.2 is an area of 110 square metres, I find that on the basis of the report of the Surveyor who was an expert appointed by the Communidade that an additional area should also be sold to 7 the respondent no.3, which takes note of the topography of the area as such area would in any event not inher any benefits to the Communidade, merely because extra area has been given to the respondent no.3, would not by itself vitiate the resolution passed by the Committee to allot the land to the respondent no.3. 9. On perusal of the provisions of Article 38 of the Code, Shri Fernandes is justified to contend that considering the fact that there were meetings convened of the General body of the Communidade which could not materialize on account of lack of Coram there can be no dispute that the Committee was entitled to exercise the powers vested on the General Body of the Communidade. 10. Dealing with the contention of Shri Usgaonkar that the width should be 5 metres and not 6 metres, I find that there is no sufficient material on record to accept that the width was to the extent 5 metres. The fact remains that it has been agreed to be sold to the respondent no.3 on account of the fact that such area otherwise does not have any benefit to the Communidade. Apart from that there is no dispute that the amount which has been paid by the respondent no.3 was Rs.36,600/- which was the prevailing 8 market price at the relevant time. Considering the said aspect, the appellant was not justified to file any suit for not complying with the Code of Communidade. 11. On going through the overall evidence on record, I find that the learned Judge has rightly appreciated the evidence on record. No interference is called for in the impugned judgment. The point for determination is answered accordingly. In view of the above, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-