Bombay High Court: The present writ petition was filed under Articles 226 and 227 of the Constitution wherein the issue raised was “whether the principles of natural justice were required to be complied with prior to directing recovery of the amount of expenses and costs incurred by the competent authority in removing any nuisance under Section 8 of the Goa Tourist Places (Protection and Maintenance) Act, 2001 (‘the 2001 Act’). Division Bench of A.S. Chandurkar* and Nivedita P. Mehta, JJ., opined that even if there was no mention whatsoever of the requirement of complying with the principles of natural justice under Section 8 of the 2001 Act, the same must be read into the said provision to ensure compliance of the principles of natural justice and procedural fairness. Therefore, it could not be held that the principles of natural justice stood excluded even by implication. The Court thus held that the order dated 15-7-2019 passed by the Competent Authority and the order dated 28-6-2024 passed by the Appellate Authority were liable to be quashed and set aside.
Background
On 19-7-2003, a Merchant Vessel, M.V. River Princess owned by the petitioner was declared a nuisance under the 2001 Act and thereafter on 30-3-2009, it was declared as a State Disaster by the State Disaster Management Authority. The Government of Goa through its Department of Tourism incurred expenses in removing the nuisance, thus, an order dated 15-7-2019 was passed by the Competent Authority and Director of Tourism under Section 8 of the 2001 Act and Rs 166,41,10,636 was determined as the amount spent towards expenses in removing the nuisance.
The petitioner being aggrieved by the said order preferred an appeal under Section 11 of the 2001 Act before the Appellate Authority, Secretary of Tourism and one of the grounds raised by the petitioner was that the amount of expenses determined under Section 8 of the 2001 Act was without granting any opportunity to the petitioner. However, the Appellate Authority declined to interfere with the original order and dismissed the appeal on 28-6-2024. Thus, being aggrieved by this, the petitioner preferred the present writ petition raising challenge to both the orders. The petitioner submitted that as the original order had been passed in breach of principles of natural justice, it was liable to be set aside.
Analysis, Law, and Decision
The Court noted that the original order dated 15-7-2019 was passed by the Competent Authority without granting any opportunity to the petitioner. Thus, the issue for consideration was “whether the requirement of complying with the principles of natural justice stands impliedly excluded under Section 8 of the 2001 Act?”.
The Court opined that under the 2001 Act, if any nuisance as defined under Section 2(c) was caused, the same was liable to be removed at the instance of the Competent Authority and after such removal, the object of nuisance stood forfeited and vests in the Government to enable it to recover the cost of removal of such nuisance. Further, the expenses and costs incurred by the Competent Authority for removing or abating such nuisance were to be recovered from the person who had caused such nuisance and Section 8 of the 2001 Act empowered the Competent Authority to do so.
The Court stated that an order passed under Section 8 of the 2001 Act resulted in civil consequences qua the person from whom such recovery of such expenses or costs were required to be made. The Court opined that an order resulting in civil consequences ought to be passed after complying with the principles of natural justice.
The Court relied on SBI v. Rajesh Agarwal, (2023) 6 SCC 1, wherein it was held that the principle of audi alteram partem entails that an entity against whom the evidence was collected must: (i) be provided an opportunity to explain the evidence against it; (ii) be informed of the proposed action; and (iii) be allowed to represent why the proposed action should not be taken.
The Court opined that the provisions of Section 8 of the 2001 Act did not specifically exclude the applicability of principles of natural justice, therefore, it was urged on behalf of the respondents that there was an implied exclusion of the applicability of the principles of natural justice because public funds were sought to be recovered.
The Court relied on Manohar v. State of Maharashtra, (2012) 13 SCC 14, wherein the principle that even if a right of hearing was not specifically provided, the same should be granted unless it was specifically excluded was reiterated. The Court also relied on Automotive Tyre Manufacturers Assn. v. Designated Authority, (2011) 2 SCC 258 : (2011) 7 GSTR 1, wherein it was held that unless a statutory provision either expressly or impliedly excluded the principles of natural justice, the requirement of giving reasonable opportunity of being heard before an order was made was read into the said provision. The said principle was applicable regardless of whether the power conferred on the statutory authority was administrative or quasi-judicial.
The Court thus opined that even if there was no mention whatsoever of the requirement of complying with the principles of natural justice under Section 8 of the 2001 Act, the same must be read into the said provision to ensure compliance of the principles of natural justice and procedural fairness. Therefore, it could not be held that the principles of natural justice stood excluded even by implication.
The Court stated that the action of recovering expenses and costs for removing the nuisance did result in civil consequences qua the person from whom they were to be recovered and if the recovery of expenses and costs incurred was undertaken without complying with the principles of natural justice, the remedy of appeal under Section 11(1) against such order would not be a meaningful remedy as there would be no basis for the Appellate Authority to determine whether the actual amount of expenses and costs for removing the nuisance had been sought to be recovered or not. Further, the jurisdiction of any Court to take cognizance of any suit, appeal, or proceeding against any order passed under the 2001 Act was barred in view of Section 11(2).
The Court held that once it was found that the original order was passed by the Competent Authority without giving any opportunity of hearing to the petitioner, the same was liable to be set aside as having been passed in violation of the principles of natural justice. Further, the appellate order would also not survive as the original order was quashed. The Court opined that the Appellate Authority committed an error in not giving due importance to the aspect of compliance of the principles of natural justice, hence, the order dated 15-7-2019 passed by the Competent Authority and the order dated 28-6-2024 passed by the Appellate Authority were liable to be quashed and set aside.
The Court stated that the Competent Authority would be required to undertake the exercise contemplated by Section 8 afresh after complying with the principles of natural justice and giving an opportunity to the petitioner. The Competent Authority should take the necessary steps to determine the amount of expenses and costs incurred for removing the nuisance and recovering it from the person who caused the same in accordance with Section 8 of the 2001 Act.
[Salgaocar Mining Industries (P) Ltd. v. State of Goa, 2025 SCC OnLine Bom 662, decided on 20-3-2025]
*Judgment authored by: Justice A.S. Chandurkar
Advocates who appeared in this case:
For the Petitioner: Yogesh Nadkarni, Simran Khadilkar, Maria Carmita D’Costa Mashelkar and Sonam Dessai, Advocates for the Petitioner.
For the Respondents: Deep Shirodkar, Additional Government Advocate for the Respondents.
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