1 IN THE HIGH COURT OF BOMBAY, BENCH AT PANAJI-GOA. WRIT PETITION NO.446 OF 2008. PETITIONERS:- 1. Shri Shashikant Balchandra Shirodkar, 2. Smt.Smitha Sashikant Shirodkar, Both resident of House No.463, Temerwaddo, Assagao, Bardez, Goa. ..VERSUS.. RESPONDENTS :1. The Additional Director of Panchayats-II, Junta House, Panaji, Goa. 2. Shri Gurudas B.Shirodkar, House No.462, Temer Vaddo Assagao, Bardez, Goa. 3. The Village Panchayat of Assagao, by its Sarpanch, Assagao, Bardez, Goa. =-=-=-===-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.A.F.Diniz, Adv. for the appellants. Mr.G.Shirodkar, A.G.Adv. for respondent no.1. Mr.Rohit Bras De Sa Adv. for respondent no.2. ==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: C.L.PANGARKAR,J. DATE : 28/01/2009. 2 ORAL JUDGMENT: 1. This writ petition is filed against the order of the Additional Director of Panchayat-II, Goa whereby, he set aside the notice issued by the Gram Panchayat for demolition, and remanded the matter back to the Gram Panchayat. 2. The facts are as follows - On 16/8/2005, the present petitioners lodged a complaint with the village Panchayat to the effect that respondent no.2 taking advantage of three consecutive holidays falling on 13th, 14th and 15th August, 2005, started erecting a laterite stone structure by engaging a team of labourers. The petitioner submits that the said structure, which is undertaken by respondent no.2 is located in the portion of the petitioner's property, which had fallen to her share under the judgment and decree dated 5/5/2004. It also falls within the area of access reserved under that order. The petitioner also contended that the construction was being carried out without any approval or sanction and was illegal and unauthorised. Inspection of the 3 site was held by the Panchayat and the panchanama was drawn. The panchayat issued a show cause notice to respondent no.2 to show cause why construction should not be demolished. Respondent no.2 replied to the show cause notice. Respondent no.2 preferred an appeal before the Director of the Panchayat Raj. The Director by his judgment, allowed the appeal and directed the matter to be sent back to the Gram Panchayat, since he found that the notice was not signed by an appropriate officer of the Panchayat. The petitioner, therefore, feels aggrieved and prefers this writ petition. 3. I have heard the learned counsel for the petitioners and the respondents. 4. The learned counsel for the petitioner submits that the order of the Gram Panchayat does not at all suffer from any infirmity. He submits that even if the notice of demolition is issued under the signature of the Sarpanch, the notice cannot be 4 said to be invalid and there was no reason to remand the matter back. The submission cannot be accepted. It is only the Executive Officer of the Panchayat who can issue notice of demolition and not the Sarpanch under his signature. Every order of the Gram Panchayat has to be carried out by the Executive Officer i.e. the Secretary. Section 47 of the Goa Panchayat Raj Act, is amended and the power now vests in the Secretary. It says that the executive power shall be exercised by the Secretary in the following matters. Section 47 reads thus - “47, Executive Powers and functions of the Secretary, - Notwithstanding anything contained in this Act and the rules framed thereunder, the Secretary shall also exercise the powers on the following matters, namely : - (i)to issue the licences for construction, repairs, modification, alternation, so also occupancy certificate in pursuance of the resolution of the Panchayat ; (ii)to initiate action for stopping and or demolishing an unauthorised structure/building constructed without the permission of the 5 Panchayat after resolution is passed to that effect ; (iii)to execute the resolution passed by the Panchayat body” 47-A:- Executive Powers of the Sarpanch – Notwithstanding anything contained in this Act and the rules framed thereunder, the Sarpanch shall exercise the powers on the following matters, namely : - i) to implement the programme of welfare schemes and other developmental works; (ii) to execute and implement the resolution passed by the Panchayat on the matters not specified in Section 47. 5. Before amendment of the title of the Section 47 was “Sarpanch to be executive”. Now the title of the section has been changed as “executive powers and functions of the Secretary”. It is, therefore, obvious that the Legislature now expects Secretary to execute the Resolutions of the Gram Panchayat. 6 6. The learned Additional Director has rightly held that the notice issued on 11/10/2005 needs to be quashed because it is a notice issued by the Sarpanch of the Gram Panchayat and not under the signature of the Secretary. I do not find that the learned Additional Director committed any error in remanding the matter back to the Panchayat, and directing issue of a fresh notice after following the procedure and giving opportunity to the respondents herein of being heard. The order does not suffer from any illegality or infirmity. The writ petition is, therefore, dismissed with a direction to the Panchayat to complete the exercise of deciding the complaint of the petitioner within a months time from the receipt of this order. If at all any appeal is preferred against the said order before the Director, the Director shall also decide the said appeal within period of 2 months after service on the other side of the said appeal. JUDGE chute