-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS. 134 OF 2009, 582 OF 2009 WITH MISCELLANEOUS CIVIL APPLICATION NO. 368 OF 2009. Writ Petition no. 134 of 2009. Mr. Mukund D. Deshpande, Aged 47 years, married, Indian National, resident of C/o. Arambol Plazza, Near St. Anthony Chapel, Madlowaddo, Arambol, Pernem-Goa. …...... Petitioner. Versus The Secretary/ Sarpanch, Village Panchayat of Arambol, Pernem- Goa. …...... Respondent. Writ Petition no. 582 of 2009 Mr. Sudheer Desai, Major, married, Indian National, permanent resident of Madhlawaddo, Morjim, Pernem Goa. …...... Petitioner. Versus 1 Village Panchayat of Arambol, Represented through its Secretary, Having office at Arambol, Pernem-Goa. -2- 2 The Sarpanch, Village Panchayat of Arambol, Pernem Goa. …...... Respondents With Miscellaneous Civil Application No. 368 OF 2009. Mr. Mukund D. Deshpande, C/o. Arambol Plazza, Near St. Anthony Chapel, Madlowaddo, Arambol, Pernem-Goa. …...... Petitioner. Versus The Secretary/ Sarpanch, Village Panchayat of Arambol, Pernem- Goa. …...... Respondent. Mr. Joseph Santan Fernandes, Shatkar House, House no. 78, Post Arambol, Modlowaddo, Arambol, Pernem Goa. …...... Applicant/ Intervenor. Mr. Shivan Dessai, Advocate for the petitioner. Mr. J. Vaz, Advocate for the intervenor. CORAM :- N. A. BRITTO. DATE :8th July, 2010. -3- ORAL JUDGMENT Rule. By consent, heard forthwith. 2. Heard, shri S. Dessai, learned counsel on behalf of the petitioner. 3. Both the petitions can be disposed of by this common judgment. The first petition is filed by the attorney of the co-owner of the property surveyed under no. 72/6 of Arambol Village. The second petition is filed by the co-owner, himself. It appears that the petitioner/co-owner in second petition normally resides abroad, and the property surveyed under no. 72/6 is in occupation of his attorney. 4. Both the petitions are directed against the judgment dated 5.2.2009 of the learned Additional Director of Panchayat ( II ) Panaji Goa. The matter of both the petitions is the same namely construction of a wall of 3 metres in length and 1.10 metres in height situated in survey no. 72/6. -4- 5. The intervenor is wife of Joseph Santan Fernandes who had brought the said construction to the notice of Village Panchayat as a result of which a notice was issued to the petitioner/attorney dated 15.4.2008 calling upon him to stop the construction immediately and remain present for a site inspection on 17.4.2008. Accordingly a site inspection was carried out and a notice dated 2.8.2009 was issued to the petitioner/attorney. The said notice was replied to by reply dated 8.8.2009. The petitioner/attorney stated that he had not done any new construction and that he is the power of attorney and is in peaceful possession of the said property surveyed under no. 22/6. It appears that the said intervenor alongwith his wife Peterin Fernandes are in occupation of survey no. 72/6/A and resides in the house existing therein. After the reply was filed the village panchayat at its meeting unanimously resolved that construction was illegal and as a result thereof the petitioner/attorney was directed by order dated 3.10.2008, signed by the Sarpanch of the said village panchayat to demolish the said illegal construction. 6. The petitioners preferred appeals against the said order -5- to the Additional Director which has came to be dismissed. Both the authorities below have rejected the contention of the petitioner that the said structure was existing for more than 40 years as contended by the petitioner. Both the authorities have also come to the conclusion that the said structure is illegal in as much as petitioners were not able to produce any licence obtained for the construction of the said structure, which it appears was erected to close the right of way claimed by the said intervenor through the property of petitioner/co- owner. 7. The show cause notice clearly states that the illegal structure was in survey no. 72/6 but it appears that in demolition notice dated 3.10.2008 it has been stated that the illegal structure is in survey no. 72/6/A, and, therefore learned counsel contends that there is variance between the show cause notice and the final notice of demolition and therefore the Order of the authorities below ought to be set aside. 8. There can be no dispute that inspection report clearly -6- shows that the said construction is in survey no. 72/6. Mere typing mistake in the demolition notice that illegal construction is situated in survey no.72/6-A is certainly not enough to set aside impugned order when the parties are fully aware that the said construction has been made in the property co-owned by the petitioner surveyed under survey no. 72/6. The submission that the demolition notice because it is at variance with the show cause notice needs to be set aside, needs to be rejected. Moreover this submission does not appear to have been made before the Additional Director. 9. Next, it is submitted that no notice to the show cause was issued to the petitioner-co-owner. Admittedly, the petitioner-co- owner is residing abroad and the said construction was carried out by his attorney namely the said Shri Deshpande who was issued with the notice and who had even replied to the same and he had raised no objection that the construction was not done by him or or was done by the petitioner-co-owner. Since it is petitioner/attorney who had done the said construction and possibly at the behest of the petitioner- co-owner, the notice was rightly served upon him and he had replied -7- to the same. 10. Next, it is submitted by learned counsel that order of inspection report/plan was not sent alongwith the show cause notice. This issue does not appear to have been taken up before the Additional Director of Panchayats in as much as the said inspection report must have been prepared in the presence of the petitioners-Attorney and he was always free to take copy of the same. 11. The last grievance made on behalf of the petitioner is that demolition order has been signed by Sarpanch when in terms of section 47(i) or (iii) of the Goa Panchayat Raj Act, 1994 it is to be signed by secretary of Village panchayat. In this context reference is made to section 47 of the Goa Panchayat Raj Acts, 1994, as well as to an unreported Judgment of this Court dated 28.1.2009 in Writ Petition no. 446 of 2008. As per section 47 the Secretary ( of the Village panchayat ) is required to exercise powers of demolition of an unauthorised structure/building constructed without permission of the panchayat after resolution is passed to that effect, in terms of sub -8- clause (ii) and to execute the resolution passed by the Panchayat in terms of sub clause (iii). This Court in the said judgment dated 28.1.2009 has observed that after amendment of section 47 the legislature now expects the secretary to execute the resolution of the Gram panchayat. 12. However, the facts remains that the village panchayat at its meeting has held that the subject construction carried out by the petitioner/attorney is illegal and as far as that is concerned there is no challenge to it. It is true that the resolution was required to be put into execution by the village panchayat secretary. The petitioners in these writ petitions have made secretary/sarpanch of village panchayat Arambol as party respondent. Both have not contested this writ petitions. Possibly for that reason neither the the secretary nor the sarpanch have appeared before this Court. Panchayat is a body corporate and ought to have being made party respondent in this writ petition. Whether the resolution of the village panchayat was required to be executed by the secretary or sarpanch is matter of procedure or at the most a matter of law. It appears that this issue -9- was not raised in the memo of appeal before the Additional Director though it was vaguely submitted before additional director that the signing of the notice by the Sarpanch was not tenable. It may be noted that every error of law need not be corrected in Certiorari or supervisory jurisdiction. Reference can be made to the decision of the Apex Court in Surya Devi (2003(6) SC 675) wherein the Apex Court has observed that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:(i) the error is manifest and the apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provision of law, and (ii)a grave injustice or gross failure of justice has occasioned thereby. Both the authorities below have come to the conclusion that the subject construction is illegal. It appears that it was put up by the petitioner/attorney with a view to block the right of way of intervenor. No grave injustice can be caused to the petitioner in case the said resolution is given effect to either by the sarpanch or the secretary. -10- 13. Considering the facts of the case, and what is stated herein above, I am not inclined to exercise supervisory jurisdiction. Writ petitions, therefore, are hereby dismissed. 14. Rule is discharged. N. A. BRITTO, J. vn*