Jervis Fernandes vs Rumaldo Judas Agnelo Fernandes And Anr

2026:BHC-GOA:1166
Wp.No 631-2024.docx
Meena
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.631 OF 2024
Mr. Jervis Fernandes,
Son of Joao Baptista Fernandes,
Aged 34 years, married,
Indian National,
R/o. H. No.69/A,
Gunneabhatt, Sanguem Goa. … Petitioner
V/s.
1. Mr. Rumaldo Judas Agnelo Fernandes,
Aged 57 years, married, Indian National,
R/o. H.No.11, Behind Our Lady of Miracles
Church, Bamonsai, Sanquem, Goa.
2. Director of Municipal Administration
With office at Dempo Towers, First Floor,
Patto, Panaji, Goa. … Respondents
Mr. J.A. Lobo, Advocate for the Petitioner.
Mr. V.A. Lawande with Mr. S. Prabhudessai and Mr. Atul Sadre,
Advocates for Respondent No.1.
Mr. Manish Salkar, Government Advocate for Respondent No.2.
CORAM: VALMIKI MENEZES, J.
st
RESERVED ON : 21 AUGUST, 2025
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th
PRONOUNCED ON: 18 JUNE, 2026
JUDGMENT:
1. Rule. Rule made returnable forthwith; the petition is
disposed of with the consent of the parties.
2. The short point, for my consideration is whether the Director
of Municipal Administrator (DMA) is vested with powers,
delegated or otherwise, under Section 44 of the Goa Municipalities
Act, 1968 (Municipalities Act) to pass orders and exercise
jurisdiction for removal of a Councillor from office for acts of
misconduct or disgraceful conduct.
3. The petition has been filed on the following short facts;
It is the case of the Petitioner that the Respondent
No.1, who is a Councillor of the Ward No.1 of Sanguem
Municipal Council from the year 2021 has allegedly
fraudulently obtained a construction license for construction
of a commercial and residential building in the property
surveyed under survey no.02/07 of Sanguem village of
Sanguem taluka and has acted contrary to the Construction
license issued to him; it is alleged that despite directions
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from the Deputy Town Planner, Quepem, the Chief Officer
Sanguem Municipal Council failed to look into the matter.
Several other allegations are made by the Petitioner against
Respondent No.1 and his wife alleging several irregularities
in the construction done by them, and in obtaining a false
Caste Certificate, on the basis of which, corrupt practises are
alleged during the contest of the election. On these
allegations the Petitioner filed a Complaint dated 18.04.2023
to the DMA, Panaji against the Respondent No.1 which was
also addressed on 28.06.2023 to the Chief Secretary, seeking
redress and removal of Respondent No.1 from her office.
4. After hearing the Petitioner and the Respondent No.1, the
DMA, Panaji vide its Judgement and order dated 29.09.2023,
impugned herein, dismissed the said complaint on the ground that
he had no jurisdiction to entertain this complaint under Section 44
of the Goa Municipalities Act,1968 and further held that such
powers are vested in the Government. The Petitioner filed the
present Petition seeking to set aside the order and for directions to
the Director of Urban Development to decide the said Complaint
in accordance with section 44 of the Municipalities Act.
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SUBMISSIONS
5. The Advocate for the Petitioner, Mr. John Lobo submits that
the Director has the power to make rules which is delegated vide
Gazette Notification No.26/1/88-GA & C dated 29.08.1996. He
further submitted that if the Director of Municipal Administration
did not have the power to adjudicate upon the complaint then it
should have forwarded the complaint to the Government for its
decision. It is further submitted that the Director of Municipal
Administration has been appointed as Secretary /Joint Secretary
of the Government and the aforementioned Gazette Notification
and the DMA acts as a delegate of the Government and is
empowered to pass orders and take action in terms of Section 44 of
the Act. To support his arguments, he placed reliance on Savio
1
Norvin Menezes and 2 Ors V/s Union Of India and 2Anr .
6. The Learned Advocate for the Respondent No.1, Mr V.A
Lawande has advanced the following submissions:
a. It was submitted that the power to delegate the functions
of the Government under the Act must be specific, and the
1
Judgement dated 04.04.2025 passed in Public Interest Litigation Writ Petition No.966 of 2025(F) in
the High Court Of Bombay at Goa
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Act does not confer any such delegation to the
Government of Goa; it was further submitted that the
Gazette Notification referred to by the Petitioner is not
one which is issued pursuant to any powers of delegation
under the Municipalities Act but is in the form of an
executive decision by which the Directors and other
officers of the Government have been appointed as Ex-
Officio Secretaries and Joint Secretaries of the
Government, only for the purpose of carrying out
secretarial work and sign communications, orders and
notifications on behalf of the Government, after receiving
approval from the Secretary/Minister /Chief Minister. It
was submitted that under the Municipalities Act, the
powers under Section 44 vest exclusively with the
Government of Goa, which, under the Rule of Business
would be the concerned Minister or Cabinet or Secretary,
and not the DMA, who has specific powers under Chapter
IV of the Act.
b. It was further submitted that the scheme of Section 44
contemplates removal of a Councillor for acts of
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misconduct or disgraceful conduct, which require, under
sub-section 3, prior to making such order to be heard and
to be given a notice; according to the Respondent, such
powers are quasi-judicial or judicial in nature since they
decide the rights of the Councillor to continue in office or
suffer removal. It was then contended that the powers
being of judicial nature, on a settled principle of law, can
never be delegated by the Authority and to whom such
powers are conferred. Reliance has been placed on the
following judgements:
i. Savita Chaudhary v/s State of Uttarakhand
2
and Ors
ii. State of Uttar Pradesh and Others v/s Z.U.
3
Ansari
iii. K.Kuppusamy and Anr v/s State of T.N and
4
Ors
CONSIDERATIONS
7. For the purpose of deciding the issue involved in the petition,
it would be necessary to first examine the scheme of the Act under
2
2018 SCC Online Ut 174
3
(2016) 16 SCC 768
4
(1998) 8 SCC 469
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which specific powers have been conferred on different
Authorities. The “Director”, has been defined under Subsection 11
of Section 2 to mean a person appointed by the Government to be
the Director of Urban Development. The powers of the Director
are specified in Chapter IV of the Act. Section 71 of this Chapter
empowers the Government to notify in the Official Gazette the
appointment of the Director of Urban Development as the Director
and subsection 2 thereof provides for conferring the exercise of the
powers in such Officer that may be designated under Section 71.
The provision of Sub-Section 2 of Section 71 also provide that the
Government, may by notification+ direct the powers of the
Director (except power to make Rules) or his duties under the Act,
under certain circumstances, to be exercised and performed by the
Collector.
8. Sub Section 19 of Section 2 defines “Government” to mean
the Government of Goa. The definition does not refer to any other
Authority that may be designated for the purpose of exercising the
powers to be exercised by the Government under the Act .
Reading the entire scheme of the Act, there does not appear to be
any power of delegation conferred upon the Government, of the
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powers vested on it or the duties or functions conferred upon it ,to
any other Authority under the Act. There being no such power
under the Act, the Notification dated 29.08.1996, referred to by the
Petitioner as delegation under which the DMA could exercise the
powers conferred on the Government under Section 44 of the Act,
on the face of it does not put into effect such delegation. In fact,
reading of the Notification would reveal that the same is not a
notification of delegation of powers but is one by which various
officers of the Government are appointed as Ex-officio, Under
Secretaries, Joint Secretaries and Additional Secretaries to the
Government purely to carry out secretarial work and duties, and to
appoint such Ex-officio, Under Secretaries, Joint Secretaries and
Additional Secretaries to sign communications, orders and
notifications on behalf of the Government; such signing of
communications are to be done only with the approval of the
Secretary/ Minister/ Chief Minister, who are the Government.
9. Reliance on the judgment of this Court in Savio (supra), in
my opinion is misplaced for the following reasons. In that
Judgment one of the arguments raised, as found in paragraph 9
thereof contends that the Ex-Officio, Joint- Secretary of the
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Government could not usurp the powers of the Government under
Section 29 of the Goa Education Act.
This argument was dealt with by this Court at paragraph 12,
wherein this Court noted that under the very Notification now
cited before us, the Joint Secretary was vested with powers and
authorised to carry out the secretarial work on behalf of the
Government and sign Notifications on behalf of the Government
after taking approval from the Secretary/ Minister/Chief Minister.
I also note that after perusing the provisions of Section 29 of the
Goa Education Act that those are provisions which are purely of
administrative nature and not anywhere akin to the powers
conferred on the Government under Section 44 of the
Municipalities Act which I will presently discuss.
10. The provisions of Section 44 of the Municipalities Act reads
as follows:
44. Liability of Councillors to removal from office. (1)
The Government may on its own motion or on the
recommendation of the Council remove any
Councillor from office if such Councillor has been
guilty of any misconduct in the discharge of his
duties, or of any disgraceful conduct.
(2) The Government may likewise remove any
Councillor from office if such Councillor has in the
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opinion of the Government become incapable of
performing his duties as a Councillor:
Provided that no Councillor shall be removable
under this sub-section for becoming incapable of
performing his duties as the [] or the Vice
""[Chairperson), as the case may be.
(3) No resolution recommending the removal of any
Councillor for the purposes of sub-section (1) or (2)
shall be passed by a Council and no order of removal
shall be made by the Government, unless the
Councillor to whom it relates has been given a
reasonable opportunity of showing cause why such
recommendation or order, as the case may be,
should not be made.
(4) In every case the Government makes an order
under sub-section (1) or (2), the Councillor shall be
disqualified from becoming a Councillor, or a
Councillor or member of any other local authority
for a period of five years from the date of such order.
11. This provision provides for the grounds on which the
Councillor may be removed from the office. The two grounds
stated therein are if the Councillor is found guilty of any
misconduct in the discharge of his duties or if he has indulged in
disgraceful conduct. If such grounds are proved, the Councillor
may be removed from office and as a consequence thereof, under
Sub-section 4 of Section 44, the Councillor shall stand disqualified
from becoming a Councillor or a member of any other local
authority for 5 years from the date of such order. Thus, from the
very scheme of Section 44, if allegations /grounds stated in sub-
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section 1 thereof are proved, an order holding such Councillor
guilty of any one of the grounds is visited with very serious
consequences of removal from office followed by disqualification
for a period of 5 years. It is settled law, that where a provision of
such nature, visits the elected representative with removal and
disqualification, such powers, which are exercised after an inquiry
or appreciation of evidence in proof of the grounds, are to be
construed to be of judicial or quasi-judicial nature.
12. The legislature, in its wisdom has conferred such a power to
be exercised under section 44, in the Government, and in no other
Authority. As referred by me earlier, various other Authorities
under the Act, including the Director are specifically defined and
their powers and duties are limited to those stated in the Act.
There is no manner of conferring power under Section 44, which is
exclusively vested in the Government, or on any other authority
under the Municipalities Act. As discussed in the preceding
paragraphs under the Municipalities Act, there is no power to
delegate the functions and powers conferred upon the Government
to any other authority. Obviously therefore, neither can the
Notification dated 29.08.1996, relied upon by the Petitioner be
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construed to delegate such powers nor can one construe, mere
appointment of the DMA as Ex-officio Joint Secretary of the
Government to have the powers to act in capacity of the
Government.
13. Further, it is a settled principal of law that where a provision
of law confers a judicial or quasi-judicial power upon an
Authority, and even more so in the absence of powers to delegate,
such Authority can never delegate this power to any other
Authority. Following are the relevant paragraphs of some of the
judgments which refer to this principle.
i. The Supreme Court in Bombay Municipal
5
Corporation V/ S Dhondu Narayan Chowdhary
whilst dealing with the said principle has held as
under:
3. No question has been raised that any of the
amendments is ultra vires so the words of Section
68 must be reasonably construed. It goes without
saying that judicial power cannot ordinarily be
delegated unless the law expressly or by clear
implication permits it. In the present case the
amendment of Section 68 by inclusion of
5
1965 SCC OnLine SC 12
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delegation of the functions of the Commissioner
under Sections 105-B to 105-E does indicate the
intention that the judicial or quasi-judicial powers
contained in Chapter 6-A were expressly intended
to be delegated. To the delegation as such there
can be no objection. What is objected to is the
provision, both in the section as well as in the
order of delegation, that the exercise of the
function is to be under “the Commissioner' control”
and “subject to his revision”. These words are
really appropriate to a delegation of
administrative functions where the control may be
deeper than in judicial matters. In respect of
judicial or quasi-judicial functions these words
cannot of course bear the meaning which they
bear in the delegation of administrative functions.
When the Commissioner stated that his functions
were delegated subject to his control and revision
it did not mean that he reserved to himself the
right to intervene to impose his own decision upon
his delegate. What those words meant was that the
Commissioner could control the exercise
administratively as to the kinds of cases in which
the delegate could take action or the period or time
during which the power might be exercised and so
on and so forth. In other words, the administrative
side of the delegate's duties were to be the subject
of control and revision but not the essential power
to decide whether to take action or not in a
particular case. This is also the intention of Section
68 as interpreted in the context of the several
delegated powers. This is apparent from the fact
that the order of the delegate amounts to an order
by the Commissioner and is appealable as such. If
it were not so the appeal to the Bombay City civil
court would be incompetent and the order could
not be assailed. The order of the delegate was the
order of the Commissioner and the control
envisaged both in Section 68 and the order of
delegation was not control over the decision as
such but over the administrative aspects of cases
and their disposal. No allegation has been made
that the Commissioner intervened in the decision
of the case or improperly influenced it. In these
circumstances the order impugned in the appeal
cannot be sustained.
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ii. The decision of this Court in Anjali Shinde v/s
6
Zilla Parishad and 2 Ors is as follows:
10. The main contention in the present petition is
that the concerned Authority, who has been given
powers to conduct the enquiry / decide the
application, has no authority to delegate such
powers or to call for the fact finding report. The
authority deciding one of the clause of Section
16(1) of the said Act on the basis of a complaint is
acting as quasi judicial authority. Such quasi
judicial authority is not entitled to delegate his
powers to the subordinate as no such power is
mentioned in the Act. The present matter clearly
goes to show that the learned Divisional
Commissioner delegated his powers firstly to the
Chief Executive Officer of Zilla Parishad, Nagpur
by letter dated 18/11/2021 and that too behind
the back of the petitioner. It is further surprising
to note that the Chief Executive Officer of Zilla
Parishad by his letter dated 10/12/2021, sub-
delegated such powers to the Block Development
Officers, Panchayat Samiti, Narkhed, thereby
directing him to conduct enquiry and submit his
report along with his opinion.
11. Thus in absence of such powers with the
Divisional Commissioner, the entire exercise
carried out by calling of the reports has to be
considered as illegal and without any
jurisdiction.
6
Order dated 13.03.2024 in Writ Petition No.6394 of 2022 by the High Cort of
Bombay at Nagpur
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iii. In Savita Chaudhary (supra) the Uttarakhand
High court dealt with the same principle in
undergoing paragraphs:
9. Under the said notification the State
Government has retained with itself the power
under Section 138 of the Uttarakhand
Panchayati Raj Act regarding removal or
suspension of Chairman of Zila Panchayat.
Admittedly, in the present case, the powers have
not been delegated and, in fact, have been
retained by the State Government. In any case,
the powers contained under the proviso to
Section 138 are quasi-judicial powers which
cannot be delegated and wherein an
opportunity of hearing is to be given to a
Chairman by the State Government, before any
adverse order is passed against him.
10. It is the settled position of law that judicial
or quasi judicial powers cannot be delegated.
Therefore, in any case, even under Section 146
or Section 185, the State Government could not
delegate these powers to any other person.
These powers have to be retained and exercised
by the State Government. ………….
iv. The discussion on the said principle of the Uttarakhand
High Court in Mohd Naved v/s State of
7
Uttarakhand and Ors , is quoted below:
(a) JUDICIAL POWER CANNOT. ORDINARILY.
BE DELEGATED:
7
2020 SCC Utt 236
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20. On the question whether the power conferred
on the Government, to place the Gram Pradhan
and others under suspension, can be delegated to
the District Magistrate, it is necessary, at the
outset, to understand what the word "delegation"
means. "Delegation" is defined in Black's Law
Dictionary as "the act of entrusting another with
authority by empowering another to act as an
agent or representative". In P. Ramanatha
Aiyar's, The Law Lexicon, "delegation" is defined
as "the act of making or commissioning a
delegate" Delegation, generally, means parting of
powers by the person who grants the delegation,
but it also means conferring of an authority to do
things which otherwise that person would have to
do himself. (Sidhartha Sarawgi v. Board of
Trustees for the Port of Kolkata) Delegation may
be defined as the entrusting, by a person or body
of persons, of the exercise of a power residing in
that person or body of persons, to another person
or body of persons, with complete power of
revocation or amendment remaining in the
grantor or the delegator. Delegation often involves
the granting of discretionary authority to another,
but such authority is purely derivative. The
ultimate power always remains in the delegator
and is never renounced. (Gwalior Rayon Silk
Manufacturing (Wvg.) Co. Ltd. v. The Asstt.
Commissioner of Sales Tax; and Sidhartha
Sarawgi.
21. Delegatus Non Potest Delegare means that a
delegate has no power to delegate. The said maxim
indicates a rule of construction of a statute or
other instrument conferring an authority.
Ordinarily, a discretion conferred by a statute on
any authority is intended to be exercised by that
authority, and by no other. But the intention may
be negatived by any contrary indication in the
language, scope or object of the Statute. (The
Barium Chemicals Limited v. The Company Law
Board and Sidhartha Sarawgi). This maxim is
sometimes invoked as if it embodied some general
principle that made it legally impossible for
statutory authority to be delegated. In reality
there is no such principle, and the maxim plays no
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real part in the decision of cases, though it is
sometimes used as a convenient label. Its proper
home is in the law of agency, but even here there
are wide exceptions. (Administrative Law by
H.W.R. Wade & C.F. Forsyth Seventh Edition).
24. An element which is essential to the lawful
exercise of judicial power is that it should be
exercised by the authority upon whom it is
conferred, and by no one else. Normally, Courts
are rigorous in requiring the power to be exercised
by the precise person or body stated in the statute.
The principle is strictly applied, even where it
causes administrative inconvenience, except in
cases where it may reasonably be inferred that the
power was intended to be delegable.
(Administrative Law-by H.W.R. Wade & C.F.
Forsyth Seventh Edition). Bereft of the
empowering statute authorizing delegation of
statutory power, the repository of that statutory
power should exercise that power himself. That
cannot be delegated. He may, for such purpose,
issue a commission, even to a subordinate in the
official hierarchy, to supervise, or/and authorize
further action to be taken, but this can be only
under his control and orders. Delegation, in such
cases, is impermissible. (Sundaram BNP Paribas
Home Finance Ltd. v. State of Kerala). The general
objections to delegation apply with special force to
judicial functions, particularly if they affect
personal liberty or are disciplinary.
(Administrative Law-by H.W.R. Wade & C.F.
Forsyth -Seventh Edition).
25. Even a statutory power to delegate functions,
expressed in wide general terms, will not
necessarily extend to everything. In the case of
important judicial and disciplinary functions the
court may be disposed to construe general powers
of delegation restrictively. (Administrative Law-
by H.W.R. Wade & C.F. Forsyth-Seventh Edition).
No judicial tribunal can, ordinarily, delegate its
functions unless it is enabled to do so expressly or
by necessary implication. (Barnard v. National
Dock Labour Board, and Pradyat Kumar Bose v.
The Chief Justice, Calcutta High Court). Save
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specific conferment of power of delegation by a
Statute, the quasi-judicial power conferred on the
State Government under Section 138(4) and its
first proviso, to place the Gram Pradhan and
others under suspension, could not have been
delegated by it to another
45. In Dhondu Narayan Chowdhary Section 68(1)
of the Bombay Municipal Corporation Act, 1888
(for short the "1888 Act") stipulated that any of the
powers, duties or functions conferred or imposed
upon or vested in the Commissioner, by any of the
Sections mentioned in Sub-Section (2), may be
exercised, under the Commissioner's control and
subject to his revision and to such conditions and
limitations, if any, as he shall think fit to prescribe,
by any municipal officer whom the Commissioner
generally or specially empowered in writing in
this behalf; and in each of the said Sections, Sub-
Sections and clauses, the word "Commissioner"
shall, to the extent to which any municipal officer
is so empowered, be deemed to include such
officer. Section 68(2) provided that the Sections,
referred to in Sub-Section (1), included Section
105B and, under Sub-Section (1), the
Commissioner could, notwithstanding anything
contained in any law for the time being in force, by
notice, order that that person in occupation of the
whole or any part of the premises shall vacate
them within one month of the date of the service of
the notice.
48. As held by the Supreme Court, in Dhondu
Narayan Chowdhary, judicial power cannot,
ordinarily, be delegated unless the Statute either
expressly or by necessary implication permitted it;
and, in the absence of any challenge to the vires of
the provision, it should be reasonably construed.
The words, "any of the powers, duties and
functions", used in Section 68(1) of the 1888 Act,
were construed as indicating the intention that the
judicial or quasi-judicial powers, contained in
Chapter VI-A, were expressly intended to be
delegated. The words "all or any of its powers",
used in Section 146 of the Act, also show that the
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power of suspension, under Section 138 of the Act,
is expressly indicated to be delegated.
49. In. Udai Bhan Singh², the Sub-Divisional
Officer had passed an order under Section 95(1)
(gg) of the U.P. Panchayat Raj Act placing the
Appellant-Gram Pradhan under suspension
pending further proceedings under Clause (g) of
Section 95(1). It was contended on behalf of the
appellant that the power of suspension, under sub-
section (gg), was a quasi-judicial power and,
unless there was a specific provision in the Act
itself permitting delegation of the specific quasi-
judicial power. there could be no delegation of
such a power. A Division Bench of the Allahabad
High Court held that the decision of the Supreme
Court, in Dhondu Narayan Chowdhary, merely
held that judicial power cannot be delegated
unless the law expressly or by clear implication
permits it; even if the power to suspend, under
subsection (gg), is held to be a quasi-judicial
power, the decision of the Supreme Court did not
help the appellant; Section 96-A of the Act
expressly empowered the State Government to
delegate all or any of the powers conferred by the
Act upon it; the power to suspend, under sub-
section (gg), was one of the powers under the Act,
and it was clearly covered by the provisions of
Section 96-A; the decision of the Supreme Court
did not support the contention that there must be a
specific provision in the Act permitting delegation
of quasi-judicial power; the provisions of Section
96-A empowered the Government to delegate all
or any of the powers, including the powers under
subsection (gg) of the Act; the State Government
håd, by notification dated 4-8-1974, delegated the
power exercisable by it under subsection (gg) to
the Sub-Divisional Officers; and the Sub-
Divisional Officer was, therefore, empowered to
pass the order of suspension
.
14. Based upon the aforementioned principle there can be no
manner of interpreting that the powers under Section 44 of the
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Municipalities Act, can be or have been delegated to the DMA.
Even otherwise, merely because the Petitioner filed his complaint
to the wrong Forum, the DMA is not obliged to forward the same
to the Government, since the requirement of Section 44 is that it is
exclusively the Government who should decide the question of
removal of a Councillor and his disqualification. The DMA has
therefore rightly rejected the complaint as being not maintainable
before him.
15. For all the reasons stated above, the Writ Petition stands
dismissed. Rule is discharged.
VALMIKI MENEZES, J.
20/20
Signed by: MEENA VISHAL BHOIR
Designation: Private Secretary
Date: 19/06/2026 18:04:43