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2021 DIGILAW 1035 (BOM)

Elsa Fernandes v. State Of Goa

2021-07-26

M.S.JAWALKAR, M.S.SONAK

body2021
JUDGMENT M.S. Sonak, J. - Heard Mr. Costa Frias, learned Counsel for the petitioners, Ms. M. Correia, learned Addl. Govt. Advocate for respondent nos. 1, 3, and 4, Ms. M. Monteiro, learned Counsel for respondent no.2 and Mr. A. Gosavi, learned Counsel for respondent no. 5. 2. Rule. 3. The rule is made returnable forthwith at the request of and with the consent of the learned counsel for the parties. 4. In this case, the Sarpanch has issued a notice under Section 64(i)(j) of the Goa Panchayat Raj Act, 1994 directing respondent no. 5 to stop the construction, produce necessary permission, failing which it was stated that necessary action will be initiated in term of the Goa Panchayat Raj Act, 1994 (said Act). 5. This was followed by Show Cause Notice dated 18/06/2021 issued by the Sarpanch to respondent no. 5 pointing out that the illegal construction work undertaken by respondent no.5 is causing obstruction to the movement of the vehicles and therefore, respondent no. 5 should show cause why the same should not be demolished. 6. Respondent no.5, without showing cause has instituted an appeal before Additional Director of Panchayat questioning the Show Cause Notice itself inter alia on the ground that the Sarpanch has no powers to issue such Show Cause Notice and that the same could have been issued only by the Secretary. Mr. Gosavi has relied on the decisions of this Court in Gangadhar Ramchandra Kharbe Vs. Sarpanch, Village Panchayat of Parra,2009 SCCOnLineBom 1804 and Ms. Surekha Narayan Kokane Vs. Smt. Reena Raulo Pilernkar Writ Petition No. 107/2016 decided on 20/04/2016. 7. The ruling in Suleka Kokane (supra) relies entirely on Gangadhar Ramchandra Kharbe (supra). In the later judgment, Section 47 of the said Act does not appear to have been read in its entirety, in as much as Section 47 does not state that only Secretary has powers to issue notices but Section 47 states that Secretary "shall also exercise the powers". 8. This issue was considered by yet another Single Judge of this Court in Mrs. Sofia Shabnam Vs. Village Panchayat Salvador-Do-Mundo in Writ Petition No.953 of 2019 decided on 07/07/2021. Besides, Mr. Costa Frias relied on a circular dated 10/07/2020 which also refers to the powers of the Sarpanch in such matters. He also relied on Mr. 8. This issue was considered by yet another Single Judge of this Court in Mrs. Sofia Shabnam Vs. Village Panchayat Salvador-Do-Mundo in Writ Petition No.953 of 2019 decided on 07/07/2021. Besides, Mr. Costa Frias relied on a circular dated 10/07/2020 which also refers to the powers of the Sarpanch in such matters. He also relied on Mr. Nazar Da Silva Vs State of Goa in Writ Petition No.19/2000 to submit that the directions were issued therein for compliance with the circular dated 10/07/2000. 9. Petitioners complain that merely because respondent no. 5 has instituted an appeal before the Additional Director, the Panchayat is not proceeding for disposing of its Show Cause Notice. Mr. Costa Frias points out that this is even though there is no stay granted by the Additional Director of Panchayat. 10. According to us, as long as there is no stay granted by the Additional Director of Panchayat, Village Panchayat cannot postpone the disposal of the show cause notice, merely because the appeal is pending before the Additional Director. The Panchayat is, therefore, directed to dispose of Show Cause Notice on its own merits as expeditiously as possible and in any case within four weeks from today. 11. Ordinarily, directions would have been issued to dispose of Show Cause Notice within two weeks itself. However, in this case, respondent no.5 has not filed any reply to the Show Cause Notice. Therefore, if the respondent wishes to file any reply, respondent no. 5 is granted liberty to do so within one week from today. If no reply is filed, then, the Panchayat to dispose of Show Cause Notice on the basis that respondent no.5 does not wish to file a reply in the matter. 12. The Additional Director of Panchayat to dispose of respondent no.5's appeal on its own merits. The Additional Director will have to take into consideration the aforesaid decisions of this Court while disposing of the appeal. 13. The Additional Director of Panchayat should also consider the issue as to whether respondent no.5 has any permissions for carrying out the construction and whether construction is in accord with law or not. In such matters, interim relief or final relief should not be granted for mere asking and based on some hyper-technical pleas. Ultimately, it is also the responsibility of the Additional Director of Panchayat to ensure that only the legal and authorized constructions are protected. In such matters, interim relief or final relief should not be granted for mere asking and based on some hyper-technical pleas. Ultimately, it is also the responsibility of the Additional Director of Panchayat to ensure that only the legal and authorized constructions are protected. 14. The petition is disposed of in the aforesaid terms by issuing directions to the Village Panchayat. 15. All concerned to act on the duly authenticated copy of this Order.