1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 113 OF 2009 Pandurang Sukdo Gaude, Major of age, Resident of Pisgal, Priol, Ponda-Goa. ... Petitioner versus 1. Village Panchayat of Veling Priol-Cuncolim, through its Secretary, having its office at Veling, Priol, Cuncolim, Goa. 2. Dr. Jagdish J. N. Counto, 30, Gomeco Co-op. Housing Society Ltd., Bambolim, Tiswadi-Goa. 3. Director of Panchayats, Junta House, Panaji-Goa. 4. Secretary(Panchayats), Government of Goa, Secretariat, Porvorim, Goa. ... Respondents Shri A. D. Bhobe, Advocate for the Petitioner. Ms. Winnie Coutinho, Government Advocate for Respondent Nos.3 and 4. CORAM : N. A. BRITTO, J. DATE : 9TH JULY, 2009. 2 ORAL ORDER Heard Shri A. D. Bhobe, learned Counsel on behalf of the Petitioner and Ms. Winnie Coutinho, learned Government Advocate on behalf of Respondent Nos.3 and 4. 2. Respondent No.1/Village Panchayat has chosen not to contest the Writ Petition. 3. The dispute is regarding the first floor constructed by the Petitioner on and above his house situated in Survey No.161/1 of Village Priol. The Petitioner's Bhatkar Dr. Jagadish J. N. Counto approached the Village Panchayat with a complaint that the said first floor was illegally constructed by the Petitioner. As Respondent No.1/Village Panchayat did not take any action, the Deputy Director of Panchayats, assumed the powers of the Panchayat, in terms of sub-section(5) of Section 66 of the Goa Panchayat Raj Act, 1994, and by Order dated 27-11-2002 directed the Petitioner to demolish the construction of the first floor of his dwelling house carried out by him in the agricultural property of the said Dr. Jagadish J. N. Counto surveyed under No.161/1 of Village Priol. In fact that was the right time for the Petitioner to make a request for regularization if that was permissible in law. The Petitioner did not. 4. The Petitioner then filed an appeal before the Director of Panchayats and the same was disposed of by the Additional Director of Panchayats by his 3 Judgment dated 3-11-2005. The Additional Director of Panchayats was pleased to affirm the Order dated 27-11-2002. It appears that a prayer was made before the Additional Director of Panchayats that the said first floor be regularized but that request was rejected on account of the objection the Petitioner's Bhatkar, and, the Petitioner allowed the Judgment dated 3-11-2005 to attain finality. Sub-Section(7) of Section 65 of the said Act specifically provides that the decision of the Director is final. 5. It appears that thereafter the Petitioner filed an application to the Village Panchayat on or about 1-3-2006 stating that he was declared as a mundkar of his dwelling house and as such he was entitled to reconstruct the same. The Petitioner prayed that his construction of the first floor be regularized. The matter was taken up by the Village Panchayat at its meeting dated 8-1-2006 and at its said meeting Resolution No.4 was passed. By the said Resolution the Panchayat claimed that it had taken a humanitarian view and decided to instruct the Petitioner to apply to fulfill and satisfy the Rules and Regulations to legalize the illegal construction done by him and get all the matters regarding that matter approved from all concerned Departments so as to issue him a license to regularize his construction. It was also decided that in case he fails to get the approval from the concerned Government Departments to regularize the construction that the Panchayat would be bound to abide by the orders of the higher authorities and take further action in the matter. By a Resolution No.9 of 4 the same date, it was resolved that the files of the Petitioner be sent to the concerned Department to complete the formalities with regard to the same. 6. The said Petitioner's Bhatkar challenged the Resolution before the Director of Panchayats and the Director of Panchayats by Order dated 24-7-2006 suspended the said Resolution and submitted a report to the Government as required under sub-section(2) of Section 178 of the Act which was considered by the concerned Secretary, by Order dated 22-12-2008. 7. The Director of Panchayats in his Order dated 24-7-2006 held that the Panchayat had no power to pass such a Resolution nullifying the order passed by the authorities vested with the powers under the Act. He further held that after the appeal against the demolition order was passed by the Director, the order had attained finality and as such it was the duty of the Village Panchayat to execute the order as directed but on the contrary the Village Panchayat resolved to regularize the illegal structure and such an act on the part of the Panchayat was unwarranted, improper and belated, in violation of law. 8. The Secretary to the Government by his Order dated 22-12-2008 noted that the Village Panchayat by his Resolution Nos. 4 and 9 both dated 8-1-2006 had sought to nullify the orders of statutory authorities under the provisions of the Act and by doing so the Village Panchayat had exceeded his 5 jurisdiction and thus the said Resolutions Nos.4 and 9 dated 8-1-2006 were prima facie unjust, unlawful and improper. 9. Shri A. D. Bhobe, learned Counsel appearing on behalf of the Petitioner submits that the Resolution No.4 of the Village Panchayat dated 8-1-2006 was already implemented and a Resolution which was implemented could not be suspended and in this regard Shri Bhobe has placed reliance on a Judgment of this Court in Shri Francisco Joaquim Fernandes v. Shri Jose Minguel Fernandes and others(1995(1) GLT 302). Learned Counsel further submits that the Petitioner has already purchased 300 sq. meters of land from the bhatkar in proceedings before the Mamlatdar, and, therefore as on today the Petitioner's bhatkar may have no grievance against the first floor constructed by the Petitioner without the permission of the Panchayat. 10. Ms. Winnie Coutinho, learned Government Advocate besides supporting the orders of both the authorities has submitted that the Judgment reported in Shri Francisco Joaquim Fernandes v. Shri Jose Minguel Fernandes and others(supra) has been overruled by a Full Bench of this Court in Sanjay Govind Sapkal and others v. Collector of Dhule and others(2003 Vol.3 BCR 550). 11. Whether the Petitioner's Bhatkar would now be inclined to condone the illegal construction of the first floor by the Petitioner has nothing to do with 6 the requirements which the Petitioner was required to follow under the Goa Panchayat Raj Act, 1994. Petitioner may have a right to reconstruct under the Mundkar Act but any such reconstruction had to be by permission from the Village Panchayat. Admittedly, the first floor of the Petitioner's house has been constructed by the Petitioner without obtaining a valid permission as required under the said Act. The Petitioner's request for regularization was not entertained by the Additional Director of Panchayats by his Order dated 3-11-2005 and that was the end of the matter. One fails to understand as to why the Petitioner waited for the first floor to be regularized till the Deputy Director assumed powers of Panchayat and directed the demolition and thereafter for the Additional Director of Panchayat to dismiss his appeal. 12. Section 178 deals with the power of the Director of suspending the execution of unlawful orders or resolution. Sub-Section(1) thereof further provides that if in the opinion of the Director, the execution of any order or resolution of a Panchayat or Zilla Panchayat or any order of any authority or officer of the Panchayat or the Zilla Panchayat or the doing of anything which is about to be done, or is being done, by or on behalf of a Panchayat or a Zilla Panchayat is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace, he may by order suspend the execution or prohibit the doing thereof(emphasis supplied). The submission that the Resolution No.4 of the Village Panchayat was already 7 implemented is a submission which cannot be accepted. The Resolution No.4 is nothing but a process initiated by the Village Panchayat, with a view to get the Petitioner's construction regularized and with that in mind that the files were sent to concerned departments to complete the formalities. It is difficult to accept that the Petitioner who was well aware of his right to reconstruct under the Mundkar law was not aware of his duty to obtain a prior permission from the Village Panchayat for construction of the first floor, for the Panchayat to conclude that the construction was done due to lack of knowledge. The Resolution per se was not implemented but was in the process of being implemented. Such a Resolution also ought to come within the import of Section 178 of the Act. The Full Bench in Sanjay Govind Sapkal and others v. Collector of Dhule and others(2003(3) Bom.C.R. 550) has held that: “With respect to the Division Benches, in our considered opinion, the law laid down and observations made by the Court in those decisions do not lay down correct law. To us, it is clear that if, in the opinion of the Collector, the execution of any order or resolution of a Council causes or is likely to cause injury or annoyance to the public, or is against public interest, or leads to a breach of peace, or is unlawful, he may suspend the execution or prohibit the doing thereof. If any of the conditions laid down in sub-section (1) of section 308 of the Act is satisfied or is present, the Collector has jurisdiction to exercise power under sub-section (1). The sine qua non for exercise of power by the 8 Collector is that he must be satisfied that execution of any order or resolution or doing of anything which is or about to be done or being done on behalf of the Council (i) is causing or is likely to cause injury or annoyance to the public, or (ii) is against public interest, or (iii) is likely to lead to a breach of peace, or (iv) is otherwise unlawful. In our judgment, therefore, the Division Bench was not right in observing in Chandrashekhar that the words “the execution of any order or resolution of a Council, or the doing of anything which is about to be done or is being done by or on behalf of a Council”, occurring in the opening part of sub-section (1) of section 308, suggest that the power under that sub- section is given to the Collector to prevent any imminent act on the part of the Council which is likely to give rise to one of the four situations specified therein”. 13. The request of the Petitioner for regularization having not been made at the stage the proceedings were pending before the Deputy Director of Panchayats and thereafter having been rejected by the Director of Panchayats, it was improper and unlawful for the Panchayat to have considered the same again. 14. Both the authorities below have considered the matter in its proper prospective. I find nothing contrary to law in either of the orders of the authorities below. In the light of that, in my view, this is not a fit case to exercise 9 extraordinary jurisdiction in a Writ Petition. Writ Petition is therefore hereby dismissed. N. A. BRITTO, J. RD