1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 454/2007 Mrs. Angela D' Sa, H. No. 281/U, Plot No. B-17, Reliance Colony, Mugalli Road, Opp. Salaulim Water Supply Office, Maina Curtorim, Salcete Goa. .......... Petitioner. Versus. 1. The Deputy Director of Panchayats, Margao, Salcete, Goa. 2. The Block Development Officer, Margao, Salcete, Goa. 3. The Village Panchayat of Maina Curtorim, Salcete, Goa. .......... Respondents. Mr. Anthony D' Silva, Advocate for the Petitioner. Mr. G. Shirodkar, Addl. Govt. Advocate for respondents no. 1 and 2. CORAM : S.C. DHARMADHIKARI, J. DATE : 2nd September, 2008. ORAL JUDGMENT : 1. Rule. Mr. Shirodkar waives service for respondent nos. 1 and 2. The presence of respondent no.3 Panchayat is not necessary for this petition. Hence, service on respondent no.3 is dispensed with. Rule made returnable forthwith by consent. 2. The petitioner appeared before the B.D.O. complaining that the 2 subject Panchayat i.e. the Village Panchayat of Maina Curtorim, Salcete, Goa is not acting upon his complaint made with regard to a structure which was earmarked for residence, but subsequently put to use as a temple. The petitioner complained that such use causes nuisance as more particularly elaborated in his complaint. 3. His grievance is that the Village Panchayat did not take any action. Aggrieved by such inaction, he preferred an appeal, being Appeal No. BDO/09/2006 which was placed before B.D.O. Salcete, Margao, Goa. By an order passed by him on 22.6.2006, he held that the appeal is incompetent and he has no jurisdiction in the matter. 4. Aggrieved by this order, the petitioner invoked the Dy. Director of Panchayat's jurisdiction under Section 201-A of the Goa Panchayat Raj act, 1994 by filing a revision application/Panchayat Appeal. The Dy. Director of Panchayats, after hearing the parties having upheld the Order of the B.D.O., the present petition. 5. In my view, both the B.D.O and the Dy. Director of Panchayats erred in law in holding that the proceedings before them were incompetent. They have failed to notice the relevant statutory provision or having noticed the same, failed to consider it in its proper perspective. 3 6. Section 201-A of the Goa Panchayat Raj Act, reads as under : "201-A Appeal on miscellaneous matter dealt by the Panchayats.- (1) Where no appeal has been specifically provided in this Act on any miscellaneous matters which is dealt with by the Panchayat or the Village Panchayat Secretary or the Sarpanch, an appeal shall lie to the Block Development Officer within a period of thirty days from the date of refusal of any request by the said authority and his decision on such appeal, subject to the provision of sub-section (2), shall be final. Explanation. - For the purpose of this section, "refusal" means rejecting of any request in writing or non conveying of any reply to the application within a period of fifteen days from the receipt of application in his office. (2) A revision shall lie to the Deputy Collector against any order passed by the Block Development Officer under sub-section (1) within a period of thirty days from the date of the order." 7. A bare perusal of Section 201-A would reveal that where no appeal has been specifically provided on any miscellaneous matters which is dealt with by the Panchayat or by the Village Panchayat Secretary or its Sarpanch, then an appeal shall lie to the B.D.O. within a period of 30 days from the date of refusal of any request by the said authority. The explanation below sub- section (1) is crucial and important for the present petition. The word "refusal" means rejecting of any request in writing or non -conveying of any 4 reply to the application within a period of fifteen days from the date of its receipt. There is a specific grievance that on 4.12.03, the petitioner approached respondent No.3 Panchayat alleging that the construction has been put to use for a purpose other than which it is meant for or rather was being misused. The construction licence is obtained for construction of a guest residence, but now the same is put to use as a temple. The Panchayat took cognizance of this letter and directed the representative of the said temple Society/Association to remain present at the site with relevant documents. However, for one reason or the other, the matter was not pursued and the petitioner once again approached the Panchayat. The Panchayat issued notice dated 24.10.05 directing the Temple Authorities to stop religious ceremonies. Later on to the shock and surprise of the petitioner, a letter was addressed by respondent No.3 to the petitioner stating that the Temple Authority has furnished an undertaking regarding user and, therefore, nothing be done in the matter further. 8. The petitioner's representations dated 1.12.2005 and 20.12.2005 met with no response and that is how he approached the B.D.O. In the peculiar facts of this case in my view, the complaint would fit in the Explanation below Section 201A, sub-section (1) and, therefore, the B.D.O. was in error in holding that the appeal was incompetent or that he lacks jurisdiction to decide the matter. It was his plain duty in law to consider the appeal on merits and pass appropriate orders. This is what the Dy. Director of Panchayats should 5 have directed in his Revisional Jurisdiction. He also failed to exercise his power vested in law. Both failed to notice that the Section and its explanation is worded widely to cover a situation of failure to or non-conveying of a reply and inaction. The purpose of inserting the explanation below sub-section 1 (one) is precisely to include such aspects. Such explanations are inserted to clarify the position and by way of abundant caution. That such can be the intention of the legislature in providing for an explanation below a Section is clear from the following observations of the Supreme Court. In M/s. Keshavji Raoji & Co. v. I. T. Commissioner, reported in AIR 1991 S.C. 1806 at (para 14), page 1818, this is what is held : "Re : Contention (e) Sri Ramachandran urged that the introduction, in the year 1984,of Explanation I to S. 40(b) was not to effect or bring about any change in the law, but was intended to be a mere legislative exposition of what the law has always been. An 'Explanation', generally speaking, is intended to explain the meaning of certain phrases and expressions contained in a statutory provision. There is no general theory as to the effect and intendment of an Explanation except that the purposes and intendment of the 'Explanation' are determined by its own words. An Explanation,depending on its language, might supply or take away something from the contents of a provision. It is also true that an Explanation may - this is what Sri Ramachandran suggests in this case - be introduced by way of abundant caution in order to clear any mental cobwebs surrounding the meaning of a 6 statutory provision spun by interpretative errors and to place what the legislature considers to be the true meaning beyond controversy or doubt. Hypothetically, such can be the possible purpose of an 'Explanation' cannot be doubted. But the question is whether in the present case, Explanation I inserted into S. 40(b) in the year 1984 has had that effect." 9. For the reasons aforesaid, this is a fit case for exercising writ jurisdiction and quashing and setting aside the orders of the B.D.O. and the Dy. Director of Panchayats. 10. Accordingly, the petition is allowed. The Orders dated 22.6.2006 and 24.8.07 of the respondents No.1 and 2 respectively are quashed and set aside. Rule is made absolute in terms of prayer clause (a) to the extent that the appeal preferred by the petitioner will now be heard on merits and in accordance with law. However, it is clarified that no opinion is expressed on merits and the controversy should be dealt with by the Authorities independent of this Court's observations and the same shall be restricted as having been made with regard to their jurisdiction and powers. S. C. DHARMADHIKARI, J. ssm.