WP-25-2022.DOC

Niti

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.25 OF 2022

The Village Panchayat of

Velsao – Pale – Issorcim,

Through its Sarpanch,

Mr. Henrique De Mello,

aged 54 years, Velsao, PO

Cansaulim, Goa – 403712.

... Petitioner

Versus

1. The Ministry of Railways,

Through its Secretary,

Rail Bhavan, 256-A, Raisina

Road, Rajpath Area,

New Delhi – 110001.

2. South Western Railway,

Through its General Manager,

Gadag Road, Hubli,

Karnataka – 580020.

3. Rail Vikas Nigam Limited,

Through its Addl. General

Manager, Project – Office,

Margao Goa, Block A, 3^rd floor 5

& 6 L& L building, Near

Matanhy Saldanha,

Administrative Building,

Margao, Goa – 403601.

4. The State of Goa, Through

its Chief Secretary, Secretariat,

Porvorim, Goa – 403 521.

… Respondents

Mr. C.A. Ferreira with Ms. Norma Alvares and Mr. Om

D'Costa, Advocates for the Petitioner.

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Mr. P.P. Singh, Advocate for Respondent Nos.1 & 2.

Mr. Iftikhar Agha with Ms. V. Fernandes, Advocates for

Respondent No.3.

Mr. D. Pangam, Advocate General with Ms. M. Correia,

Additional Government Advocate for Respondent No.4.

CORAM:

M. S. SONAK &

BHARAT P. DESHPANDE, JJ.

Reserved on:

Pronounced on:

10^th OCTOBER 2022

11^th OCTOBER 2022

ORDER : (Per M.S. SONAK, J.)

1.

Heard learned Counsel for the parties.

2.

The Petitioner is a Village Panchayat. The Petitioner has

objections to respondent nos.1,2 & 3 undertaking works concerning

the railway track doubling project within areas of the Panchayat

jurisdiction. The Petitioner contends that permissions from the

Panchayat are necessary before the railways can undertake any such

works, particularly now that the Panchayats have been conferred a

constitutional status by the 73

rd amendment to the Constitution of

India.

3.

Based on the above, the Petitioner, by instituting the present

petition, has sought the following reliefs:

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"(1) For directions to the Respondents to remove the

structures and material placed within the jurisdiction

of the Petitioner authority in a time bound manner

and report compliance;

(2) For a declaration that no construction or

development work can be carried out by the

Respondent Nos.2 & 3 without a licence of the Village

Panchayat."

4.

According to us, the issue raised in this petition is entirely

covered against the Petitioner, in our judgment and order dated

03.08.2022 in Public Interest Litigation Writ Petition No.15/2021

(Ganv Bhavancho Ekvott & 4 Ors. V/s. South Western Railways

& 7 Ors.). In the said judgment and order, the Division Bench of this

Court (comprising of Dipankar Datta, CJ. & M.S. Sonak, J.) has

rejected a similar contention having regard to the provisions in Section

11 of the Railways Act, 1989. In particular, the Division Bench

referred to and relied upon the non-obstante clause with which

Section 11 of the Railways Act 1989 begins and the legal effect of such

a clause.

5.

However, Mr Ferreira, learned Counsel for the Petitioner,

submits that the present petition is instituted by a Panchayat, unlike

the previous petition that NGO and some private parties instituted.

He submits that the argument based on Article 243ZD of the

Constitution was neither addressed nor considered by the Division

Bench. He urged leave to only address this argument while admitting

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that the other issues raised in the petition might be substantially

covered by the decision earlier referred to. He also relied on a decision

of the Hon'ble Supreme Court that we shall discuss later.

6.

Mr Ferreira submits that in terms of Article 243ZD, the State

must constitute a District Planning Committee at the District level to

consolidate plans prepared by Panchayat and Municipalities in the

District and to prepare a draft development plan for the District as a

whole. The State legislature is required, by law, to make a provision

concerning the compo