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Meenakshi Financial Consultants (P) Ltd. & Others v/s The Village Panchayat of Orlim & Others

    Writ Petition No. 282 of 2018

    Decided On, 09 October 2018

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MS. JUSTICE NUTAN D. SARDESSAI

    For the Petitioners: Sudesh Usgaonkar, Advocate. For the Respondents: R1, P.A. Kamat, R2, Nigel Da Costa Frias, Advocates.



Judgment Text

1. Heard forthwith with the consent of the learned Advocate for the parties.

2. Rule.

3. Shri Nigel Da Costa Frias, learned Advocate waives service of notice on behalf of the respondents.

4. This petition under Article 227 of the Constitution of India takes exception to the order passed by the Appellate Authority dated 17/06/2015 and that dated 06/10/2017 passed by the District Judge in Civil Revision invoking the supervisory power of this Court under Article 227 of the Constitution of India. The parties would be referred to as the petitioners and the respondents for the brevity's sake hereinafter.

5. The proceedings started on the basis of a complaint lodged by the respondent nos. 2 and 3 dated 28/04/2015 to the Town and Country Planning Department and the Sarpanch of the respondent no.1 alleging that the petitioners had cut the bandh and traditional access. The Sarpanch of the respondent no.1 had issued the stop work order on the same date directing to stop the cutting of the bandh and traditional access apart from containing in the show cause notice why action should not be taken against the petitioners. The order of the Sarpanch of the respondent no.1 did not at all indicate his satisfaction nor show cause before issuing such a direction Nonetheless, the petitioners challenged the said order before the Appellate Authority being the Additional Director of the Panchayat on the ground of want of jurisdiction to issue such order in respect of the alleged bandh or traditional access in the private property and secondly on the premise that the sarpanch of the respondent no.1 had no jurisdiction to issue such an order on its behalf, his power being those defined under Section 47A of the Goa Panchayat Raj Act, 1994, Act for short hereinafter.

6. The Appellate Authority by perfunctory and cursory order dismissed the appeal as premature without going into the merits or the grounds taken in the appeal giving rise to the revision at the instance of the petitioners before the District Court, South Goa, Margao. The Revisional Court i.e. the District Court dismissed the revision application confirming the order of the Appellate Authority giving rise to issues for determination whether the Panchayat consti

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tuted under the Act had any jurisdiction in the first instance to issue orders concerning the allegations made in the complaint of the respondent nos.2 and 3 dated 28/04/2015 and whether the Sarpanch of the respondent no.1 had any power or jurisdiction to issue stop work order or show cause notice in exercise of his powers under Section 47A of the Act. The petitioners accordingly challenged the order on grounds that it was bad in law, contrary to the provisions of the Act, that there was total misinterpretation of the provision of the Act by the revisional authorities which held that the stop work order / show cause notice was valid and that the Sarpanch had powers to issue such orders.

7. The Revisional Authority passed the order in violation of the principles of natural justice inasmuch as it failed to consider that no show cause notice was issued to the petitioners before the stop work order was issued by the respondent no.1 through the Sarpanch. The Revisional Authority had ignored that the Writ Petition no.13/2011 was dismissed recording that the allegations of bandh and traditional access as claimed by the respondent Nos. 2 and 3 was disputed and there were no findings or directions on the existence of a traditional access. The petition had therefore to be allowed and the impugned order passed by the Revisional authority had to be quashed and set aside as also the stop work order issued by the respondent no.1.

8. Heard Shri S. Usgaonkar, learned Advocate for the petitioners who at the outset adverted to the complaint lodged by the respondent nos.2 and 3 and submitted that the relief claimed therein was not within the province of the Panchayat – respondent no.1. The stop work order dated 28/04/2015 passed by the Sarpanch of the respondent no.1 was without recording his subjective satisfaction and passed on the same day without even holding a site inspection besides not issuing a show cause notice to the petitioners. He adverted to the provisions of the Act contained in Chapter III to submit that these provisions from Section 60 till 112 of the Act did not pertain to the traditional access or bandh. Assuming at the highest that the Sarpanch had invoked the powers under Section 64j of the Act, the question which still arose was as to whether who had the jurisdiction to issue such an order. In that context he adverted to the powers of the Sarpanch and those of the Secretary and their functions contained in Section 47 and 47A of the Act.

9. A reference was also made to the survey plan of Survey no. 87/14C and 96 with the subdivision which did not at all show a traditional access therein. The order passed by the Additional Director was without any basis. The impugned judgment passed by the learned District Court was also without addressing itself to the aspect of jurisdiction. He adverted to the other records and submitted that the petition had to be allowed and the impugned order had to be quashed and set aside. Shri P.A. Kamat, learned Advocate for the respondent no.1 submitted that there were powers in the respondent no.1 under Section 64j through the Sarpanch to issue the stop work order while conceding that admittedly no site inspection was conducted before issuing such stop work order nor any show cause notice issued to the petitioners.

10. Shri Nigel Da Costa Frias, learned Advocate for the respondent Nos.2 and 3 initially invited attention to the definition of “building” and “erection” contained in Section 2(2) and 2(15) of the Act and next invited attention to the complaint lodged by the respondent Nos.2 and 3. He next questioned as to how the petitioners had filed the appeal if the complaint was not maintainable under the Act. Reliance was placed in Namdev Shiva Shetgaonkar v/s. Vishnu Vasu Shetgaonkar And Ors.[Writ Petition no.7 of 2006] apart from the judgment in Diana Brazilia Rodrigues And Anr. v/s. Hari V. Chatim And 5 Ors. [Writ Petition no. 13 of 2011]. He next referred to the site inspection report where there was a clear understanding on the access of 1.05 mts. and the conditions contained in the license requiring the maintenance of an access of 1 mt. It was his contention that no illegality or perversity was writ large in the orders under challenge and therefore the petition had to be dismissed.

11. Shri Costa Frias, learned Advocate for the respondent Nos.2 and 3 placed the written synopsis with a copy to the Opposite Party in which he raised additional issue while Shri Sudesh Usgaonkar, learned Advocate for the petitioners too placed his written synopsis on record and relied in Amina Bi Shaikh v/s. Chief Officer and others (WP no.473/14) and the judgment in Gangadhar Ramchandra Kharbe v/s. Sarpanch, Village Panchayat of Para (WP no.735/2009).

12. I would consider their submissions, the written synopsis placed on record, the relevant provisions of the Goa Panchayat Raj Act, 1994 (the Act, for short hereinafter) and the judgments relied upon and decide the petition appropriately.

13. The complaint lodged by the respondent nos.2 and 3 to the Sarpanch and Secretary of the respondent no.1 was primarily with the subject that there was cutting of bandh / traditional access in Survey no.87/14 by the petitioners. It was stated in the complaint that the petitioners had completely blocked the access thereby not allowing the farmers to go to their fields for the last 8 years for which they had not cultivated the fields and requesting the respondent no.1 through the Sarpanch and Secretary to take immediate action before the onset of monsoon. This complaint dated 28/04/2015 was entertained by the Sarpanch of the respondent no.1 who on that very date i.e. on 28/04/2015 without the application of mind and without issuing any show cause notice to the petitioners passed an order of stop work cum show cause notice. The question therefore is whether the relief claimed was within the province and domain of the respondent no.1.

14. The petitioners had filed an appeal before the Additional Director of Panchayats assailing the said order on the premise that the respondent no.1 had no jurisdiction to issue any order concerning a bandh or traditional access in the private property of the petitioners and secondly on the premise that the Sarpanch of the respondent no.1 had no jurisdiction to issue such an order as his powers and functions were those under Section 47A of the Act but the Additional Director of Panchayat had dismissed the appeal as premature. Shri Usgaonkar, learned Advocate invited attention to Chapter III of the Act and rightly so to show that it did not contain any provision from Section 60 to 112 as pertaining to a traditional access or bandh. Therefore to all effects and purposes, the respondent no.1 through the Sarpanch had no jurisdiction to issue a stop work order to the petitioners in respect of the cutting of the bandh/traditional access in the private property surveyed under no.87/14 even on a reading of the powers of the Sarpanch under Section 47A of the Act. For that matter there were no powers even in the Secretary on a reading of Section 47 of the Act assuming for a moment that the Secretary could issue such an order instead of the Sarpanch acting on the complaint of the respondent nos.2 and 3.

15. Section 64 of the Act deals with the powers and duties of the Sarpanch and Deputy Sarpanch and in terms of sub-clause (j) of Sub-section (1), the Sarpanch is empowered to stop any unauthorised construction erected in the Panchayat area notwithstanding anything contained in sub-section 3 of Section 66 of the Act and to place the matter immediately before the ensuing meeting of the Panchayat for taking suitable decision. Even on a reading of this Section unlike the contention of Shri Costa Frias, learned Advocate for the respondents, would show that the Sarpanch could not have invoked these powers to issue the stop work order as he did as there was apparently no unauthorised construction going on on the bandh as per the complaint of the respondent nos.2 and 3. This is besides the fact that the survey plan produced on record admittedly did not show the existence of any traditional access. The petitioners had challenged the order passed by the Additional Director of Panchayats in revision before the District Court.

16. The learned District Court however formulated a point for determination whether the order of the Additional Director of Panchayats was bad in law without considering the grounds urged in the revision and instead proceeded at a tangent to discard the contentions on behalf of the petitioners that Section 64(1)(j) of the Act dealing with unauthorised construction could not have been invoked by the respondent no.1 assuming that the order passed by the Sarpanch of the respondent no.1 was that passed under Section 64(1)(j) of the Act. This is besides the fact that there was no inspection held by the office of the respondent no.1, no satisfaction was recorded about the allegations in the complaint to verify its correctness or otherwise and there was a total violation of the principles of natural justice on which count alone the said order was liable to be quashed and set aside. This is besides the fact that Shri P.A. Kamat, learned Advocate for the respondent no.1, submitted that there was admittedly no site inspection conducted by the Sarpanch of the respondent no.1 before issuing the stop work order cum show cause notice to the petitioners.

17. The learned judge for that matter did not find favour with the arguments on behalf of the petitioners despite the fact that there was no reference in the order of the respondent no.1 that there was any unauthorised construction carried out by the petitioners and to hold that the stop work cum show cause notice was otherwise than bad. On the contrary the learned District Court proceeded to hold that it was incumbent on the petitioners to reply to the show cause notice based upon which the respondent no.1 could have taken appropriate decision instead of filing an appeal under Section 66 (7) of the Act. What was materially lost on the learned District Judge was that the stop work order issued by the Sarpanch of the respondent no.1 was issued without any authority and when it was not within the province of the respondent no.1 to deal with the issue under consideration which was complained of by the respondent nos.2 and 3. The learned District Judge however did not give any finding that the respondent no.1 had no jurisdiction to issue the stop work order and instead strayed to observe that the said order cannot be said to be final and that it was only stopping the work so as to give the party an opportunity to show why no further action should be taken for wrong doing.

18. The learned District Judge for that matter ignored the provisions of the Act and held against the petitioners on their contention that the Sarpanch or the respondent no.1 had no powers to deal with the traditional access by looking to the provisions of the Panchayats (Regulation of Buildings) Rules, 1971 when the Act itself was enacted in 1994. In a petition filed by the Fabrica De Igreja De Orlim and six others to which the respondent nos.2 and 3 were not parties, they had claimed that the petitioners herein had obtained a license to construct a boundary compound wall around the property bearing survey no.87/14C on the southern side and which by erecting completely blocked the access to the bandh existing on the southern side of the property serving as a traditional access to the local farmers to go to the field an the southern side of the survey no.87/14. The petitioners herein had clearly denied the existence of such a traditional access for any person or the local farmers from the property developed to go the site on survey no.87/14C and asserted their right to carry out the development and undertake the construction in accordance with the permission granted in their favour.

19. The petitioners were also granted a license dated 05/01/2008 to carry out the construction of the compound wall in the property bearing Survey no.87/14 no doubt after following the conditions laid down there. In the Fabrica De Igreja De Orlim and Six others (PIL WP no.13/2011) the Division Bench of this Court was seized of the fact that an attempt was made to show that there was a traditional access and it should be undisturbed and uninterrupted but found that there were disputed questions of fact. The Division Bench was seized of the affidavit filed by the authority as also by the owner and developer that the access was not in any manner disturbed or interferred with even after the ongoing construction activities or its completion. In that context the Division Bench observed that “ We have no doubt in our mind that traditional access would be maintained at site and there would not be any obstruction or hindrance for the people using the same. We have no doubt in our mind that the authority while issuing licenses and certificates will ensure that the traditional access is maintained”. Ultimately the Division Bench observed at paragraph 17 as “Our orders should not be construed as holding that entire construction work at site is complete. If the plan is for multi storey unit buildings and if only one or two have been completed and balance construction work is still in progress, it has not been demonstrated as to how the balance construction work amounts to interference with the environment and ecology or the traditional access of the villagers. In such circumstances that also would not make any difference so long as the construction activities have been carried out in accordance with the sanction and approval plans and permission/license”. This judgment too does not advance the contention of Shri Nigel Da Costa Frias, learned Advocate for the respondent nos.2 and 3 that there was any transgression by the petitioners on the traditional access or that there was an assurance at their instance to keep an access for the respondent nos.2 and 3 amongst others.

20. A plea was canvassed on behalf of the respondent nos.2 and 3 that in case the contention of the petitioners had to be accepted that there was no powers to the respondent no.1 through its Sarpanch to issue stop work order, there was no basis for the petitioners to file an appeal under the provisions of the Act. This contention is without any basis. The impugned order dated 28/04/2015 to stop work was issued by the respondent no.1 while the powers of the respondent no.1 to stop work or to demolish any construction is provided under 66(3) of the Act. Besides as rightly submitted Shri Usgaonkar, learned Advocate for the petitioners that whenever any order is passed by the respondent no.1 which is either within jurisdiction or without jurisdiction beyond the powers contemplated therein, the appeal lies under Section 66(7) of the Act. The complaint dated 28/04/2015 which is restricted to the cutting of bundh and blocking of the traditional access does not at all refer to the maintenance of any access nor breach of the terms and conditions of the permission which is the subject matter of the complaint.

21. Another important aspect of the matter is that the respondent nos.2 and 3 have been pursuing the litigation against the petitioners at all fora. They have even instituted a suit against the petitioners apart from challenging their action in the Writ Petition filed before the Division Bench of this Court which was later converted to a PILWP no. 13/2011. Moreover in case the respondent nos.2 and 3 are to pursue their remedy in the suit regarding the traditional access, there was no basis for them to make a complaint about it to the respondent no.1 and /or for the respondent no.1 to take action vide the order dated 28/04/2015. It is another matter that the petitioners had disputed the existence of the access both in the suit as well as in the PILWP filed by the respondent nos.2 and 3.

22. In Amina Shaikh (supra), another Single Judge of this Court was seized with the short issue whether the Municipal Council, while deciding an application for building permission can entertain the claim of a third party as regard access and refuse building permission, by adjudicating upon the issue of access. After considering a host of judgments, the learned Single Judge held at paragraph 17 that the planning Authority cannot enter into a private dispute and decides inter se rights which the Chief Officer had done in the case at large before him. He had entertained a complaint before him, visited the site, adjudicated the claim of the respondents vis-a-vis the contentions of the petitioners and reached a conclusion. In that backdrop the learned Judge held that though the Chief Officer may be required to take into consideration the issue of access while granting building permission, he had no judicial power to decide the dispute as regard access and refuse permission. The legislature had conferred no such jurisdiction on him and held that the order passed by the Chief Officer was without jurisdiction and quashed and set aside the same.

23. In Gangadhar Kharbe (supra), a Single Judge of this Court while dealing with the petitioners taking exception to the order cum notice dated 2/05/2005 issued by the Additional Director of Panchayats held that in terms of Section 47 of the Act, such an order of demolition can only be issued under the signature of the Secretary of the Panchayat and not the Sarpanch and the order cum show cause notice therefore having been issued by the Sarpanch was without jurisdiction. The order of the Additional Director of Panchayats affirming the same could not sustained and set aside the same relegating the matter to the said Panchayat.

24. It was the contention on behalf of the respondents that this Court could not interfere with the orders passed by the Courts below in exercise of its power under Article 227 of the Constitution of India. However the orders of the statutory authorities issued without jurisdiction have been challenged before this Court in its writ jurisdiction. In any event this Court has the jurisdiction to entertain the writ petition against such an order. Rule 18 of Chapter XVII inserted in the Bombay High Court Appellate Side Rules,1960 specifies the various orders which are amenable to the jurisdiction of the Single Judge of this Court and in terms of sub-rule 51 of Rule 18, an order passed under the Act is also amenable to the jurisdiction of the Single Judge of this Court. Hence there is no basis in the contention on behalf of the respondents that the order had to be challenged before the Division Bench.

25. A point was canvased on behalf of the respondents in their written submissions that the Civil Judge had observed in its order that prima facie the claim of the farmers to traditional access through the petitioners' property was accepted. At the same time there was no dispute at their instance that these orders were the subject matter of challenge in appeal and pending before the learned District Court where the rights of the parties would be decided with further remedy to the aggrieved party. In any event the contention on behalf of the parties with regard to the existence or otherwise of the traditional access would be decided in the proceedings before the Civil Court and it is not open to the respondents to canvass a plea that they do have a traditional access particularly when the survey plan does not depict the existence of any such access through the property of the petitioners. The petitioners have shown from the material on record that there was a gross illegality in passing of the order by the Sarpanch of the respondent no.1 giving rise to an appeal at the instance of the petitioners and thereafter the revision before the District Court which did not at all address itself to the issues raised by the petitioners and dismissed the same thereby invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The impugned orders passed by the District Court and the stop work orders issued by the respondent no.1 cannot be allowed to stand being without jurisdiction and therefore i pass the following order:

ORDER

1. Rule made absolute.

2. The impugned orders dated 17/06/2015 and 06/10/2017 are quashed and set aside.

3. There shall be no order as to costs.
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