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2018 Supreme(Bom) 255

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. BHADANG, J.
Fr. Mario Pires, Through Legal heir, Nalini Da Rosa Fernandes - Appellant
Versus
Village Panchayat of Calangute, through its Secretary - Respondent
Writ Petition No. 749 of 2014
Decided On : 26-02-2018

Advocates Appeared:
For the Petitioner:J.E. Coelho Pereira, Senior Advocate with V. Braganza, Advocate.
For the Respondent:N. Pai, J.J. Mulgaonkar, Advocates, A. Razak, Government Advocate.

Headnote:

Goa Panchayat Raj Act, 1994 - Section 66 - Contract Act - Section 28 - Constitution of India ,1950 - Article 226 and 227 - Order of demolition – Contentions - Demolition notice - Order of demolition - Petitioner wrote to Village Panchayat on requesting to furnish him copies of maps and plans prepared by Director of Land and Survey Records on basis of which, notices were issued - According to the petitioner said plans were never supplied to him - On petitioner filed separate replies to show cause notices - On respondent Village Panchayat issued three demolition orders bearing Demolition - According to petitioner demolition notice were executed and structures subject matter of these orders were demolished - In so far as demolition order is concerned petitioner challenged same before learned Additional Director of Panchayat in Panchayat Appeal came to be withdrawn in view of clarification by Panchayat that petitioners structure in property bearing Survey will not be demolished under garb of said demolition order – Held, There are no rights arising out of or emanating from any contract in present case nor affidavit/ undertaking can be construed as a contract - In court considered view learned Counsel for second respondent is right in contending that this is yet another attempt to gain time as period within which order shall attain finality cannot be assessed with any amount of precision - entire action against petitioner was initiated as far back as in year - Even show cause notice in pursuance of which impugned order of demolition was passed is said structures are commercial structures and are constructed without obtaining any permission from GCZMA or Village Panchayat - For this reason it is not possible to accept or to act on basis of undertakings – Petition dismissed

JUDGMENT :

1. The challenge in this petition under Article 226 and 227 of the Constitution of India, is to the judgment and order dated 14/11/2014, passed by the learned Ad hoc District Judge, Panaji in Civil Revision Application No.31/2014. By the impugned judgment, the learned Ad hoc District Judge, while dismissing the Revision Application, has confirmed the action of demolition of the disputed structure, initiated by the Village Panchayat, Calangute.

2. Although this petition arises out of the demolition notice dated 15/10/2012 (wrongly mentioned as 12/10/2012), some antecedent events will have to be noticed, in order to appropriate the rival contentions raised by the parties.

3. The brief facts, necessary for the disposal of the petition, may be stated thus : That in the year 2008, ten show cause notices came to be issued by the first respondent Village Panchayat to the petitioner under Section 66 of the Goa Panchayat Raj Act, 1994, (Act, for short) directing the petitioner to show cause as to why an action for demolition of the alleged illegal and unauthorised structures situated in Survey No.242/1 and 246/1 of Village Panchayat, Calangute, should not be taken. On receipt of the show cause notices, the petitioner wrote to the Village Panchayat on 09/08/2008, requesting to furnish him the copies of the maps and plans prepared by the Director of Land and Survey Records, on the basis of which, notices were issued. According to the petitioner, the said plans were never supplied to him. On 11/08/2008, the petitioner filed separate replies to the 10 show cause notices. On 27/02/2009, the respondent Village Panchayat issued three demolition orders bearing nos.(i) VP/Cal/F-20/Demolition/08-09/6233, (ii) VP/Cal/F-20/Demolition/08-09/6234 and (iii) VP/Cal/F- 20/Demolition/08-09/6235. (For the sake of convenience, they are referred to as demolition order Nos.6233, 6234 and 6235). According to the petitioner, the demolition notice nos.6234 and 6235 were executed and the structures subject matter of these orders were demolished. In so far as the demolition order no.6233 is concerned, the petitioner challenged the same before the learned Additional Director of Panchayat in Panchayat Appeal No.106/2009. The said appeal came to be withdrawn in view of the clarification by the Panchayat that the petitioner's structure in property bearing Survey No.242/1 will not be demolished under the garb of the said demolition order. On 19/08/2011, the Village Panchayat issued a corrigendum to the demolition order No.6233 and substituted Survey No.246/1 of village Calangute therein. According to the petitioner, although the said demolition order was addressed to the petitioner, the structure standing in Survey No.246/1 does not belong to him, whereas the structure on Survey No.242/1 was belonging to the petitioner. In view of the corrigendum, the petitioner apprehended that under the garb of execution of the order nos.6233 as corrected, the petitioner would attempt to demolish the structure in Survey No.242/1 and hence, the petitioner challenged the same in Panchayat Appeal No.103/2011 before the Director of Panchayats.

4. The learned Additional Director partly allowed the appeal on 02/01/2012 and remanded the matter back to the respondent Village Panchayat for deciding it afresh in accordance with law, after giving an opportunity to the petitioner of being heard in the matter.

5. It appears that this Court vide order dated 29/02/2012 in PILWP No.5/2012, filed by one Mr. Sylvester D'Souza, directed the respondent Panchayat to decide the matter pursuant to the order of remand dated 02/01/2012.

6. In view of this, the Village Panchayat sought a reply from the petitioner, which was filed on 21/03/2012. On 21/07/2012, the Village Panchayat issued yet another order of demolition bearing No.VP/CAL/F/20/Demolition/12-13/1037 (Demolition Order No. 1037, for short), which was in respect of a swimming pool. According to the petitioner, the said swimming pool is locat





















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