1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 475 OF 2009 The residents of Aforamento and Ambekhandem Ward, Verem Reis Magos, Bardez-Goa, through (1) Shri Ronnie Ferrao, resident of House No. 380/1, (2) Smt. Tereza D'Souza, resident of House No.425, (3) Shri Deepak Dhabholkar resident of House No.A/48 all residents of Aframento and Ambekhandem Ward, Reis Magos, Bardez, Goa. .. Petitioners Versus 1. Francis Fernandes “Villa Logo” House No.A/171 Afromento, Ambekhand, Reis Magos, Bardez, Goa 2. Village Panchayat of Reis Magos, through its Sarpanch P.O. Reis Magos, Bardez, Goa 3. State of Goa, through Director of Panchayats, 3rd Floor, 3rd Lift, Junta House, 18th June Road, Panaji, Goa .. Respondents. Mr. V. R. Tamba with Mr. D. D. Zaveri, Advocates for the petitioners. Mr. Y. S. Naik, Advocate for the respondent No.2. Mr. Aniruddha Borkar, Advocate for the respondent No.1. 2 CORAM :- U. D. SALVI, J. DATE : 21 st August, 2009. ORAL JUDGMENT : 1. Rule, returnable forthwith. Heard by consent of the parties. 2. The petitioners are seeking writ of certiorari and writ of mandamus for setting aside the order dated 2.7.2009 passed by the Additional Director of Panchayat (II), Panaji, Goa refusing the intervention of the petitioners in the Panchayat Appeal No.110/2009 and deferring the hearing of the issue of maintainability of the said appeal pending before it. 3. Panchayat Appeal No.110/2009 before the Additional Director of Panchayat (II), Panaji, Goa has been preferred by the respondent No.1 Francis Fernandes for throwing challenge to the removal notice dated 29.4.2009 issued by the Village Panchayat of Reis Magos, the respondent No.2 pursuant to the Panchayat resolution No.9(8) dated 17.4.2009. This removal notice requires the 3 respondent No.1 Francis Fernandes to remove a mobile tower erected on his property. According to the petitioners, raising of the said mobile tower at the village Reis Magos being dangerous to the health of the local residents and constructed without permission either of the local authority under the Ministry of Communications, Government of India and or Village Panchayat, prompted them to make a complaint against it to the Village Panchayat and removal notice was the result of their complaint. On this background, the petitioners claim that their intervention in the said appeal for joining them to the said appeal was legitimate and the Appellate Authority ought to have allowed their intervention in the matter and decided the maintainability of said appeal at the very first instance when the legal flaw in the said appeal was pointed out by them. 4. The learned Advocate Tamba for the petitioners submitted that the intervention of the petitioners in the said appeal is necessary primarily for the reason that they were the complainants at whose instance the removal notice came to be issued and the issue of deciding legality of the construction as well as the issue of health hazard could have been ably portrayed before the Appellate Authority if their intervention in the said appeal was permitted. In his view, 4 even a third party is not excluded from partaking in the hearing of any legal proceedings and the principle of natural justice called for hearing of the intervenor in the said appeal. To support their case, he relied upon the judgment in the case of Antonio Perreira Versus Recardino Noronho reported in (2006)7 SCC 740. He also placed reliance on unreported judgment of this Bench in Writ Petition No.255/2009 delivered on 2.5.2009 in the case of Narendra Naik Versus Village Panchayat Penha D Franca through Sarpanch. 5. Mr. Y. Naik, the learned Advocate for the respondent No.2 Village Panchayat supported the case of the petitioners and submitted that the respondent No.2 Village Panchayat did not have any objection for allowing intervention to the said appeal on behalf of the petitioners. None appeared to make submissions on behalf of the respondent No.3 State of Goa, which is joined as a formal party. 6. Mr. A. Borkar, the learned Advocate for the respondent No.1 Francis Fernandes submitted that the said mobile tower was a structure as described in the inspection report dated 7.4.2009 and the State Government had 5 conveyed its approval for construction of such roof top facilities free of F.S.I. facilitating Cellular Telephone Services in Goa vide letter dated 18.11.1996 at page No.23 of the petition, and if at all the petitioners had grievance to make about any health hazard to the local residents constituting public nuisance, the appropriate remedy for the petitioners was to institute a suit for declaration and injunction or for such other reliefs as may be proper in the circumstances of the case against the wrong doers by resorting to Section 91 of the Code of Civil Procedure, 1908, and the intervention in the appeal preferred by the respondent No.1 was not called for or warranted. 7. A fact ultimately stands up that the lis before the Appellate Authority was borne as a result of the removal notice dated 29.4.2009 issued by the respondent No.2 Village Panchayat and the subject matter of the lis was a mobile tower. The question, therefore, arises as to whether the joinder of the petitioners to the appeal is necessary for answering of the issues connected with the said lis. Whether the construction of the mobile tower conforms to planning rules or not are the issues which can be answered with reference to the planning rules by the respondent No.2 Village Panchayat. As regards the issue of health hazard to 6 the local residents, a query was made to the learned Advocate Tamba for the petitioners to show from any of the provisions of the Village Panchayat Act or the Planning Rules that such health hazard, without going into merits of it, could have propelled the issuance of the removal notice dated 29.4.2009. Answer to such query is in negative or that he could not point out any such provision in the law. The issue of health hazard is, therefore, not prime consideration for issuance of a removal notice. How far the intervention of the petitioners would aid to resolve the lis before the Appellate Authority is, therefore, a questionable proposition. 8. In Antonio Perriera's case, the Apex Court held with reference to the hearing before the Custodian of Evacuee Property that the hearing of third party is not excluded by the relevant Statute and, therefore, the concerned authority may hear even third party keeping in view the principles of natural justice. In the instant case, there is a Statute namely Code of Civil Procedure governing the issues regarding the joinder of the parties. As discussed above, the joinder of the petitioners to the said appeal is not found necessary. Antonio Perriera's case, therefore, is of no avail to the petitioners. As regards the judgment in Narendra Naik's case, it is pertinent to note that the 7 petitioner therein was an owner of the subject matter in dispute and as such, his joinder to the lis concerning the demolition of the subject matter was found necessary. Such is not the case before this Court. 9. In the result, no error or irregularity can be perceived from the impugned order dated 2.7.2009 refusing the intervention on behalf of the complainants/ petitioners in the said appeal. However, as regards the preliminary objection raised by the respondent No.2, Panchayat, there is obligation cast upon the Additional Director of panchayats (II), Panaji, Goa to decide this preliminary objection at the first instance. The petition is, therefore, partly allowed. The Additional Director of Panchayat (II), Panaji, Goa shall hear the issue of maintainability of the appeal as raised by the respondent No.2 Panchayat at the first instance and decide such issue within a month of this order. The order dated 2.7.2009 deferring the issue of maintainability of the appeal, is set aside. The writ petition is disposed of accordingly. U. D. SALVI, J. SMA