Case: Village Panchayat Calangute Vs. Additional Director Of Panchayat Ii

3. M/s. Kay Jay Constructions Company Pvt. Ltd. (hereinafter described as, ‘the(respondent No.4 in the appeal arising out of SLP (C) No.1758 of 2011) was granted permission by the appellant in 2006 for raising construction on property bearing Survey No. 362/12 and part of Survey No. 362/10 at Porbawado, Calangute, Bardez. The company is said to have illegally constructed a wall and thereby blocked access to the water well situated in Survey No.362/10 and the chapel situated beyond Survey No.362/12 as also the existing water drains. When the local residents complained against the illegal construction, the appellant passed resolution dated 24.03.2008 for revocation of the occupancy certificate, which was issued by the Secretary on the basis of what were termed as manipulated resolutions passed on 22.12.2007 and 28.02.2008. The appellant passed another resolution dated 25.3.2009 and revoked the permission granted to the company. The latter challenged the same by filing Panchayat Petition No.6/2009 on the ground that the decision taken by the appellant was contrary to the rules of natural justice. On realizing that the action taken by it was not proper, the appellant revoked resolution dated 25.03.2009. Thereafter, the Sarpanch issued notice dated 29.7.2009 under Section 64 of the Act and directed the company to stop further construction. Simultaneously, he fixed 4.8.2009 as the date for inspection of the site. The company challenged the notice in Panchayat Appeal No.12/2009. Respondent No.1 - the Additional Director of Panchayat entertained the appeal and passed an ex-parte interim order dated 3.8.2009.4. In the meanwhile, application dated 24.7.2009 was made on behalf of the company for grant of permission to use the property for running a guest house. The same was rejected by the appellant vide resolution dated 4.8.2009. The Managing Director of the company challenged the decision of the Gram Panchayat in Panchayat Appeal No.174/2009. On being noticed, the appellant made a request that hearing of Panchayat Appeal No. 174/2009 may be deferred till the disposal of Panchayat Appeal No. 12/2009 and it may be permitted to inspect the construction made by the company. Respondent No.1 rejected therequest and fixed Panchayat Appeal No.174/2009 for final hearing.5. It is borne out from the record that some residents had also filed complaint before Block Development Officer, Bardez, Goa against the illegal construction raised by the company and the consequential blockage of access to the well and change of the natural flow of rain water resulting in water logging. Initially, the Block Development Officer passed an injunction order against the company but after considering thereply, he dismissed the complaint by observing that the construction made by the company was not illegal and any restriction on the use of property would seriously prejudice its cause.6. The appellant challenged orders dated 3.8.2009 and 30.11.2009 passed by respondent No.1 and order dated 19.10.2009 passed by the Block Development Officer in Writ Petition No.16/2010 on the ground that respondent No.1 did not have the jurisdiction to entertain an appeal against the notice issued under Section 64 of the Act and, in any case, such notice could not be stayed under Section 178. It was also pleaded that even if the appeal filed by the company was treated as maintainable, there was no justification to pass an interim order which had the effect of allowing the appeal. As regards the order of the Block Development Officer, it was pleaded that he could not have exercised power under Section 66 of the Act and disposed of the complaint filed by the local residents and thereby allowed the company to continue the illegal construction which had effectively blocked access to the water well and the chapel.7. During the pendency of Writ Petition No.16/2010, respondent No.1 passed final order dated 12.02.2010 in Panchayat Appeal No. 12/2009 and directed the appellant to reconsider the application made by the company for grant of permission to use the property for running a guest house. The appellant challenged that order in Writ Petition No. 312/2010.8. The learned Single Judge of the High Court relied upon the order passed in Writ Petition No.620/2009 and dismissed both the writ petitions as not maintainable.

Court's reasoning:
20. In this case, the appellant had entertained the complaint made by local residents, revoked occupancy certificate and also cancelled the permission granted to the company for raising construction. The resolution cancelling the permission was recalled apparently because the rules of natural justice had not been followed. Thereafter, the Sarpanch issued notice under Section 64 and directed the company to stop further construction. The company challenged the notice and succeeded in persuading respondent No.1 to pass an ex-parte interim order. The application made by the company for permission to use the property for running a Guest House was rejected by the appellant because legality of the construction made by the company was under scrutiny. In both the cases, respondent No.1 set aside the resolutions passed by the appellant as also the notice issued by the Sarpanch. The orders passed by respondent No.1 do not refer to the particular provision under which the concerned officer was exercising the appellate power. Surely, he could not have exercised the power vested in the appellate authority under Section 201 because the source of power of the resolutions passed by the appellant and the notice issued by the Sarpanch cannot be traced in Sections 76, 77, 84, 104 and 105 of the Act which relate to removal of any building or part thereof or any tree or branch of a tree if it is in a ruinous state or is likely to fall or is otherwise dangerous to any person occupying such building or part thereof or matters relating to sanitation, conservancy and drainage or exercise of power by the Secretary in relation to any well, stream, channel, tank or other source of water supply or which postulates right to carry drain through land or into drain belonging to other persons. Similarly, respondent No.1 cannot be said to have exercised power under Section 201-A because under that provision, only the Block Development Officer is competent to entertain an appeal in a miscellaneous matter which is dealt with by the Panchayat or the Village Panchayat Secretary or the Sarpanch and against which no appeal has been specifically provided under the Act. Therefore, it is reasonable to infer that respondent No.1 had exercised power under Section 178(1). However, instead of suspending the execution of the resolutions passed by the appellant or the notice issued by the Sarpanch and sending the matter to the State Government for confirmation, the concerned officer suo-moto annulled the resolutions and the notice by assuming that he had the power to do so.21. It is thus evident that while the appellant and the Sarpanch had exercised their respective powers in public interest, respondent No.1 nullified that exercise because he felt that the resolution/action was contrary to law and was unjustified. While exercising the power under the Act, the Panchayat was not acting as a subordinate to respondent No.1 but as a body representing the will of the people and also a body corporate in terms of Section 8 of the Act. Therefore, it had the locus to challenge the orders passed by respondent No.1 and the High Court was clearly in error in holding that the writ petition was nothold that the writ petitions filed by the appellant were maintainable and the learned Single Judge of the High Court committed grave error by summarily dismissing the same. We also declare that the contrary view expressed by the High Court in other judgments does not represent the correct legal position.