Writ Petition No. 18 of 2012

9th February, 2012

Petitioner Counsel: Mr. J.J. MULGAONKAR
Respondent Counsel: Mr. P. RAOMr. G. SHIRODKAR

JUDGMENT

JUDGMENT :- Heard Shri J. J. Mulgaonkar, learned Counsel appearing for the petitioner, Shri P. Rao, learned Counsel appearing for the respondent no.1 and Shri G. Shirodkar, learned Government Advocate appearing for the respondent no.2.

2.Rule. Heard forthwith by consent of learned Counsel.

3.Learned Counsel appearing for the respective respondents waive service.

4.The above petition challenges the order passed by the respondent no.2 dated 19.07.2011 whereby the petitioner has been directed to clear the land by removing the rubble stones and any other material dumped in the lane including the trees planted by him in the lane. Shri J. J. Mulgaonkar, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the learned Mamlatdar was not notified to act under the provisions of the Goa Land (Prohibition from Construction) Act, 1995 (hereinafter referred to as "the said Act"). The learned Counsel further pointed out that the respondent no.2 had no jurisdiction to decide the dispute as the respondent no.1 had no locus standi to file such objection. The learned Counsel further pointed out that there was breach of principle of natural justice whilst passing the impugned order as according to him there was no opportunity given to the petitioner to cross examine the respondent no.1 and the Talathi who had given the report. The learned Counsel further pointed out that by the impugned order, besides the material etc., which have been ordered to be removed, the respondent no.2 has also directed the petitioner to remove the trees which is not contemplated as per the provisions of the said Act. The learned Counsel as such pointed out that by the impugned order, finding has been arrived at to the effect that the disputed area is a public lane which would come in the way of the petitioner in the suit pending before the Civil Court filed against the respondent no.1 herein. The learned Counsel further pointed out that on the garb of the impugned order the house of the petitioner may be demolished. The learned Counsel as such submitted that the impugned order deserves to be quashed and set aside.

5. On the other hand, Shri P. Rao, learned Counsel appearing for the respondent no.1 has supported the impugned order. The learned Counsel pointed out that by the notification published in the Official Gazette dated 22.09.1995, the Mamlatdar has been notified to perform such function in accordance with sub-section (1) of Section 6 of the said Act. The learned Counsel further pointed out that the lane where the disputed activities has been carried out by the petitioner is located in the Communidade's land and as such, the question of contending that the learned Mamlatdar had no jurisdiction to pass the impugned order in accordance with the said Act is misconceived. The learned Counsel further pointed out that as far as the contention of the learned Counsel appearing for the petitioner to the effect that the findings arrived at by the learned Mamlatdar would come in his way in the proceedings pending before the Civil Court, the learned Counsel fairly conceded that it is well settled that any findings given by the Revenue Authority on such aspects are not binding on the Civil Court. The learned Counsel further pointed out that there is no breach of principles of natural justice as according to him, the orders passed by the Mamlatdar are in exercise of the powers of summary nature which does not contemplate any such cross examination and as such submitted that no interference is called for in the impugned order.

6.Shri G. Shirodkar, learned Government Advocate appearing for the respondent no.2 has supported the impugned order. But however, the learned Counsel has fairly accepted that the question of removing trees in exercise of the powers under the said Act does not survive.

7. Having heard the learned Counsel and on perusal of the records, the contention of the learned Counsel appearing for the petitioner that the Mamlatdar has not been notified in accordance with the said Act to perform the function as an authority under the said Act cannot be accepted in view of the notification published in the Official Gazette as pointed out by the learned Counsel appearing for the respondent no.1.

8. The next contention of the learned Counsel appearing for the petitioner to the effect that there was breach of principles of natural justice cannot be accepted as admittedly a show cause notice was given to the petitioner which has been duly replied. There is also no dispute that before passing of the impugned order the petitioner was given an opportunity of being heard and that a site inspection was also carried out at the request of the petitioner. Hence, I find that there was no breach of any principles of natural justice as sought to be contended by the learned Counsel appearing for the petitioner taking note of the nature of such proceedings. With regard to the contention of the learned Counsel appearing for the petitioner to the effect that the findings arrived at by the learned Mamlatdar would be binding on the Civil Court, taking note of the contention of the learned Counsel appearing for the respondent no.1, I find that the said contention does not survive.

9.With regard to the contention of the learned Counsel appearing for the petitioner to the effect that the learned Mamlatdar had no power to direct the removal of the trees in exercise of the provisions of the said Act, I find that the petitioner is justified to that extent. The contention of the learned Counsel that the house of the petitioner may be demolished has no substance as the plan produced on record clearly depict that the disputed portion where the petitioner has been directed to remove the material is shown in black colour which does not cover any portion of the house of the petitioner. The impugned order directing the removal of the trees has to be as such quashed and set aside.

10.In view of the above, I pass the following :

ORDER

(i)The impugned order dated 19.07.2011 is modified and the direction to the removal of the trees is quashed and set aside.

(ii)Remaining part of the order is upheld.

(iii)Rule is disposed of in above terms.

11.The petition stands disposed of accordingly with no order as to costs.

Ordered accordingly.