1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NOS. 30 & 321/2003 WRIT PETITION NOS. 30/2003 Mrs. Maria Aquina Lobo, Resident of Palmar St. Estevam, Tiswadi, Goa. ........... Petitioner. Versus 1) Director of Panchayat, Directorate of Panchayat, 2) Deputy Director of Panchayat (both having Office at Junta House, Panaji, Goa). 3) Village Panchayat of St. Estevam, Tiswadi North – Goa. 4) Conceicao Monserrate (deleted vide order dated 3.2.03) 5) Philomena Abelina Afonso e Antao, Resident of Palmar, St. Estevem, Goa. Mr. Rohit Bras de Sa, Advocate for the petitioner. Ms. W. Coutinho, Government Advocate for respondents No.1 and 2. Mr. V. A. Lawande, Advocate for respondent No.3. Mr. J. P. Mulgaonkar, Advocate for respondent No.5. WRIT PETITION NOS. 321/2003 Mrs. Maria Aquina Lobo, 2 Resident of Palmar St. Estevam, Tiswadi, Goa. ........... Petitioner. Versus 1) Director of Panchayat, Directorate of Panchayat, having Office at Junta House, Panaji, Goa. 2) Village Panchayat of St. Estevam, Tiswadi North – Goa. 3) Mr. Jose Monserrate, 4) Mrs. Philomena Abelina Afonso e Antao, Resident of Palmar, St. Estevem, Goa. Mr. Rohit Bras de Sa, Advocate for the petitioner. Mr. G. Shirodkar, Addl. Government Advocate for respondent No.1. Mr. V. A. Lawande, Advocate for respondent No.2. Mr. J. P. Mulgaonkar, Advocate for respondent No.4. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date : 8th August, 2008. ORAL JUDGMENT : (Per DHARMADHIKARI, J.) 1. This writ petition is instituted by the petitioner under Article 226 of the Constitution of India. The petitioner prays for a writ of mandamus 3 directing respondents No.1 and 2 to remove the obstruction to the public access situated in between Lote No.50 and Lote No.51. 2. It is the case of the petitioner that she is residing at Palmar. St. Estevam, Tiswadi, Goa. She is resident of the Village more particularly described in the cause title and the petition is filed by her on behalf of herself, so also the Villagers. It is her case that the Villagers have been using the access which is shown on a plan annexed as Annexure “A” to the petition. It is urged that in front of the house of the petitioner, there is a lane belonging to the Communidade of Jua, St. Estevam which is shown in this plan. This plan was drawn in the year 1930 and has become final. It is her case that the recent survey plan also shows the public access and a separate survey number is given to it. 3. A reference is made by the petitioner to a civil suit being Civil Suit No.4/69, which was filed before the Civil Judge, Sr. Division at Bicholim by her father-in-law against one Mathias Monserrate and Irene Afonso Marques. The suit was filed in a representative capacity i.e. on behalf of the Villagers. The defendants in the suit were trying to obstruct the public passage. The said suit came to be decreed in favour of the father-in-law of the petitioner and it was held that the Tambacao has become final and that the lane between Lote No.50 and Lote No.51 has always been used as means of transit by the 4 Villagers as a way to the church, school, market etc. The lane was also used by vehicles and, in such, circumstances, the defendants to the suit were directed to remove the stones and other obstructions. The Judgment of the Civil Court is delivered way back in 1974 and copy thereof is annexed as Annexure “D”. 4. The defendants to the suit filed an appeal before the District Court at Panaji being Civil Appeal No.218/1974, wherein the Appellate Court upheld the Judgment and Decree. All findings which were rendered by the learned Civil Judge, Sr. Division, were confirmed. Thereafter, a second appeal was preferred before the Judicial Commissioner’s Court at Panaji being Second Appeal No.32/78 and the second appeal was also dismissed on 11.5.1984. The defendants in that suit entered into an agreement with respondents No.4 and 5 to the present petition. Thus, the petitioner’s case is that they claim through the defendants to that suit. There is a sale deed, which came to be executed in October, 1993 between Irene Afonso and respondent No.5 to the Writ Petition, transferring her right to share of the said plot or property which is surveyed under Survey No.99/20 and referred to as “Palmar”. It is now the case of the petitioners that respondents No.4 and 5 have been trying to take advantage of the sale deed. They have prevented the Villagers from executing the Decree of the Civil Court in the suit. Consequently, they have been making attempts to block the public access. 5 5. In paras 10 to 12 of the petition, reference is made to the stand of the Village Panchayat which is impleaded as respondent No.3 to this petition. The stand has been conflicting and at times Panchayat has not been assisting the Villagers in removing the obstruction and obstacles put to the use of the access/road. Reference is also made to proceedings between the Panchayat and respondents No.4 and 5. There is also reference to a Gram Sabha held on 25.3.2002. In para 20 of the petition, there is a reference made to proceedings before the Mamlatdar under Section 4 of the Mamlatdar’s Court Act. Relevant passage from the Mamlatdar’s order has been reproduced in para 20. Further reference is made to an appeal filed before the Addl. Collector by respondents No.4 and 5 and the Addl. Collector remanding the matter to the Mamlatdar. It is contended that ever since the matter has been remanded, it was adjourned on one pretext or the other and, as such, the remedy under the Mamlatdar’s Court Act is frustrated. 6. Reference is also made by the petitioner to a civil suit which was instituted by respondents No. 4 and 5 against the petitioner and 15 others praying for permanent injunction, restraining them from interfering with their property which was subject-matter of the sale deed in their favour. Since the suit was filed and attempts were made to obstruct the free passage and use of 6 the access/road, the petitioner made a representation to the Sarpanch of the Village Panchayat, calling upon him to exercise his statutory powers conferred under the Goa Panchayat Raj Act, 1994. However, allegations are made against the Sarpanch. He is biased in favour of respondents No.4 and 5. A representation made to the Dy. Director of Panchayat on 3.1.2003 is also not meeting with any response. Hence, the petitioner moved this Court seeking above reliefs. 7. An affidavit was placed before this Court and after necessary notices were issued, and appearances filed on behalf of the contesting parties. That the matter came to be placed before this Court on 3.3.2003. There were affidavits filed in the meanwhile. In the order passed on 3.3.03, a Division Bench of this Court directed the Director of Land Survey to appoint a Field Survey Officer to determine whether the lane, which is subject-matter of Civil Suit No.4/1969. is the same lane which is subject-matter of the present petition. It was directed that the survey shall be conducted in the presence of parties. They were permitted to place their version at the time of the survey. A report of the Superintendent of Survey and Land Records dated 17th March, 2003 was placed on record of this petition and copies duly supplied to the parties. 7 8. Thereafter, it was brought to the notice of this Court that a show cause notice dated 18th March, 2002 issued by the Sarpanch to respondents No. 4 and 5 was cancelled by an order dated 20th March, 2002 pursuant to the cause allegedly shown by a letter of respondent no.5 dated 18th March, 2002. The order of 20th March, 2002, cancelling the show cause notice states that the complaint is false and frivolous. However, no reasons have been assigned and even the petitioner was not heard before the order was passed. In such circumstances, a Division Bench of this Court was constrained to direct that the show cause notice be heard afresh, after opportunity is given to all the parties, including the petitioner, within a period of 8 weeks from that date. The Director of Panchayat was directed to decide Appeal No.59/2002 within 8 weeks from 31.3.2003. Even the Mamlatdar was directed to dispose of the proceedings expeditiously. In para 5 of the Order passed by this Court on 31.3.03, that is what observed: “ 5. By order dated 3rd March, 2003, we observed that the defence of Respondent No.5 was that the lane, which was the subject matter of the Civil Suit, is different from the lane, which was the subject matter of this Writ petition. We accordingly directed the Director of Land Survey to appoint a Field Survey Officer to determine whether the submission was correct. The Report of the Field Survey Officer has been filed in Court and it does not bear out the case of Respondent No.5. Mr. Sonak 8 admitted today that the Report was correct and that, in fact, the lane referred to in the Decree of the Civil suit was the same as the lane which is the subject matter of this Writ Petition. On behalf of Respondent No.5 Mr. Sonak has tendered apology for the incorrect statement which unnecessarily delayed the matter and caused inconvenience to everyone. The apology is accepted. Mr. Sonak undertakes on behalf of Respondent No.5 to pay the costs of the survey in full. The Respondent No.5 is directed to pay to the petitioner costs fixed at Rs.1500/- within one week from today. Needless to clarify that Respondent No.5 does not admit that the lane is a public way.” 9. Thereafter, the Panchayat and other contesting parties were given time to file their further affidavits. On 22.7.2003, this Court was constrained to direct that the Secretary should remain present with records of the meeting held in the matter of the present petition on 15.7.2003. Even the Sarpanch was directed to remain present with all records. 10. On 23.7.03, this Court once again passed an order that the Secretary and the Sarpanch of the Village Panchayat must remain present with records, including Minutes of the Meeting held on 28.6.2003 and 15.7.2003. Further meeting that was scheduled on 26.7.03 was also noted and direction was 9 issued to take decision on the show cause notice dated 18.3.2002 issued by the Village Panchayat to respondent no.4. All this has been noted by us only to demonstrate that from time to time directions were issued by this Court for compliance with the orders of the Civil Court and other Authorities. However, despite this Court fixing a time schedule for the same, the Authorities did not take prompt steps in that behalf. 11. On 28.7.2003, this Court was constrained to direct the Sarpanch of the Village Panchayat of file an affidavit stating as to whether any licence was issued for putting up a construction on the suit way or not. Directions were issued that the matter will be heard for admission and interim relief on 4.8.03. 12. On 4.8.03, Writ Petition No.30/03 and Writ Petition No.321/03, which is the next petition tagged along with same were placed on board before a Division Bench, consisting of S/Shri F.I. Rebello and P. V. Hardas, J.J. After admitting the petition, the Division Bench heard the parties extensively on the question of interim relief. All earlier orders were noted and it was also observed that the Panchayat decision was challenged in Writ Petition 321/03. The Sarpanch filed an affidavit on 15.7.03 and it was observed that in para 3, the affidavit states that the resolution was passed by the Panchayat to withdraw the show cause notice. It is in such circumstances 10 that the order withdrawing the show cause notice was challenged in the second petition. 13. The Division Bench heard detailed arguments. The Division Bench was requested by the Petitioner and the Villagers on whose behalf the petition was filed, to pass interim mandatory orders and directions so that the obstructions and the impediment as far as suit way is concerned, are removed and the Villagers are allowed free access. It was contended on behalf of the petitioners that the record indicates that the decree has become final. That respondents No.4 and 5 have no independent right other than that of the original defendants to the suit property and under the garb of the sale deed, they cannot prevent use of a public access by the Villagers. The petitioner made good this submission by relying upon the records and proceedings of the civil suit and the documents produced from custody of Public Authorities. 14. The Division Bench also heard the Panchayat and respondents No.4 and 5 who appeared through their Counsel. Even they were permitted to make detailed submissions and point out the relevant documents to support their pleas. 15. In a detailed order, the Division Bench observed that the access is identified as Survey No.99/20. The Division Bench observed that the record 11 would indicate that one Santana Lobo filed Civil Suit No.4/1969 before the Civil Court at Bicholim wherein the learned Judge was pleased to record a finding that in between the plot of the defendants there is a strip of land which is marked in the plan of Tambacao and in the survey plan as lote reservado for public purpose under No.CXXV and it is not an integral part of the defendants’ property. Reference was made to the Judgment and Decree and more particularly para 17 thereof. The Division Bench observed that in between the plots of defendants there was space belonging to the Comunidade which was kept as a way or lane for the public. With these findings, the suit came to be allowed and it was decreed that the said Santana Lobo is entitled to right of way through land No.CXXV and the defendants were ordered to remove the stones and other obstructions put by them so as to permit the plaintiff to use it freely. The Judgment was delivered on 11.10.1973. 16. An appeal was preferred which was disposed of on 22.12.1977 and a reference has been made in para 12 of the Order passed by the Division Bench to the finding of the First Appellate Court and the order passed by the Judicial Commissioner on 6.10.1978. Relying upon these findings in the Judgments concurrently rendered, the Division Bench observed that the access is public access, is confirmed. Thereafter, the Division Bench referred to the obstructions in the year 1992. Respondent no.5 has come up with the case 12 that the then Sarpanch, on the orders of the Dy. Collector, removed the katcha wall on the northern boundary in her absence. It is her case that on the very next day she re-erected the katcha compound wall and the same then continued until the repairs carried out to it in the year 2002. The Sarpancha’s certificate dated 7.8.1992 and the Gram Sabha Resolution dated 26.7.1992 is also referred to by the Division Bench. The resolution was to the effect that the Panchayat would get asphalted the said public access. Further, they were to approach the Dy. Collector, North Goa to change the survey records in respect of the public road/access between the houses more particularly referred to in the order of the Division Bench at page 5. The Division Bench refers to another letter dated 4.9.1992 which shows that the Panchayat removed the obstruction on 11.6.1992 at 2.30 p.m. under police protection. Thereafter, there is a letter dated 20.3.1992 by the Sarpanch to the Dy. Collector setting out therein that the Panchayat had received a complaint from the residents in connection with the obstruction of the public access. 17. The Division Bench observed that this record would indicate that the obstruction to the public access was removed by the Panchayat in the year 1992. However, under the garb of purported repairs to the structure in occupation of respondents No.4 and 5, Panchayat granted licence for repairs of the Compound wall. Thereafter, a complaint was filed by the residents who are 37 in number, to the Sarpanch complaining that respondent No.5 has 13 constructed a wall on the southern side by fixing iron gate in such a way that the road has been closed on the southern side and, therefore, the licence which had been granted, be withdrawn and the wall be removed with the iron gate. This representation having not been taken cognizance of, that the Villagers through the petitioner approached this Court, is the conclusion recorded in para 2 of the order of the Division Bench. 18. Thus, the Division Bench, found substance in the complaint of the petitioner that the concerned Village Panchayat has some how or the other reopened the concluded issue of the access being a public road and thereby assisting respondents No.4 and 5 in obstructing the usage thereof. Such a shifting and conflicting stand of the Panchayat having been noted in the order, that the Division Bench proceeded to hear the objections to the maintainability of the petition raised at the instance of the contesting respondents No.4 and 5. 19. In this behalf, it is pertinent to note that the Division Bench has observed that Civil Suit which was filed by Respondent Nos. 4 and 5 before the Civil Court was dismissed on 10.4.03 holding that there was no cause of action in favour of the plaintiff in that suit. The Division Bench also noted the objections of respondents No.4 and 5 which have once again been reiterated before us by Shri Mulgaonkar that at the most the remedy is to have 14 the decree of Civil Court executed, but a Writ Petition would not lie to enforce and execute the same. The matter being of a civil nature and parties having already approached the Civil Court and the proceedings are on the basis that the Civil Court’s order and Decree have become final, then, the remedy to enforce and execute the same lies elsewhere. It has also been observed that the Mamlatdar has, by an Order dated 18.7.03, dismissed an application filed on behalf of the Villagers. However, the 16 applicants who had approached the Mamlatdar and at whose instance Judgment was rendered, state that so far as southern wall is concerned, there was never any dispute and what was in dispute, at the highest was the northern wall. The Division Bench also noted the arguments of the Panchayat and the Sarpanch and, thereafter, in para 4 rendered the tentative and prima facie conclusions. They read thus : “ 4. From the facts on record, the decision by the Panchayat, respondent no.3, in Writ Petition No.30 of 2003, in our opinion, discloses gross arbitrariness with sole purpose of supporting the case of respondent no.5. In the first instance, in the suit filed by Santana Lobo, the Civil Court clearly held that the road, which was the subject-matter of the dispute, is a public access. The suit was against the predecessor-in-title of respondent no.5, from whom respondent no.5 has purchased the property. They are sisters. That judgment was upheld by the First Appellate Court as also by the Court of Judicial 15 Commissioner. That order has obtained finality. It would thus be binding on the respondent no.5. Once it is held that the access is a public access, that access under the provisions of the Goa Land Revenue Code vests in the State and or local authorities and cannot be altered without the permission of the Collector. Secondly, it was the case of respondent no.5 herself that the construction on the access was demolished in the year 1992 on the southern side and that she reconstructed it without any licence from respondent no.3, Panchayat. The Panchayat has filed an affidavit before this Court that they have not granted any licence for construction and what they granted was merely a licence for repairs. It is beyond imagination as to how the Panchayat once respondent No.5 had no licence construct the compound wall, on their own admission, could have granted permission for repairs to a construction which was illegal on the face of the record. Insofar as the dispute on the southern side is concerned, it is contended that there was never any dispute. It is impossible to believe that in the civil suit the said Santana Lobo would have only pursued in respect of the stones put on the northern side. The complaint received by the Sapranch from the residents, which is reflected in the letter of 20th March, 1992, shows obstruction of the public access. That obstruction was removed in the year 1992 itself. It is again impossible to believe that the access was cleared by 16 leaving the southern side wall. The complaint was against the said compound wall. What prima facie transpires is that the construction has come subsequently on the said public access. It is therefore clear that the public access has been blocked. The questions is whether this Court should, at this stage, considering the other proceedings, exercise extraordinary jurisdiction. We have given our anxious thought to the matter. The parties were before this Court. All the documents were on record, which the Panchayat could have considered. Inspite of that we find that instead of taking an impartial decision, the Panchayat has taken a decision clearly contrary to the records before this Court and available to them. It would, therefore, be a fit case where this Court should exercise its extraordinary jurisdiction at the interim stage itself, considering the finding by a competent civil Court which has become final that this is a public access, by way of mandatory injunction and direct clearance of all obstructions on the public access. Since respondent no.3 has been unable to discharge its statutory functions, we direct respondent nos. 1 and 2 to forthwith takes steps, even with the assistance of police machinery, to remove all obstructions on the public access and report compliance to this Court on 12th August, 2003.” 20. In our opinion, the Division Bench has referred to all the 17 materials which were before it at the time of admission and which have been again placed before us at the final hearing. The order of the Division Bench is clearly based on the same records. The order of the Division Bench, it further appears, was challenged before the Honourable Supreme Court, but, the challenge failed. The Division Bench was constrained to issue interim mandatory directions to remove the obstruction caused to a public access. That the access/road was open to public and its use by public at large was never in dispute, according to the Division Bench. In such circumstances, the Villagers cannot be prevented from using the same for free passage. The Authorities to whom the Villagers have approached for redressal of their grievance and with a specific complaint that the obstruction must be removed, failed to discharge their statutory duties. Although they were empowered by relevant statute to take cognizance of such complaint and redress the grievance of the Villagers by exercising necessary power, they failed to do so and for obvious reasons. In such circumstances, when the Division Bench steps in, entertains the petition and issues mandatory orders and directions by setting out elaborate reasons, then, we see no reason to depart from the course adopted at the stage of admission. 21. As the record stands, the order passed by the Division Bench deserves to be confirmed. However, it was contended on behalf of the contesting respondents No.4 and 5 that under the garb of the directions from 18 this Court, private rights of respondents No.4 and 5 to the property that had come to them under the sale deed, would be put in jeopardy. Further, the decree of the Civil Court being executed in such a manner and resorting to proceedings, which, by no stretch of imagination can be termed as execution proceedings. It was contended strenuously that this