Bombay High Court
The Village Panchayat Of Nachinola Thr. ... vs Nasli Jamshed Batliwala And 3 Ors on 9 October, 2024
2024:BHC-GOA:1753
2024:BHC-GOA:1753
WP/541/2024
Shakuntala
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.541 OF 2024
The Village Panchayat of Nachinola,
Through its Secretary,
Ms. Ranjana Raul,
36 years age, Having office at:
Village Panchayat of Nachinola,
Nachinola, Bardez, Goa ... PETITIONER
VERSUS
1. Mr. Nasli Jamshed Batliwala,
Major of age,
2. Kanchi Anilkumar Mehta,
Major of age, Both residents of
Acron Water Vista, 13, Carona,
Aldona, Bardez, Goa.
3. Mrs. Miriam Jamshed Batliwala,
Major of age, Resident of 14B,
Darbhanga Mansion, Carmichael
Road, Mumbai, Maharashtra, 400026.
4. Ms. Shameem E. Botawala alias
Shamim E Botawala, Major of age,
Resident of G-2, Pemino South,
1-B, S.K. Barodawala Road,
Mumbai, Maharashtra_- 400 026. ...RESPONDENTS
Mr. Ashwin D. Bh0be with Ms. Shaizeen Shaikh, Advocates
for the Petitioner.
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WP/541/2024
Mr. Nigel Da Costa Frias with Mr. Shane Coutinho,
Advocates for the Respondent.
CORAM:- BHARAT P. DESHPANDE, J.
DATED :- 09th October, 2024
ORAL JUDGMENT.
1. Rule.
2. Rule is made returnable forthwith.
3. Heard Mr. Ashwin D. Bh0be with Ms. Shaizeen Shaikh,
Advocates for the Petitioner and Mr. Nigel Da Costa Frias
with Mr. Shane Coutinho, finally with consent.
4. Mr. Bhobe learned counsel for the
Petitioner/Panchayat would submit that an application for
construction license was filed by Respondent No. 1 along
with necessary documents. However, the Panchayat issued
notices for inspection on two occasions. In the meantime
Respondent No. 1 approached the Block Development Officer
as the period of 30 days expired from the date of application.
The Block Development Officer though issued notices,
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adjourned the matter and allowed the period of 30 days to
pass over and then observed that the license is deemed to
have been granted. The Panchayat approached the Additional
Director of Panchayat by filing an appeal. However, the
concerned Appellate Authority without issuing notice to the
Respondent observed in its order dated 01/11/2023 that
appeal cannot be entertained in view of the deemed
provisions and hence, the same is not maintainable.
5. The Petitioner then approached the Revisional Court by
filing a revision.
6. Mr. Bhobe submits that though the Revisional Court
while considering the provisions and the approach of the
Additional Director, observed that the appeal was
maintainable and that it should have been decided, failed to
remand the matter and discussed the other aspects and
rejected the revision, which is challenged in the present
matter.
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7. It is the contention of Mr. Bhobe that once the
Revisional Court observed that the appeal filed before the
Additional Director of Panchayat is maintainable and ought
to have been decided on merit, the only recourse available to
the Revisional Court was to remand the matter to the
Additional Director of Panchayat to decide it on merit.
8. Per contra, Mr. Nigel Costa learned counsel appearing
for the Respondent No. 1 would submit that the amended
provision of Section 66 of the Goa Panchayat Raj Act would
clearly show deeming provision of grant of license incase
Panchayat fails to decide the application within 30 days. He
further submit that even the Block Development Officer
before whom such report is placed or an appeal is filed, is
duty bound to decide such matter within 30 days.
9. Mr. Frais submits that in this matter, the Block
Development Officer took up the matter, however, since the
period of 30 days was over, he closed the said proceedings
observing that the license is deemed to have been granted
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and nothing survives in the said matter. He would then
submit that even nothing survives in the appeal which was
filed before the Additional Director of Panchayat which has
been rightly considered by the Revisional Court.
10. The provisions of Section 66 of the Panchayat Raj Act
(Amended provisions) would clearly demonstrates that
Panchayat is duty bound to determine whether permission
should be granted or not, within 30 days from the date of
receipt of application. The Panchayat is also duty bound to
communicate its decision to the Applicant and the Secretary
of the Panchayat is again duty bound to forward the
application to the Block Development Officer on expiry of
such period of 30 days. The Applicant may also file an appeal
within a period of 30 days from the date of expiry of the
period, to the Block Development Officer, who upon receipt
of such application, either from the Secretary or an appeal
from the Applicant, proceed to determine whether such
permission should be given or not. If the Block Development
Officer fails to determine whether such permission should be
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given or not and communicate his decision to the Applicant
within a period of 30 days from the date of intimation by the
Secretary or on receipt of appeal, immediately upon
expiration of such period of 30 days, such permission shall be
deemed to have been granted to the Applicant to execute the
work strictly in accordance with technical clearance and
plans approved by the Town and Country Planning
Authorities and in conformity with the conditions laid down
by all other Statutory Authorities.
11. A perusal of this provision would go to show that the
Panchayat is duty bound to decide the application within 30
days. Similarly, if the Panchayat determines whether such
permission should be given or not, must communicate its
decision to the Applicant and further the Secretary shall
forward the application to the Block Development Officer on
expiry of period of 30 days. This shows that the Panchayat
must take a decision within a period of 30 days. If it fails to
do so, the Secretary is duty bound to forward such
application to the Block Development Officer.
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12. It further shows that on receipt of such intimation from
the Secretary of Village Panchayat or on receipt of Appeal by
the Applicant, incase of inaction on the part of the Village
Panchayat, the Block Development Officer shall proceed to
determine whether such permission should be given or not.
13. The amended provision of Sub-section (2) of Section 66
would then further provide that if the Block Development
Officer fails to determine whether such permission should be
given or not and communicate his decision to the Applicant
within a period of 30 days from the date of intimation by the
Secretary or receipt of Appeal, immediately, upon expiration
of such period of 30 days, such permission shall be deemed
to have been granted.
14. The above provision would go to show that on expiry of
period of 30 days from the receipt of application by the
Village Panchayat and thereafter by the Block Development
Officer, such Authorities when failed to take action or
determine such application, becomes functus officio. In such
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manner, the legislature has granted deeming provision of the
permission to construct in accordance with the plans which
are already approved by the Town and Country Planning
Department and in conformity with the other authorities.
15. Thus, duty of the Block Development Officer is equally
in conformity with that of the Village Panchayat, to decide
such application or appeal within a period of 30 days. If he
fails to decide it, he becomes functus officio of the said
matter.
16. The main contention of the Village
Panchayat/Petitioner is that notices were issued for site
inspection on two occasions and in the meantime, the period
of 30 days was over. The Respondent No. 1 filed an appeal
before the Block Development Officer and thereafter, the
Block Development Officer issued notices and the matter was
adjourned.
17. It is the contention of Panchayat that the Block
Development Officer failed to take decision and allowed the
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period of 30 days to pass, and then simply observed in its
impugned order dated 04/09/2023 that the licenses deemed
to have been granted, and accordingly, the proceedings
before him became infructuous.
18. Such order of the Block Development Officer would
clearly go to show that he was duty bound to decide such
appeal within 30 days. Inaction on his part cannot give him
license to say that the proceedings have become infructuous.
The statute clearly casts a duty on the concerned authority to
decide the appeal within a time bound frame. If he is not able
to decide such appeal, it does not lie in his mouth to say that
the proceedings becomes infructuous. The Block
Development Officer then becomes functus officio and thus
need to close proceedings.
19. Be that as it may, the Petitioner challenged such order
of the Block Development Officer before the Additional
Director of Panchayat who again without considering the
grounds of appeal and without issuing notices to the other
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side, observed that the appeal is not maintainable since the
license is deemed to have been granted. Such cryptic order
passed by the concerned authority on 01/11/2023 was further
challenged by Panchayat by filing a revision under Section
201(b) of Panchayat Raj Act. While, deciding the said
revision on 16/05/2024, the Revisonal Court in paragraph 10
clearly observed that the remarks of the Additional Director
of Panchayat that the Appeal is not maintainable, is
incorrect.
20. Mr. Bhobe is fully justified in his submissions that once
the Revisional Court observed that such observation of the
First Appellate Authority is incorrect and the Appeal is
maintainable, the recourse available to the Revisional Court
is to remand the matter to the First Appellate Court.
21. However, it is observed that the Revisional Court went
ahead and decided the matter on merits, which was not
considered or decided by the First Appellate Authority. Thus,
it is clear that Revisional Court should have restricted itself
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to the observations of remanding the matter to the First
Appellate Authority so that the First Appellate Authority
would have been in a position to decide such appeal on its
own merit and on the grounds raised in the memo of appeal.
22. The Revisional Court, on the other hand usurped the
powers of the First Appellate Authority and decided the
contentions raised by the Respondent No. 1 as to how the
provisions has to be interpreted and how the order of the
Block Development Officer was correct.
23. Proper recourse available to the Revisional Court was
to quash and set aside the order dated 01/11/2023 passed by
the Additional Director of Panchayat in Appeal and remand
the matter to decide it on its own merits so that the Petitioner
as well as the Respondent would have had an opportunity to
argue the matter on merits.
24. For all the above reasons, impugned order passed by
the Revisional Court is required to be partly quashed and set
aside.
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25. The recourse available is to remand the matter to the
First Appellate Authority to decide the appeal filed by the
Panchayat/Petitioner in accordance with law and after
hearing both the sides.
26. Accordingly, the Revisional Court's order is modified to
the above extent by partly allowing such revision, the matter
stands remanded to Additional Director of Panchayat in
Appeal No. 343/2023 with the direction to hear both the
sides and decide such appeal on merit.
27. It is needless to mention that this Court has not
considered the merits and the grounds in the appeal and
accordingly, the First Appellate Court is free to decide the
contentions of both the sides in accordance with law, without
being influence by the observations of order of Revisonal
Court.
28. The parties shall appear before the Additional Director
of Panchayat on 11/11/2024 at 03:00 p.m. The Additional
Director of Panchayat shall thereafter hear the parties and
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decide the matter as expeditiously as possible.
29. Rule is made partly absolute in above terms.
BHARAT P. DESHPANDE, J.
09th, October 2024
