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2014 Supreme(Bom) 79
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Albino Fernandes & Others
Versus
Village Panchayat of Siolem- Sodiem through its Secretary Siolem & Another
Writ Petition No.333 of 2006
Decided on: 16-01-2014
For the Petitioners:J.P. Mulgaonkar, J.J. Mulgaonkar, Advocates.
For the Respondents:N. Sardessai, L. Raghunandan, D. Shirodkar, Advocates.
The main legal point established in the judgment is the mandatory requirement of obtaining written permission from the Panchayat for any construction work, as per the provisions of the Goa Panchayat Raj Act, 1994.
Headnote:
Illegal Construction - Goa Panchayat Raj Act, 1994 - Section 64(1)(j), Section 82, Section 63(3), Section 66(4) - The court discussed the provisions of the Goa Panchayat Raj Act, 1994, particularly Section 64(1)(j), Section 82, Section 63(3), and Section 66(4), which deal with unauthorised construction, issuance of notices, and demolition of illegal construction. The court emphasized the requirement of obtaining written permission from the Panchayat for any construction work and the consequences of non-compliance with the rules.
Fact of the Case:
The petitioner repaired a compound wall on their property without obtaining prior permission from the Panchayat. The Panchayat issued multiple notices directing the petitioner to stop the construction and later to demolish the wall. The petitioner challenged the Panchayat's order, alleging lack of compliance with natural justice principles and the legality of the construction.
Finding of the Court:
The court found that the construction of the compound wall was illegal as the petitioner did not obtain the required permission from the Panchayat. The court upheld the Panchayat's order for demolition, emphasizing the mandatory nature of obtaining permission for any construction work.
Issues: The issues revolved around the legality of the construction of the compound wall, compliance with natural justice principles, and the authority of the Panchayat to issue demolition notices.
Ratio Decidendi: The court held that the construction of the compound wall without obtaining permission from the Panchayat was illegal, and the Panchayat's actions were in accordance with the provisions of the Goa Panchayat Raj Act, 1994. The court also emphasized the importance of obtaining written permission for any construction work.
Final Decision: The court dismissed the writ petition, upholding the Panchayat's order for demolition of the illegally constructed compound wall.
Key Points: - (!) The court held that construction of the compound wall without obtaining Panchayat permission is illegal and warrants demolition, under Section 66 and related provisions. - (!) Section 64(1)(j) empowers the Sarpanch to stop unauthorised construction and refer the matter to the Panchayat for decision. - (!) Section 66(1) requires written permission of the Panchayat for erection, alteration, or reconstruction of a building, including walls/retaining walls; repairs or additions require permission. - (!) Sections 63(3) and 66(3)-(4) cover show-cause, demolition, and cost recovery if there is non-compliance. - (!) The Additional Director of Panchayats upheld the demolition order, accepting lack of permission and blocking of public access as unlawful. - (!) The judgment references Syed Muzaffar Ali and others and discusses potential for regularisation where permitted by law or rules. - (!) Writ petition dismissed; no order as to costs; rule discharged. - (!) The respondents argued regularisation is not available; the petition cited to explore regularisation where legal under law. - (!) The petitioners argued lack of natural justice and that public access issue may be unresolved by Panchayat authority. - (!) The court notes sub-rule (6) of Rule 3 of the Rules allows regularisation where permissible and that petitioners may pursue such relief if available. - (!) The case records show notices under 64(1)(j), 82, 63(3), and 66(4) culminating in demolition order.
Question 1?
What is the legal consequence of repairing or constructing a wall without written permission from the Panchayat under Goa Panchayat Raj Act, 1994?
Question 2?
What is the proper procedure and grounds for the Panchayat to issue demolition or regularisation orders for unauthorised construction under Sections 64(1)(j), 63(3), 66(4), and 66(5) of the Goa Panchayat Raj Act, 1994?
Question 3?
What are the limits of the Panchayat's power to decide on public access and the role of regularisation for constructions done without prior permission?
Affidavit filed on behalf of the petitioner, by giving advance copy to the learned Counsel for the respondents, is taken on record.
2. Heard Mr. Mulgaonkar, learned Counsel for the petitioners and Mr. Sardessai, learned Counsel for the respondents.
3. By this petition, the petitioners have taken exception to the judgment and order dated 28/03/2006 passed by the Additional Director of Panchayats-II at Panaji, Goa, in Panchayat Appeal No. 182/2004.
4. The relevant facts, as stated by the petitioners, are as follows :
The petitioner is lawful owner in possession of the house–property situated at Tropa Vaddo, Sodiem, Siolem, Bardez, Goa bearing Survey No.215/11-A of Sodiem village. The said property is bounded on the east by a public drain. The petitioner has always had a small compound wall on the eastern part of the said property abutting public drain which wall also served as retaining wall. Due to heavy flow of rain waters through successive monsoons, the said retaining wall suffered damage over a period of years and required urgent repairs to prevent its imminent collapse and also to prevent soil erosion. Without a proper retaining wall, the mud from the petitioner's property would have found its way into the drain since the petitioner's property is at a higher altitude as compared to said drain. In the aforesaid circumstances, the petitioner repaired the said compound wall without doing any extension to the same, though in the process of repairs the height of the said wall got slightly raised. The respondents served a notice dated 06/10/2004 purporting to be under Section 64(1) (j) of Goa Panchayat Raj Act, 1994 ('the Act') directing the petitioner to stop the unlawful construction alleging that one Dilip Patre and Smt. Kalavati Vernekar had brought to the notice of the Sarpanch that the petitioner had been carrying out illegal construction of the compound wall blocking utility public access, without obtaining prior permission from the Panchayat. By another notice dated 06/10/2004 purporting to be under Section 82 of the Act, the petitioner was informed by the Sarpanch that the Village Panchayat wanted to conduct an enquiry into the complaint lodged by said Dilip Patre and Smt. Kalavati Vernekar and the petitioner was asked to remain present at the site on 08/10/2004 at 8.30 a.m. Subsequently, by an order-cum-notice dated 09/11/2004 under Section 63(3) of the Act, the petitioner was directed to stop the construction immediately on the receipt of the notice and was asked to show cause as to why the said unlawful construction should not be demolished and the costs recovered from the petitioner. In this notice, it was further stated that if the petitioner failed to comply with the same within 15 days, further action as contemplated under Section 64(4) of the Act shall be taken. The petitioner by his reply dated 24/11/2004, inter alia, stated that he had not done any illegal construction and that the compound wall had been always in existence protecting the public drain and serving as a retaining wall. He also stated that the persons, at whose behest the notice had been issued, were hostile to him and a civil suit was filed by one of them namely Shri Dilip Patre which was pending in the Civil Court at Mapusa. The petitioner requested the respondents to revoke the said notice. The respondents, finally, by notice dated 13/12/2004, under Section 66(4) of the Act, directed the petitioner to demolish the illegally constructed compound wall within 15 days from the date of receipt of this notice. In this notice it was further stated that if the petitioner fails to demolish, then the Panchayat would demolish the same. The petitioner preferred an appeal, under Section 66(5) of the Act, against the said order/demolition notice dated 13/12/2004 to the Director of Panchayats at Panaji. The said Panchayat Appeal No.182/2004 was heard by the Additional Director of Panchayats-II and by impugned judgment and order dated 28/03/2006, the
