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2023 Supreme(Online)(Bom) 311
HIGH COURT OF BOMBAY
B. P. COLABAWALLA, J
Smt. Santana Rodrigues – Appellant
Versus
Francisco Xavier Fernandes – Respondent
Writ Petition No. 1947 of 2021 | Writ Petition No. 1389 of 2021
For the Appellants/Petitioners: Mr. Shivraj Gaonkar, Mr. P. Sirvoicar
For the Respondents: Mr. Tukaram Gawas, Mr. Byron Rodrigues
The appellate authority under the Goa Regularization of Unauthorized Construction Act, 2016 cannot condone delay in filing appeals beyond the specified period as it lacks express statutory power.
Headnote:(A) Goa Regularization of Unauthorized Construction Act, 2016 - Section 7 - Limitation Act, 1963 - Jurisdiction of appellate authority to condone delay in filing appeal beyond stipulated period of sixty days - Court found that the Appellate Authority lacks the power to condone such delay as not stipulated in relevant Act; ruling follows the precedent set by M. P. Steel Corporation vs. Commissioner of Central Excise, where it was held that the Limitation Act applies only to courts. (Paras 3, 11, 12)
(B) Appellate Authority's role - Authority's jurisdiction is strictly constrained by statutory provisions, and cannot assume powers not expressly granted; any deviation is deemed an error apparent on the record. (Paras 15, 19)
Facts of the case:
The petitioner challenged an order allowing the respondent's appeal regarding unauthorized construction, which was filed after a significant delay beyond the sixty days as prescribed by the Act.
Findings of Court:
The impugned order was quashed since Respondent No.3 had no authority to condone the delay.
Issues: The central issue addressed was the authority of Respondent No.3 to condone delay under the Act.
Ratio Decidendi: The court ruled that the appellate authority could not entertain appeals beyond the stipulated limitations unless expressly allowed by the legislative framework.
Result: The writ petition was ruled in favor of the petitioner, effectively nullifying the impugned order.
| Table of Content |
|---|
| 1. consent for sequential hearings (Para 1 , 2 , 3) |
| 2. background of illegal construction disputes (Para 4 , 5 , 6) |
| 3. petitioner's argument against delayed appeal (Para 7 , 8) |
| 4. respondent's support for entertaining delayed appeal (Para 9 , 10) |
| 5. court's view on authority's jurisdiction (Para 11 , 12 , 14) |
| 6. supreme court's stance on limitation act (Para 13) |
| 7. order to quash previous decision due to jurisdictional error (Para 19 , 20) |
JUDGEMENT:
1. This Writ Petition was originally ordered to be heard along with Writ Petition No.1389 of 2021 (F) as the parties were the same. However, all parties have agreed that Writ Petition No.1947 of 2021 (F) be heard first and disposed of and thereafter Writ Petition No.1389 of 2021 (F) be taken up. Accordingly, Rule is issued in the above Writ Petition. With the consent of parties, Rule made returnable forthwith and heard finally.
2. Writ Petition No.1947 of 2021 (F) [the above Writ Petition] was originally disposed of by a Judgment and Order dated 03.08.2022. After this order was passed, the Petitioner herein, preferred a Review Application to review/set aside the said order inter alia on the ground that the said order did not take into consideration the binding decision of the Hon'ble Supreme Court in the case of M. P. Steel Corporation vs. Commissioner of Central Excise [(2015) 7 SCC 58], and neither did it consider or deal with the arguments canvassed on behalf of the Petitioner [on the basis of the said Judgment]. This Court, after hearing the parties, by its order dated 10.01.2023, allowed the Review Application and set aside the order dated 03.08.2022. Consequently, it was directed that the Writ Petition be placed on board for admission once again. This is how the matter has come up before me today.
3. The above Writ Petition is filed challenging the order dated 25.08.2021 [for short the “impugned order”] passed by Respondent No. 3, which is Appellate Authority under Section 7 of The Goa Regularization of Unauthorized Construction Act, 2016 , (for short the 'Act of 2016'). The short point involved in this Writ Petition is whether Respondent No.3, while exercising appellate powers under Section 7 of the Act of 2016, has the power to condone the delay in case the Appeal is filed beyond the period sixty days from the date the Authorized Officer passed his order [under Section 3 of the Act].
4. Since this is the limited issue raised in this Writ Petition, very few facts need to be noted. In the Writ Petition it is stated that the Predecessor of the Petitioner filed a complaint dated 13.09.2006 with Respondent No. 5 against the illegal construction of a RCC structure carried out by Respondent No.1 on property bearing Survey No. 166/1 of Village Borim of Ponda. It was the case of the Petitioner that Respondent No.1 illegally constructed the RCC structure under the garb of repairs.
5. Due to the inaction of Respondent No.5, the Petitioner filed an Application [dated 03.10.2006] under Section 66(5) of the Goa Panchayat Raj Act, 1994 before the Deputy Director of Panchayats. The Deputy Director of Panchayats, by his order dated 19.07.2010, allowed the Application and directed Respondent No.1 to demolish the illegal construction, failing which, Respondent No. 5 was directed to demolish the illegal structure and file a compliance report.
6. It appears that thereafter, there were several cross litigations between the parties [as set out in the Petition], but which are not really germane for the purpose of deciding the issue raised in the present Petition. Suffice it to state, that on 16.10.2018, Respondent No.1 filed an application for regularization under the Act of 2016 before Respondent No.4. The said application was filed under Section 3 (1) of the Act of 2016. On 06.12.2018, Respondent No.4 rejected the application filed by Respondent No.1 [dated 16.10.2018] seeking regularization. It is to challenge this order of Respondent No.4 that Respondent No.1 filed an Appeal before Re
