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2012 DIGILAW 1767 (BOM)

Shri Govind K. Shet v. Additional Director of Panchayats-II

2012-09-14

F.M.REIS

body2012
JUDGMENT:- Heard Shri Anthony D'Silva, learned Counsel appearing for the petitioner and Ms. S. Linhares, learned Addl. Government Advocate appearing for the respondent no.1. None for the remaining respondents though served. 2. The above petition challenges an order passed by the respondent no. 1 dated 20.09.2011, whereby an application filed by the petitioner to intervene in Panchayat Appeal No. 143/2010 came to be dismissed. 3. Briefly, the facts of the case are that the petitioner is an owner of the land admeasuring an area of 322 square metres of the property bearing survey no.46/7 situated at Orgao Village within the jurisdiction of Village Panchayat of Tivrem-Orgao. It is further the contention of the petitioner that the respondent no.3 has carried out some illegal construction partly in the land of the petitioner. The records further reveal that the local Panchayat has directed the demolition of the said illegal construction. But however, the respondent no.3 had preferred an appeal before the respondent no. 1 being Panchayat Appeal No.100/2008. In the said proceedings, the petitioner had filed an application for intervention which came to be allowed by order dated 03.03.2010. The appeal preferred by the respondent no.3 came to be disposed of by judgment dated 10.08.2010 whereby the respondent no.1 inter-alia remanded the matter to the concerned Panchayat for fresh decision. After the said remand, it appears that the Panchayat again passed an order for demolition of the impugned structure. The respondent no.3 again preferred an appeal before the respondent no. 1 being Panchayat Appeal No. 143/2010. In the said appeal, the petitioner filed an application for intervention which came to be rejected by the impugned order dated 20.09.2011. Being aggrieved by the said order, the petitioner has preferred the present petition. 4. Shri A. D'Silva, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that by the earlier order in respect of the same disputed construction, the petitioner was permitted to intervene, but however; the respondent no. 1 whilst passing the impugned order dismissed a similar application filed by the petitioner. The learned Counsel further pointed out that the disputed construction is located in a part of the property of the petitioner and as such, any order passed by the respondent no.1 would affect the right of the petitioner as far as the property of the petitioner is concerned. The learned Counsel further pointed out that the disputed construction is located in a part of the property of the petitioner and as such, any order passed by the respondent no.1 would affect the right of the petitioner as far as the property of the petitioner is concerned. The learned Counsel further pointed out that it is well settled that any person whose right is affected with an illegal construction can intervene for the purpose of assisting the authorities in deciding the appeal preferred by the disputant. The learned Counsel as such pointed out that the impugned order cannot be sustained. 5. On the other hand, Ms. S. Linhares, learned Addl. Government Advocate appearing for the respondent no. 1 has submitted the orders of this Court. Remaining respondents though served have failed to remain present. 6. I have considered the submissions of the learned Counsel appearing for the petitioner. The records reveal that by an earlier order dated 03.03.2010, the application for intervention of the petitioner in respect of the same disputed construction was allowed. Considering that the dispute before the respondent no.1 in Panchayat Appeal No. 143/ 2010 is pertaining to the same disputed structure, the question of passing any contrary order whilst passing the impugned order by the respondent no.1 cannot be justified. It is not disputed that the original complaint that an illegal construction carried out by the respondent no.3 was in fact filed by the petitioner herein. No doubt, merely because a person is a first informant by itself may not entitled such person for intervention in the appeal but however in case such person disclose prima facie any right which would be affected by the disputed structure, it does not preclude the authorities to permit such party to intervene in an appeal preferred challenging the order of the demolition passed by the Panchayat. 7. In the present case, the records reveal that it is the contention of the petitioner that the disputed structure is in fact partly constructed in the property belonging to the petitioner surveyed under no. 46/7 of the said Village. Hence, prima facie, some right was no doubt disclosed by the petitioner which would entitle him to intervene in the appeal preferred by the respondent no.3 challenging the demolition order passed by the local Panchayat. The respondent no. 46/7 of the said Village. Hence, prima facie, some right was no doubt disclosed by the petitioner which would entitle him to intervene in the appeal preferred by the respondent no.3 challenging the demolition order passed by the local Panchayat. The respondent no. 1 whilst passing the impugned order has not considered the said aspect and went on premise that the petitioner is seeking for demolition of an encroachment in his property. Taking note of the contention of the petitioner that the disputed structure is in the property belonging to the petitioner, I find that the petitioner is entitled to intervene in the appeal preferred by the respondent no.3. Hence, I find that the impugned order passed by the respondent no.1 dated 20.09.2011 cannot be sustained and deserves to be quashed and set aside. All contentions of both the parties on merits are left open. 8. In view of the above, Rule is made absolute in terms of prayer (a). Ordered accordingly.