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2024 Supreme(Bom) 556
IN THE HIGH COURT OF BOMBAY
Bharat P.Deshpande, J.
Gajanan V. Navelkar - Appellant
Versus
Village Panchayat of Virnoda - Respondent
Misc.Civil Application No. 212 of 2024 (F)
Decided On : 14-02-2024
J.J.Mulgaonkar, Advocate, Akshay Shirodkar, Advocate, Akshata Bhat, Advocate, R.G.Ramani, Advocate, Pranav Kakodkar, Advocate
IMPORTANT POINT
The court established that without a specific legislative provision, unauthorized constructions cannot be regularized, and executive rules cannot create such provisions.
Headnote:
REVIEW - GOA PANCHAYAT RAJ ACT - Sec. 245, Goa Panchayat Raj Act, 1994; Rule 3(6), Goa Daman and Diu Village Panchayat (Regulation of Buildings) (Amendment) Rules, 1971 - The court discussed the provisions of the Goa Panchayat Raj Act, 1994, particularly Section 245, which repealed previous regulations and emphasized that no provision exists for the regularization of unauthorized constructions. The court interpreted Rule 3(6) of the amended rules, concluding that it does not provide a basis for regularization under the Act, thus influencing the decision to reject the review application.
Fact of the Case:
The applicant sought a review of a previous judgment asserting that the court erroneously found no provision for regularization under the Goa Panchayat Raj Act, 1994. The applicant cited Rule 3(6) of the Goa Daman and Diu Village Panchayat (Regulation of Buildings) (Amendment) Rules, 1971, as a basis for regularization.
Finding of the Court:
The court found that the applicant failed to demonstrate any provision under the Goa Panchayat Raj Act, 1994 that allows for the regularization of unauthorized structures. It concluded that the rules cited by the applicant were repealed and did not provide a valid basis for the claim.
Issues: Whether there exists a provision under the Goa Panchayat Raj Act, 1994 for the regularization of unauthorized constructions, and if the rules cited by the applicant are applicable.
Ratio Decidendi: The court held that the absence of a legislative provision for regularization under the Goa Panchayat Raj Act, 1994 precludes the application of the previously existing rules, which have been repealed. The court emphasized that executive rules cannot substitute legislative authority.
Final Decision: The review application was rejected due to lack of merit, affirming that no provision exists under the Goa Panchayat Raj Act, 1994 for the regularization of unauthorized constructions.
JUDGMENT/ORDER
1. Heard Mr. J.J. Mulgaonkar with Akshay Shirodkar, learned Advocates appearing for the Applicant, Ms. Akshata Bhat, Additional Government Advocate Respondent No. 1, 3, 4 and 5 and Mr. R.G. Ramani, Senior Advocate with Mr. Pranav Kakodkar, Advocate for Respondent No.2.
2. The application is for review of the Judgment passed by this Court on 14/12/2023 in Writ Petition No. 2398/2023(F). The only ground on which review is sought is that Para 17 of the Judgment passed by this Court records erroneous finding that there is no provision for regularisation under the Goa Panchayat Raj Act, 1994.
3. Mr. Mulgaonkar, learned Counsel appearing for the Applicant submits that the Rule 3 (6) of Goa Daman and Diu Village Panchayat (Regulation of Buildings) (Amendment)Rules 1971, amended by amendment Rules 1985 provide that regularisation is permissible.
4. Rule 3 as per the amended Rules 1985 read thus:- 2. Amendment of Rule 3.- In rule 3 of the Goa, Daman and Diu Village Panchayats (Regulation of Buildings) Rules, 1971:
(i) for clause (b) of sub-rule (2), the following clause shall be substituted, namely: -
"(b) After enquiry and verification of title of the property, as may be necessary, the Panchayat may grant permission for the construction of kacha house in Panchayat areas without the approval of the Technical officer subject to the following conditions: -
(ii) in sub-clause (ii) of clause (b) of sub-rule (2), for letters and figures "Rs.10.000", the letters and figures "Rs.25.000" shall be substituted; (iii) after clause (a) of sub-rule (3), the following new. clause shall be inserted, namely: - "(aa) - In cases of villages which came under the jurisdiction of the Planning and Development Authority, the applicant shall submit. the application for building permission directly to the said Authority";
(iv) for sub-rule (b), the following sub-rule shall be substituted, namely: -
"(b) The Senior Town Planner or the Planning and Development Authority, as the case may be, shall whenever the applications are referred or made to them, communicate their decision to the Village Panchayat or to the applicant concerned, as the case may be, within one month from the receipt of the application. In the case of a Village falling within the jurisdiction of the Planning and Development Authority, the applicant shall, on the receipt of the approval of the Planning and Development Authority, produce the same before the concerned Village Panchayat and the said Panchayat shall issue the building permission, within a period of one week."; (v) for sub-rule (5), the following sub-rule shall be substituted, namely:
"(5) Subject to the provisions of sub-rule (4), the decision of the Technical Officer or the Senior Town Planner concerned, as the case may be, under sub-rule (3) above, shall be final, and the Panchayat shall communicate its sanction, modification or refusal to the applicant within a period of one week from the date of receipt of such a decision.";
(vi) after sub-rule (5), the following new sub-rule shall be inserted, namely: -
"(6) The Panchayat may direct a person who erects or reerects or commences to erect or re-erect any building without its permission to present to it an application for such permission, within a period of thirty days, and may grant such permission after following the procedure laid down in this rule subject to the payment of penalty, which shall not be less than one and half times and not more than two times of the fee payable for such permission."
5. Mr. Mulgaonkar would submit that such Rules are saved under Sec. 245 of Goa Panchayat Raj Act, 1994. He submits that in view of the above contentions, the observations of this Court in the case of Manohar Korgaonkar Vs. Gurudas Korgaonkar in Writ Petition no. 616/2008 decided on 19/2/2013 would apply and since the application for regularisation is still pending with the concerned authorities, the Applicant is entitled for such regularisation. He also placed reliance in t
