Shri Jayanand G. Madkaikar vs Union of India and Others

R.K. Batta, J.—These appeals and cross objections arise out of common judgment passed by learned Addl. District Judge, South Goa, Margao and, as such, it is proposed to dispose of the same by common judgment. Two separate suits were filed by the appellants, but admittedly the facts in both the suits are more or less similar and, as such, it would suffice if facts in one of the two suits are recorded in this judgment. The facts in Civil Suit No. 12/96 filed by appellant Jayanand Madkaikar are that he is holder of plot of land on lease basis in the property belonging to respondent no. 5 in survey No. 90/9 wherein the appellant had constructed a shop in the year 1990 and since then is running a general store therein. The said shop was duly registered with Village Panchayat of Curchorem under No. 951. It was constructed partly with masonary walls and partly with wooden planks with the roofing covered by corrugated zinc sheets and tiles. The appellant is paying house tax in respect of the said shop and is also paying rent to the respondent no. 5. The said shop is duly recorded in survey records in his name. The said shop being old had deteriorated and was in dilapidated condition as a result of which the appellant by letter dated 5th January, 1985 requested the Village Panchayat of Curchorem to grant N.O.C. for carrying out necessary repairs namely to reinforce the walls with cement plaster to prevent the shop from collapsing. The Panchayat by certificate dated 23.2.85 allowed the appellant to carry out necessary repairs to the said shop without exceeding the plinth area or making any change in the suit structure. The appellant, accordingly, carried out necessary repairs to the walls with cement plaster and did not exceed the plinth area or made any structural changes. On 13.12.85 Village Panchayat of Curchorem issued notice to the appellant in order to show cause as to why the pucca structure erected by him should not be demolished and the appellant by reply dated 21.12.85 clarified that no new structure had been constructed and only repairs had been carried out which were permitted by the Panchayat. The Panchayat was satisfied with the said reply. However, the appellant received notice dated 12.2.86 from respondent no. 4 alleging that he has been appointed by respondent no. 3 u/s 49 of the Goa, Daman and Diu Village Panchayats Regulation 1962 (hereinafter called the said Regulation) and under the said notice the appellant was required to demolish the suit shop within 24 hours from the receipt of the said notice. The appellant filed a suit seeking permanent injunction against the respondents from interfering with the suit shop.

Initially respondent no. 5 was not a party in any of the suits but, she filed an application under Order 1, Rule 10 C.P.C. for joinder in the suit as defendant. This application was allowed by the learned District Judge by order dated 8th October, 1986. The appellant challenged the said order in revision in this court, but the learned Single Judge of this court vide order dated 27th February, 1987 rejected the said revision. Consequently respondent no. 5 filed written statement in both the suits.

The stand taken by respondent no. 5 is that the appellant was never holder of land on lease basis as alleged by him, but it is true that her Attorney Mr. Prazeres Pinto had somewhere in the year 1960 allowed the appellants to erect a small temporary wooden structure admeasuring 8 sq.m. as a mere licensee. It was further contended that the said structure was purely temporary one, exclusively made with wooden planks and covered with zinc sheets. It was also contended that the appellants had no right to repair or reconstruct the structure without her consent or permission; that the appellants did not confine themselves by carrying out mere repairs, but, on the contrary not only made structural changes but also increased the plinth area to 12.75 sq.m. somewhere in the month of March, 1985. According to her, even repairs could not have been carried out without her permission and this construction was done without licence of the Village Panchayat. It was also urged by respondent no. 5 that since the Panchayat did not take any action, Collector had issued demolition of illegal structure and the appellant was given opportunity by the Collector before issuing the order of demolition of illegal structure. It was contended lastly that the action of the authorities under the Village Panchayats Regulation could not be challenged by way of suit.

Respondent no. 4 had raised preliminary objections regarding non-joinder of Village Panchayat of Curchorem and also owner of the property namely respondent no. 5. According to respondent no. 4 the construction had been carried out without obtaining valid and proper licence and the said construction was illegal and unauthorised. It was further urged on behalf of respondent no. 4 that since the Village Panchayat had failed to initiate appropriate and suitable action for removal of illegal construction, the Collector namely respondent no. 5 had issued order of demolition in accordance with the provisions of section 49 of the said Regulation.

On the pleadings of the parties following issues had been framed :-

Whether the plaintiff proves that he is the holder of land on lease basis in the property of the defendant no. 5.

Whether the plaintiff proves that he constructed the shop in the year 1960 partly with wooden planks and partly with masonary walls with the roofing covered by corrugated zinc sheets and tiles.

Whether the plaintiff proves that he carries out the repairs to the walls without exceeding the plinth or any structural changes.

Whether the plaintiff proves that the proceedings were dropped by the Village Panchayat.

Whether the defendant no. 5 proves that the plaintiff extended the original structure and constructed a pucca construction without obtaining her permission. What relief. What order.

The trial Judge rightly struck off issues no. 1 and 5 being irrelevant for the decision of the case and answered issues no. 2 to 4 in the negative. Accordingly, the trial Judge dismissed both the suit vide judgment dated 31st July, 1995 which is impugned in these two appeals and in respect of which cross objections have been filed by respondent no. 5.

The point for determination which has been agitated before me relates to scope of section 49 of the said Regulation i.e. whether the Collector acting u/s 49 could order demolition of the structures in question upon failure of the Panchayat to take necessary action in terms of section 83(5) of the said Regulation.

On this aspect, learned advocate Shri Z. de Souza, appearing on behalf of the appellants, relied upon a judgment of the Division Bench of this court reported in Vithal Dewarshi Naik Banaulikar and Another Vs. The Collector of Goa and Others, which dealt with the said question. On the basis of the said ruling, it was urged by learned advocate for the appellants that section 49 would come into play only if there is breach of duties prescribed u/s 31 and section 31B read with Schedule II; that section 49 is not attracted to the exercise of power u/s 83(5) and failure of the Panchayat to take action thereunder. Alternatively, the second point which was urged by learned advocate for the appellants is that section 49 comes into play only if there is willful and persistent default in performance of any duty imposed on it by the said Regulation and the record of the case shows that there was no persistent default on the part of the Panchayat so as to invite action u/s 49 of the said Regulation. The third contention advanced by him is that an order u/s 49 results in civil consequences and, as such, principles of natural justice come into play due to which the Collector is bound to issue show cause against the party against whom action is proposed to be taken. No such show cause notice was issued in this case. On this aspect he placed reliance on Baldev Singh and Others Vs. State of Himachal Pradesh and Others, .

Learned Govt. Advocate Shri C. Ferreira urged before me that there is a corresponding duty as against the power conferred u/s 83(5) of the said Regulation and in case of failure of the Panchayat to take action in respect of illegal construction without any licence, the Collector is well within section 49 to take action in the matter. On the question of persistent default, it was urged by him that this point was not taken by the appellants before the trial court and the same cannot be permitted to be raised in first appeal and that the Collector had issued show cause notice to the Panchayat but the Panchayat did not take any action and the conduct of the Panchayat under the circumstances amounts to persistent default. On the question of show cause u/s 49, it was submitted by him that no show cause is required to be given since the construction in this case was fresh and in this respect reliance has been placed on two judgments of the Apex Court in Common Cause A Registered Society Vs. Union of India and others, and Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, . He also urged that the appellants had suppressed material facts from the court as the appellants never disclosed that their application for reconstruction had been rejected; that the licence granted to the appellants for repairs was issued only by the Sarpanch and was never placed before the Panchayat and, as such, the appellants are not entitled to any injunction in view of section 41(i) of the Specific Relief Act which lays down that when the conduct of the plaintiff or his agents had been such as to disentitle him to the assistance of the court, the injunction cannot be granted.

Learned Advocate Shri S.M. Usgaoncar, appearing on behalf of respondent no. 5 urged before me that the trial Judge was not entitled to review the question of joinder of respondent no. 5 in the judgment since this matter had already been settled by an order of the learned District Judge and the revision filed by the appellants against the said order had been rejected. The cross objections pertain to the observations made in this respect in para 3 of the impugned judgment. Therefore, according to learned advocate for respondent no. 5 the findings in para 3 cannot be sustained.

Insofar as this aspect of the matter is concerned, learned advocate for the appellants, has joined issue with learned advocate for respondent no. 5 and he concedes that the trial Judge was not entitled to review this aspect and, as such there is no objection if the findings in para 3 are held to be bad. Therefore, cross objections in both these appeals are bound to succeed and are allowed.

On merits of the case, learned advocate for respondent no. 5 submitted that though the illegal construction was made somewhere in the month of March, 1985, no action had been taken by the Panchayat in the matter and, as such the Collector had rightly exercised power u/s 49 in ordering performance of duty on the part of the Panchayat regarding demolition of illegal construction which was without any licence. It was further urged by him that non-exercise of power u/s 83(5) by the Panchayat amounts to non-performance of duty and, as such, section 49 is attracted. In this connection it was pointed out by him that the last four lines of para 11 of the judgment of the Division Bench, upon which reliance has been placed by learned Advocate for the appellants, do speak of power under the Regulation to do their duty with which they are charged or to facilitate the carrying out of their duty under the Regulation and, as such, section 49 is clearly attracted in the facts and circumstances of these cases in view of the said observations of the Division Bench of this Court.

Insofar as facts are concerned, it has come on record that the appellants had in fact applied for reconstruction of the suit shops but permission was not granted. Thereafter, the appellants filed an application for carrying out repairs without making any structural change or extending the plinth area which was granted by the Sarpanch without reference to the Village Panchayat. The case of the respondents is that the suit shops were reconstructed, but according to the appellants, they have merely repaired the suit shops. This controversy would be relevant only if it is held that the Collector has jurisdiction u/s 49 of the said Regulation, to enforce the control over erection of buildings by the Panchayat u/s 83 of the said Regulation. This question had come up before the Division Bench of this Court in Vithal Dewarshi Naik Banaulikar and another v. The Collector of Goa (supra). The common question of law which arose in the writ petitions in the said cases was formulated as under :-

Whether the action prescribed in sub-section (5) of section 83 of the Goa, Daman and Diu Village Panchayat Regulation, 1962 is a duty that falls within section 49 of the said Regulation ?

It is not necessary to give facts of all the four writ petitions involved therein, but it would suffice if briefly the facts in one of the writ petitions are noted at this stage. In writ petition No. 84/90 the petitioner had lodged a complaint with the Village Panchayat vide letter dated 13th May, 1986 in respect of illegal constructions and asked the Village Panchayat of Siolim to take necessary action. Village Panchayat, Siolim, issued two notices for demolition but the respondent no. 3 therein did not respond and the Village Panchayat, Siolim failed to demolish the said construction despite reminders. The petitioner moved an application on 26th August, 1986 before the Collector for action u/s 49 of the said Regulation. It appears that the Collector also did not take any action and ultimately the petitioner approached this court in writ jurisdiction.

In this judgment, scheme of the Regulation, object of the Regulation and relevant provisions were considered. The learned Judges of the Division Bench came to the conclusion :-

The duty which is referred to in section 49 is the duty which always the Panchayat is called upon to do, not by way of circumstances and not depending upon the contingency of existence of circumstances, but by the Regulation itself. The duties that are contemplated u/s 49 are, therefore, clearly the duties with which the Panchayats are perpetually charged with to carry out and not dependent upon contingencies, and these are the cases that are referred to in section 31 read with Schedule II of the Regulation. The distinction between powers on one hand and duties as contemplated in section 49 on the other, may be further clarified as follows : Powers are to be exercised only on the existence of certain contingencies. Duties are imposed by the Regulation and are not dependent upon the existence of any contingency. Therefore, though it may be true that the word "may" appearing in sub-section (5) though permissive in form must be interpreted to mean command and that it is mandatory for the Panchayat to take action under the said sub-section (5) under certain existing circumstances, it is material to note that this action can be taken only under certain circumstances.

Thus the learned Judges of the Division Bench had distinguished power and duty and were of the opinion that section 49 of the Regulation would cover only duties which are specifically enumerated u/s 31 read with Schedule II and it would not cover within its ambit action u/s 83(5) of the said Regulation. While dealing with writ petition no. 84/90 it was specifically pointed out in para 12 of the judgment that an order u/s 49 is not called for in respect of pulling down of a structure simpliciter i.e. where it does not concern the duties u/s 31 or various works mentioned in Schedule II and therefore no order could be passed granting mandamus against the Collector though mandamus could be granted against the Village Panchayat in the facts and circumstances of the said cases for demolition of illegal construction.

I am bound by the ruling of the Division Bench of this court which had squarely considered the moot question as to whether action prescribed in sub-section (5) of section 83 of the said Regulation is a duty that falls within section 49 of the said Regulation and the learned Judges of the division Bench answered the said question in the negative. It is, there-fore, not necessary to discuss further questions raised by learned advocates for the respondents in this respect. On this count alone the appellants are entitled to succeed in these appeals.

Alternatively, I would like to point out that even if the action was covered u/s 49 of the said Regulation, the record shows that there was no persistent default so as to exercise jurisdiction u/s 49 of the said Regulation. It is no doubt true that this point was not raised by the appellants in the court below, but it goes to the very jurisdiction of the Collector to act and the Collector cannot act under S. 49 of the said Regulation unless there is willful and persistent default. I cannot accept the contention of learned Advocate Shri C.F. Ferreira that one show cause notice issued by the Collector to the Panchayat and non-compliance of the same would amount to persistent default. Persistent means recurring default and not single default. The Concise Oxford Dictionary, 9th Edition, defines ''persistent'' as continuing obstinately; persisting, constantly repeated, etc.

In this context, assuming that Collector could take action u/s 49 for non-action by Panchayat u/s 83(5), in the facts and circumstances of the case, there is also merit in the contention of learned advocate for the appellants that the principles of natural justice would require show cause notice by the Collector to the party against whom the order is sought to be enforced. The Panchayat had not taken any decision on reply to show cause filed by the appellants and, as such, the Collector, in the circumstances, had to first decide whether the appellants had shown sufficient cause. He was, therefore, required to decide the same on existing show cause issued by Panchayat or after issuing a fresh show cause by him. It is now well settled position in law that where exercise of power results in civil consequences, unless the statute specially rules out the application of natural justice, the rules of natural justice would apply. There is no dispute on this aspect on the part of learned advocates for the respondents especially in view of facts and circumstances of this case though, learned advocate Shri C.F. Ferreira sought to urge on behalf of respondents relying on two rulings of the Apex Court that it is not necessary to issue show cause notice in the case. In Common Cause v. Union of India (supra) show cause notice was in fact issued as to why the respondent minister should not be made liable to pay damages for his malafide action in allotting petrol pumps. Therefore, this ruling will not help the respondents in any manner. The second ruling upon which reliance has been placed relates to encroachment of public places wherein it has been held by the Apex Court:

No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time consuming process leading to putting a premium for highhanded and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Municipal Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed.

In this case also the Municipal Corporation had stated in the affidavit that 21 days notice was being given before taking action for ejectment of the encroachers.

The above observations were made by the Apex Court in relation to encroachment in public places and the same cannot be ipso facto applied to private properties. Therefore, on account of non-issue of show cause notice by the Collector, the action taken by the Collector is vitiated in the facts and circumstances of this case. The question of suppression of fact that permission to reconstruct was refused cannot be permitted to be used as a shield by the respondents to deny relief to the appellants especially when the action of the Collector was without jurisdiction and alternatively not justified under the circumstances of the case. For the reasons mentioned above, the appeals as well as cross objections are allowed. The judgment and decree of the learned Addl. District Judge dated 31st July, 1995 are hereby set aside. Respondents no. 1 to 4 are hereby restrained from taking any action in relation to the suit shops. It goes without saying that respondent no. 5 shall be at liberty to pursue any remedy available to her in connection with the suit shops and this judgment would not come in the way of respondent no. 5 in seeking such remedy under the law. In the facts and circumstances I would leave the parties to bear the costs.