Bombay HC Goa: Director of Municipal Administration Cannot Remove a Councillor Under Section 44, Power Vests Exclusively in State Government

The Bombay High Court at Goa held that the DMA lacks jurisdiction under Section 44 of the Goa Municipalities Act to remove a Councillor, as that quasi-judicial power belongs solely to the State Government.

The High Court of Bombay at Goa has dismissed a writ petition that sought to set aside an order of the Director of Municipal Administration declining jurisdiction to entertain a complaint for removal of a Ward Councillor. Justice Valmiki Menezes, sitting singly, held that the power to remove a Councillor under Section 44 of the Goa Municipalities Act, 1968 is a quasi-judicial power that vests exclusively in the Government of Goa, and that neither the Goa Municipalities Act nor the Gazette Notification dated 29 August 1996 confers or delegates that power upon the Director of Municipal Administration. The judgment settles that a complainant who approaches the wrong forum cannot compel that forum to forward the complaint; the statute requires the Government itself to act.

The Complaint Against the Sanguem Ward Councillor

The petitioner, Mr. Jervis Fernandes, a resident of Gunneabhatt, Sanguem, Goa, alleged that Respondent No.1, Mr. Rumaldo Judas Agnelo Fernandes, a Councillor of Ward No.1 of the Sanguem Municipal Council since 2021, had fraudulently obtained a construction licence for a commercial and residential building on Survey No.02/07 of Sanguem village and had acted contrary to the terms of that licence. The petitioner further alleged that despite directions from the Deputy Town Planner, Quepem, the Chief Officer of the Sanguem Municipal Council failed to act. Additional allegations included irregularities in construction carried out by the Councillor and his wife, procurement of a false Caste Certificate, and corrupt practices during the election.

On 18 April 2023, the petitioner filed a complaint with the Director of Municipal Administration, Panaji. The same complaint was addressed to the Chief Secretary on 28 June 2023, seeking redress and the removal of Respondent No.1 from office.

After hearing both the petitioner and Respondent No.1, the DMA, Panaji, by its order dated 29 September 2023, dismissed the complaint. The DMA held that it had no jurisdiction to entertain the complaint under Section 44 of the Goa Municipalities Act, 1968, and that such powers were vested in the Government. The petitioner then filed Writ Petition No.631 of 2024 before the High Court at Goa, seeking to set aside that order and for directions to the Director of Urban Development to decide the complaint in accordance with Section 44.

The Sole Legal Question

Justice Menezes framed the issue precisely: whether the DMA is vested with powers, delegated or otherwise, under Section 44 of the Goa Municipalities Act, 1968 to pass orders and exercise jurisdiction for removal of a Councillor from office for acts of misconduct or disgraceful conduct.

Section 44 of the Act provides that the Government may, on its own motion or on the recommendation of the Council, remove any Councillor found guilty of misconduct in the discharge of duties or of disgraceful conduct. Sub-section (2) permits removal where the Councillor has become incapable of performing duties. Sub-section (3) mandates that no order of removal shall be made unless the Councillor has been given a reasonable opportunity of showing cause. Sub-section (4) imposes a five-year disqualification from holding office in any local authority upon removal.

Petitioner's Argument: The 1996 Gazette Notification as Delegation

Counsel for the petitioner, Mr. J.A. Lobo, argued that the DMA had been appointed as Ex-Officio Secretary/Joint Secretary of the Government by Gazette Notification No.26/1/88-GA & C dated 29 August 1996, and that this appointment empowered the DMA to act as a delegate of the Government and to pass orders under Section 44. He also submitted that even if the DMA lacked jurisdiction, it was obliged to forward the complaint to the Government for decision. Reliance was placed on a judgment of the same court in Savio Norvin Menezes and Ors v. Union of India and Anr, decided on 4 April 2025 in PIL Writ Petition No.966 of 2025(F).

Respondent's Case: Quasi-Judicial Power Cannot Be Delegated

Counsel for Respondent No.1, Mr. V.A. Lawande, advanced two distinct lines of argument. First, he submitted that the Goa Municipalities Act does not confer any power of delegation upon the Government of Goa, and that the 1996 Gazette Notification was not issued pursuant to any delegation power under the Act. It was, he argued, purely an executive arrangement by which various officers were appointed as Ex-Officio Secretaries and Joint Secretaries to carry out secretarial work and sign communications only after receiving approval from the Secretary, Minister, or Chief Minister. The power under Section 44, he submitted, vests exclusively with the Government of Goa, which under the Rules of Business means the concerned Minister, Cabinet, or Secretary — not the DMA, whose specific powers are confined to Chapter IV of the Act.

Second, he contended that the power under Section 44 is quasi-judicial in nature because it decides the right of an elected Councillor to continue in office, requires a show-cause notice, and visits the Councillor with removal and a five-year disqualification. On settled principle, quasi-judicial powers cannot be delegated by the authority in whom they are vested. He relied on Savita Chaudhary v. State of Uttarakhand (2018 SCC Online Ut 174), State of Uttar Pradesh and Others v. Z.U. Ansari ((2016) 16 SCC 768), and K. Kuppusamy and Anr v. State of T.N. and Ors ((1998) 8 SCC 469).

How the Court Reasoned

Justice Menezes began with the scheme of the Act. The term “Director” is defined under Section 2(11) to mean a person appointed by the Government to be the Director of Urban Development, and the Director's powers are confined to Chapter IV. Section 71 empowers the Government to notify the appointment of the Director of Urban Development and to confer certain powers on designated officers, including the Collector in specified circumstances. Crucially, the definition of “Government” under Section 2(19) means the Government of Goa and does not refer to any other authority that may be designated to exercise the Government's powers under the Act.

Reading the entire scheme, the court found no power of delegation conferred upon the Government to transfer its powers or duties to any other authority under the Act. Against that backdrop, the 1996 Gazette Notification could not, on its face, effect a delegation of the Government's powers under Section 44. The court read the Notification and found it to be an executive arrangement appointing officers as Ex-Officio Under Secretaries, Joint Secretaries, and Additional Secretaries purely to carry out secretarial work and to sign communications only with the approval of the Secretary, Minister, or Chief Minister. Those signatories were not the Government; the Government remained the approving authority.

The court then distinguished the petitioner's reliance on Savio Norvin Menezes. In that case, the argument was that an Ex-Officio Joint Secretary could not usurp the Government's powers under Section 29 of the Goa Education Act. The court there noted that the Joint Secretary was authorised to carry out secretarial work and sign notifications only after taking approval from the Secretary, Minister, or Chief Minister. More significantly, Justice Menezes observed that Section 29 of the Goa Education Act involves purely administrative powers, which are not comparable to the powers under Section 44 of the Municipalities Act.

Turning to the nature of the power under Section 44, the court held that where a provision visits an elected representative with removal from office and a five-year disqualification, the power exercised after inquiry or appreciation of evidence is judicial or quasi-judicial in nature. The legislature had conferred that power on the Government alone, and no other authority under the Act has any share in it.

On the principle that quasi-judicial power cannot be delegated, the court drew on four authorities. The Supreme Court in Bombay Municipal Corporation v. Dhondu Narayan Chowdhary (1965 SCC OnLine SC 12) held that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. The Bombay High Court at Nagpur in Anjali Shinde v. Zilla Parishad and 2 Ors (Writ Petition No.6394 of 2022, order dated 13 March 2024) held that a quasi-judicial authority deciding rights under a statute cannot delegate that power to a subordinate in the absence of express statutory authority. The Uttarakhand High Court in Savita Chaudhary held that quasi-judicial powers of removal under the Uttarakhand Panchayati Raj Act could not be delegated even under a general delegation provision. The same court in Mohd Naved v. State of Uttarakhand and Ors (2020 SCC Utt 236) elaborated on the maxim delegatus non potest delegare — a delegate cannot further delegate — and affirmed that an element essential to the lawful exercise of judicial power is that it be exercised by the authority upon whom it is conferred, and by no one else.

Applying these principles, Justice Menezes concluded that there was no basis to interpret the powers under Section 44 as having been delegated to the DMA, whether through the Act or through the 1996 Notification. The mere appointment of the DMA as Ex-Officio Joint Secretary of the Government did not confer upon the DMA the capacity to act as the Government for the purpose of Section 44.

On the petitioner's alternative submission that the DMA was at least obliged to forward the complaint to the Government, the court rejected that argument as well. Section 44 requires the Government itself to initiate or decide the question of removal. The fact that the petitioner filed his complaint before the wrong forum did not create any obligation on the DMA to transmit it. The DMA had rightly rejected the complaint as not maintainable before it.

Outcome

Writ Petition No.631 of 2024 was dismissed. Rule was discharged. The order of the DMA dated 29 September 2023 declining jurisdiction under Section 44 of the Goa Municipalities Act, 1968 was upheld. The court confirmed that the power to remove a Councillor for misconduct or disgraceful conduct, and the consequent five-year disqualification, vests exclusively in the Government of Goa and cannot be exercised by the Director of Municipal Administration either directly or as a delegate.