Writ Petition No.178 of 2003,Writ Petition No.185 of 2003

20th July, 2010

Petitioner Counsel: Shri. S. D. LOTLIKAR,Mr. P. S. LOTLIKAR
Respondent Counsel: Shri. S. VAHIDULLA,Shri. S. KARPE

Cases Cited:
Village Panchayat of Velim Vs. Shri. Valentine S.K.F. Rebello, 1990(1) GLT 70 [Para 1]
Fracisco Joaquim Fernandes, 1995(1) GLT 302 [Para 12,14,19]
Shri. Guno Vinayak Gaude Vs. State of Goa through the Chief Secretary, W.P. No.181/2004 Dt.17-12-2004 [Para 14]
Sanjay Govind Sapkal Vs. Collectorate of Dhule, 2003(6) LJSOFT 106 [Para 14]
Municipal Board, Kannauj Vs. The State of U.P., AIR 1971 SC 2147 [Para 14]

JUDGMENT

JUDGMENT:- These two Writ Petitions can be conveniently disposed of by this common judgment, without going to the issue of maintainability of the second Writ Petition filed by the Village Panchayat of Parra, in the light of the judgment of this Court in the case of Village Panchayat of Velim Vs. Shri. Valentine S.K.F. Rebello & Anr. (1990(1) GLT 70).

2. These Writ Petitions have been filed challenging the legality, propriety and validity of the order dated 24/03/2003 of the Secretary to the Government of Goa (Panchayats), passed under sub-section (2) of Section 178 of the Goa Panchayat Raj Act, 1994 ('the Act' for short).

3. Some facts are required to be stated to dispose of the Writ Petitions.

4. The petitioner is the owner of a triangular shaped property surveyed under No.121/28 of Parra Village. The said property appears to be bounded on all three sides by roads and two of the said roads merge into one road at the top of the triangular portion of the petitioner's property which then proceeds further towards the north-east to Calangute and Candolim and which junction is perceived as a traffic accident prone zone and on that count the Gram Sabha of the Village Panchayat passed a resolution on 21/01/2001 being resolution No.5(1) which reads as follows;

"It is resolved that the triangular field sandwiched between Parra Saligao and Parra Nagoa Arpora road leading from the junction road be reserved and locked for construction of the traffic island broadening of the road and for the construction of garden for tourist attraction, no construction should allow in this fields as it should cut the visibility on going vehicular traffic moving on those Parra two "Y" road."

The Petitioner entered into an development agreement with J.E.F. Constructions and applied for a construction license for construction of a residential building in survey no. 121/28 on or about 16.9.2002 after obtaining necessary NOCs from PWD, Electricity, etc. The construction license applied for by the petitioner was kept pending at the Panchayat meetings held on 26/09/2002 in view of the Gram Sabha resolution dated 21/1/2001 and as the land was under acquisition, but at the next meeting on 16/10/2002 the resolution of 26/09/2002 was not confirmed as the acquisition was not approved by the Goa (Legislative) Assembly.

5. In the meantime, a proposal which was submitted by the local MLA vide letter dated 11/06/2002 for acquisition and construction of a traffic island in the petitioner's property surveyed under No.121/28, was processed by letter dated 27/6/2002 of the Assistant Engineer, PWD, but apparently did not make much progress and on 21/10/2002 the Village Panchayat was informed that the proposal was cancelled.

6. On 25/10/2002 vide resolution No.7(2), the approval of construction licence to the Petitioner was opposed but vide resolution No.7(5) it was passed and on the next date, i.e 26/10/2001, the Petitioner was issued the construction licence.

7. The respondent no.3 in his affidavit in reply has stated that the Village Panchayat of Parra is one of the villages comprising his Constituency. It is stated by him that the plot of the petitioner was situated between the Parra Calangute public road and the Parra Saligao public road and it was quadrilateral (triangular?) in shape, abutting the two roads; that on account of increased traffic flow to Calangute, Arpora, Baga and Candolim, accidents take place at the junction and, as such, the villagers had approached him to move the authority, concerned for correcting the geometrics of the said T junction (or is it inverted Y junction?) and for widening the width of the road so that the accidents could be minimised. According to him, the Village Panchayat at its meeting held on 15/3/2002 had resolved to forward the file of the petitioner to concerned department along with the Gram Sabha resolution taken on 21/01/2001. According to him, after the petitioner contracted to sell the land to a influential builder by name Dayabai Patel, matters took a different turn and at the next meeting held on 16/10/2002, the minutes of meeting held on 26/09/2002 were sought not to be confirmed on the ground that the project was not approved by the Goa Assembly for land acquisition and apparently at this point of time there was change of mind by one of the pancha members of the Village Panchayat, etc.

8. The respondent no.3 filed an application dated 1/11/2002 under Section 178(1) of the Act to the Director of Panchayats followed by another application dated 22.11.2002 as according to respondent no.3, the resolution no.6 dated 25/10/2002 and the subsequent building permission granted to the petitioner was unjust, unlawful and improper, as it was passed in a hurriedly and in a surreptitious manner and it was opposed to the resolution of the Gram Sabha dated 21/01/2001. It was stated by him that inspite of Gram Sabha resolution and the efforts of the local MLA to construct a roundabout at that point and inspite of the Village Panchayat declaring the area an accident prone zone and putting up notice board to that effect, the present local Village Panchayat had passed a resolution granting permission for construction of a storeyed building. It was stated that resolution was passed on 25/10/2002 and the Panchayat issued licence on the next date without waiting for confirmation of the minutes of the meeting held on 25/10/2002, previous meeting it was stated that this smelt of corrupt practice and it was against the Panchayat rules.

9. Some citizens from Parra filed a Writ Petition, being Writ Petition No.425/2002 which came up for hearing before the Division Bench of this Court on 11/03/2003 and it was disposed of on that day. The petitioners therein has sought a direction to the Village Panchayat to revoke the license granted to the petitioner on 26/10/2002 without giving effect to the resolution of the Gram Sabha on 21/01/2001. By then, respondent no.3's application to the Director of Panchayats was dismissed by order dated 31/01/2003 and as observed by the learned Division Bench the said order was not challenged. The learned Division Bench took note of the fact that before the order dated 31/01/2003 was passed, the petition was already pending and yet there was no challenge to the said order dated 31/01/2003. The Division Bench also noted that the construction had come up to the level of the second floor and, therefore, proceeded not to entertain the said Writ Petition.

10. The Secretary for panchayats by the impugned order had directed the construction to be stopped but by order dated 2/05/2003 in this Writ Petition, the petitioner was allowed to complete the construction with a rider that the petitioner would not claim any equities of any nature whatsoever in this Writ Petition and, accordingly, this Court has been informed that the said construction has been completed.

11(a). The Director of Panchayats, in respondent no.3's application filed before him under Section 178(1) of the Act came to the conclusion that the Gram Sabha had no authority to pass a resolution beyond the scope of its functions as laid down in sub-section (1) of Section 6 of the Act and any resolution of the Gram Sabha whereby the private property is proposed to be reserved and locked for any public purpose, without notice to its owners and without making provisions for payment of compensation to its owners is contrary to law and, therefore, ultra vires of the provisions of the Act and the rules made thereunder.

11(b). The Director of Panchayats also came to the conclusion that the resolution no.6 passed by Village Panchayat at its meeting held on 25/10/2002 by majority issuing building permission to the petitioner was legal since it was within the powers of the respondent Panchayat and moreover the technical authorities like the Town & Country Planning Department and the Technical Officer/Assistant Engineer of P.W.D. had given clearances of issuance of construction license to the respondent no.3 (the petitioner, herein).

12. The above two conclusions, are amongst others arrived at by the Director of Panchayats, which have been precisely recorded in para 34, clauses (i) to (ix). The other two clauses/conclusions which may be relevant for the disposal of this petition are clauses nos.(vii) & (viii); they read as follows;

(vii) the petitioner has failed to make out a case under Section 178 of the Act, for suspension of the execution of the resolution of the respondent no.1 Panchayat on merits.

(viii) The resolution of the Panchayat dated 25/10/2002 has been already executed and operated upon by the Panchayat by issue of building permission dated 26/10/2002 and therefore this Authority has no power to declare the said resolution of the Panchayat as illegal when it was already operated and executed as per the ruling of this Court published in 1995(1) GLT 302 which was applicable to the case.

13. The Director of Panchayats then proceeded to dismiss the application made to him by the respondent no.3, Dr. Wilfred E. D'Souza, the then local MLA, but nevertheless sent a copy of the judgment/order to the Secretary (Panchayats), Government of Goa, who has been delegated the powers to decide issues under Sub-section (2) of Section 178 of the said Act.

14. The conclusion No.34(viii), appears to have been based on the judgment of this Court in the case of Fracisco Joaquim Fernandes (1995(1) GLT 302), wherein it was held by this Court that the Director of Panchayats had no power to declare an order or a resolution of a Panchayat to be illegal when it has already been operated or executed. This view at present does not appear to be correct in the light of subsequent decision of this Court in the case of Shri. Guno Vinayak Gaude Vs. State of Goa through the Chief Secretary and others in Writ Petition No.181/2004 by judgment dated 17/12/2004 wherein a single Judge of this Court has taken note of the fact that Section 178 of the Act correspondents to Section 308 of the Maharashtra Municipal Councils (Nagar Panchayats and Industrial Townships) Act, 1965 and with reference thereto has observed that the full Bench of this Court has held in the case of Sanjay Govind Sapkal and Ors. Vs. Collectorate of Dhule and Ors. (2003(6) LJSOFT 106) after considering the decision of the Apex Court in Municipal Board, Kannauj Vs. The State of U.P. & Ors. (AIR 1971 SC 2147) that the power to suspend the resolution was an interim arrangement and even if an order or resolution passed by Municipal Council is implemented, executed or given effect to, the power to Section 308 (1) can be exercised and execution or implementation can be suspended by the Collector, if the conditions laid down in the said provision are shown to be present, and therefore, the view of the full bench is applicable to the provisions of Section 178 of the Act. The view of the learned Division Bench in 1995(1) G.L.T. 302 has now to give way to the view of the Full Bench in 2003(6) LJSOFT 106.

15. The question before this Court at present is not whether the Director of Panchayats was right or the Secretary (Panchayats) was wrong but the question essentially is whether the Secretary, Panchayats, could have exercised his jurisdiction under Section 178(2) of the Act when respondent no.3's application under Section 178(1) of the Act, was dismissed by him.

16. The Secretary, Panchayats, disagreed with the Director of the Panchayats that the Gram Sabha has powers to dispose and resolve only about the developmental programmes of the current financial year as contemplated by Section 6(1)(d) of the Act and his conclusion that the Gram Sabha resolution was ultra vires of the Act and rules and was ab initio void was also not correct. The Secretary, Panchayats, has opined that the scheme of the Act definitely gives the Gram Sabha, as an institution a higher position, in the hierarchy of the local self Government at the Village level and that is clear from the fact that the Gram Sabha has been empowered to constitute a minimum of two supervisory committees to supervise the Panchayat's work and under Section 6(4) of the said Act, the decisions taken by the Gram Sabha are binding on the Panchayat, if they are not contrary to rules and regulations. The Secretary, Panchayats, therefore set aside the findings of the Director of Panchayats enumerated in para 35(i) and (ii) and concluded that the resolution dated 21/01/2001 was very much in force as it was not cancelled by subsequent meetings and therefore directed that a Gram Sabha meeting be held confirming its own earlier resolution and in case the earlier resolution was not confirmed, the license issued to the petitioner would be automatically valid and in case it confirmed the decision, resolution dated 25/10/2002 of the Village Panchayat would stand suspended if the land was acquired and compensation paid to respondent no.2.

17. Section 4 of the Act provides for the constitution of the Gram Sabha and provides that all persons whose names are for the time being entered as electors in the electoral roll for a Panchayat shall be deemed to constitute the gram Sabha for that Panchayat. Section 5 provides for four ordinary meetings of the Gram Sabha to be held on any Sunday of January, April July and October of every year to be convened by the Sarpanch. Special meetings shall also be held. Section 6 provides for the functions of Gram Sabha and one of the functions of the Gram Sabha in terms of Section 6(1)(d) is to give approval for the development and other programmes of the work proposed for the current financial year when the matter is placed before the Gram Sabha by the Sarpanch. Sub-section 4 of Section 6 provides that the decision taken by the Gram Sabha shall be binding on the Panchayat provided it is not contrary to the rules and regulations framed under this Act or any other law for the time being in force and it shall be the duty of the Sarpanch to execute the same as early as possible. Sub-section (5) of Section 6 further provides that any person aggrieved by the decision of the Gram Sabha, may prefer an appeal to the Director within a period of 30 days from the date of such decision and the Director's decision on such appeal shall be final.

18. Section 7 of the Act provides for the constitution of the Panchayats and Section 60 provides for the functions of the Panchayats. Section 62 deals with the general powers of the Panchayat and Section 178 which we are much concerned with , reads as follows;

178. Power of suspending execution of unlawful orders or resolution - (1) 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 any 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.

(2) When the Director makes an order under Sub-section(1), he shall forthwith forward to the Government and the Panchayat or Zilla Panchayat affected thereby a copy of the order with a statement of the reasons for making it, and the Government may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as it thinks fit."

19. Shri. Lotlikar, the learned Senior Counsel appearing on behalf of the petitioner (in Writ Petition No.178/2003) submits that the Secretary, Panchayats, ought to have held that he had jurisdiction to consider the correctness of the order passed by the Director of Panchayats and either confirm or rescind or modify the same only if the Director of Panchayats had chosen to suspend the resolution of the Panchayat on any of the grounds mentioned under Sub-section (1) of Section 178 of the Act and in the case at hand, the Director of Panchayats having declined to exercise his powers under sub-section (1) of Section 178 of the Act, there was no authority nor jurisdiction for the Secretary, Panchayats, to reconsider the decision of the Director of Panchayats. Learned Senior Counsel submits that merely because erroneously he has forwarded a copy of the judgment/order dated 31/03/2003 to the Secretary, Panchayats, for further necessary action, this did not warrant review of or reconsideration of the said judgment of the Director by the Secretary and therefore the entire exercise done by the Secretary, Panchayats, is without jurisdiction. In fact, it appears that this objection was raised before the Secretary, Panchayats, stating that there was no need for him to confirm the order of the Director because the Director had actually not suspended the resolution of the Village Panchayat nor he had prohibited the doing of any act by the Panchayat and therefore the reference was to be dismissed. The Secretary, Panchayats, concluded that the powers of the Government which were delegated to him under sub-section 2 of Section 178 of the Act were neither appellate nor revisional, but were by way of continuation of proceedings started by the Director under Section 178(1) and for this view of his, he derived support from judgment of this Court reported in 1995(1) GLT 302.

20. Shri. Lotlikar learned Counsel next submits that the Gram Sabha could not have passed a resolution in relation to private property without notice to the petitioner. Learned Senior Counsel submits that the Village Panchayat granted permission to the petitioner after obtaining the technical approvals from the competent authorities as required under the Building Rules and therefore the exclusive jurisdiction whether to grant the license or not was with the Village Panchayat and in case such an important function is ceded to the Gram Sabha then the Gram Sabha will take over the powers of the Village Panchayat.

21. On the other hand, Shri Karpe, the learned Counsel appearing on behalf of respondent no.3 submitted that there was no appeal filed before the Director as required in terms of sub-section (5) of Section 6 of the Act against the decision of Gram Sabha dated 21/01/2001 and therefore the Director could not have gone into the legality of the said resolution. Shri Karpe, the learned Counsel appearing on behalf of respondent no.3 vehemently has argued that the Secretary, Panchayats, has not decided the issue finally and he has left it to be decided by the Gram Sabha, and, as such, it will be decided by the Gram Sabha and, therefore there is nothing wrong with the impugned order and the petitioner who is also a member of the Village Panchayat cannot shy away from such an order. Shri Karpe submits that the application filed by respondent no.3 was filed in the larger interest of the Village and not in his private capacity. Learned Counsel submits that the resolution of the Village Panchayat granting construction license to the petitioner is contrary to the resolution of the Gram Sabha and that could not have been allowed as the Gram Sabha represents the entire Village and in terms of sub-section 4 of Section 6 its decisions are binding on the Village Panchayat.

22. Shri. Lawande on behalf of the petitioner Village Panchayat has submitted that the petitioner in fact had challenged the Gram Sabha resolution before the Director of Panchayats. However, learned Counsel has not been able to make any submission with reference to sub-section 5 of Section 6 of the Act that any challenge had to be made by an appeal to be filed within 30 days.

23. As already seen, from sub-section (1) of section 178 of the Act that the Director of Panchayats can suspend a resolution passed by the Village Panchayat in case it is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public or to lead to the breach of peace, and, when he makes an order of such suspension in terms of sub-section (1) of Section 178, he is required to forthwith forward to the Government and the Panchayat, affected thereby, a copy of the order with the statement of the reasons for making it and thereafter the Government i.e the Secretary, on whom powers are conferred by the Government, may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period it thinks fit.

24. The Section itself shows that it consists in two parts. Sub-section (1) which gives power to the Director to suspend the resolution, for reasons stated therein and sub-section (2) which requires him to submit his decision of suspension to the Government for its orders.

25. Admittedly, the Director of Panchayats did not entertain the petition of respondent no.3 and in fact dismissed the same as he found that the resolution of the Village Panchayat of 25/10/2002 was within the powers of the Panchayat as the technical authorities had given clearance for the construction license of the petitioner and as the resolution of the Gram Sabha was ultra vires the provisions of the Act. In fact, the Director of Panchayats in terms of clause 35(vii) had held that the respondent no.3 had failed to make out a case under Section 178 for suspension of the execution of the resolution of the Village Panchayat and had dismissed the petition of respondent no.3. No doubt, a copy of his Judgment/order was forwarded to the Secretary, Panchayats, for further action under Sub-section 2 of Section 178 of the Act. As rightly pointed out on behalf of the petitioner, the question of taking further action by the Secretary, Panchayats, would have been called for only in a case where the Director of Panchayats had suspended the resolution either because it was unjust, unlawful or improper, etc. and then only the question placing the same before the Secretary of Panchayats would have arisen to confirm or to rescind the same or to direct that it would continue to be in force with or without modification permanently or for such period as it thinks fit. In my view, the authority and jurisdiction conferred on the Government i.e. the Secretary of Panchayats under sub-section (2) of Section 178 could be exercised by him only in a case where a resolution/order was suspended by the Director as being unjust, unlawful etc. and not otherwise.

26. A careful reading of sub-section (2) of section 178 would show that when the Director makes an order under sub-section (1) and this order can only be of suspension, that he is required to forward to the Government a copy of the Order and then the Government may either confirm or rescind the order or direct it to continue to remain in force with ore without modification permanently or temporarily. In case, an order or resolution of the panchayat is not suspended, there is no question of the Government taking any further action even if the Government is informed of the dismissal of the application.

27. In my view, only because the copy of the order dated 31/01/2003 was sent to the Secretary for Panchayats, it did not give him jurisdiction or authority to review the order of the Director and come to his own conclusion. Once the Director had dismissed the application in terms of sub-section (1) of Section 178, there was no question of the Secretary for Panchayats exercising his authority or jurisdiction in terms of sub-section (2) of Section 178 of the Act. In other words, he would get jurisdiction only in case a positive action of suspension was taken by the Director and the matter was referred to him for his further orders. The Secretary for Panchayats had no jurisdiction, in my view, to entertain the so called reference made to him by the Director of Panchayats. In fact, there was no reference made by the Director of Panchayats to the Secretary of Panchayats and only because a copy of the order was sent to the Secretary the same did not clothe him with jurisdiction to proceed in terms of sub-section 2 of Section 178 of the Act. As already stated, the Secretary was sent a copy of the judgment/order dated 31/01/2003 in a case where respondent no.3's petition was dismissed under sub-section (1) of Section 178 of the Act and in such a case there was no jurisdiction to be exercised by the Secretary of Panchayats in terms of Sub-section 2 of Section 178 of the Act. The jurisdiction of the Government under subsection (2) of section 178 of the Act can be termed to be supervisory or revisional nature and can be exercised only in cases where the Director suspends a resolution or order but not otherwise.

28. In the above view of the matter, the Writ Petitions succeed. The impugned order of the Government/Secretary for Panchayats dated 24/03/2003 is hereby set aside for want of jurisdiction, with no order as to costs.

29. Before concluding, it may be observed that there is still light at the end of the tunnel and a traffic island can still be built at the junction of the two roads at the top corner end of the triangular shaped land of the petitioner. This I say on the basis of the plan produced by the respondent no.3 which is at page 238 of the first Writ Petition, the construction plan of the petitioner at page 73 and the photographs at page 241. According to the learned counsel appearing for the parties, the photograph at page 241 show the position after the petitioner has carried out the construction of the residential building. The construction appears to have been carried out by the petitioner towards the base of the triangular portion of his property though the building is positioned vertically to the said base but there is certainly enough space where a traffic island can be constructed in case the Gram Sabha, the Village Panchayat still want to construct the same and the Government really desirous of acquiring the land.

Petitions allowed.