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Judgment
N.A. Britto, J.—This Writ petition is directed against judgment/order dated 26/10/2009 of the learned Additional Director of Panchayats, by which the order of demolition dated 19/04/2005 has been upheld.
Heard learned Counsel on behalf of the parties.
Records show that the petitioner had a stall with palm leaves of about 2x1.50 square meters in the property of respondent No. 3, surveyed under No. 80/6 of Velsao Village, known as "Fondunaikalem". This can be seen from RCS No. 46/1987/C as well as the sketch annexed to the petitioner''s application dated 27/03/1985 addressed to the Village Panchayat.
That stall got destroyed by fire on the night of 23/03/1985 and the petitioner with no objection of respondent No. 3''s aunty, by name Maria Carmo D''Souza, who then was one of the co-owners of the property repaired the same. Respondent No. 3 was plaintiff No. 2 in RCS No. 46/1987/C which was filed against the petitioner and his wife which was dismissed on 21/04/2001. The suit was filed with the allegation that on 1/04/1985 the defendants (petitioner herein and his wife) had erected six pillars of laterite stones and covered the roof with mangalore tiles now occupying an area of 4.11 X 4 square meters without the permission of the plaintiffs or valid license of Village Panchayat.
RCS No. 46/1987/C was dismissed on technical grounds, namely under the provision of Rule 9, Order 22, Code of Civil Procedure, but two things which emerge from the judgment in the said Civil Suit are that (1) the plaintiffs were held to be the owners of the suit property and (2) the defendants were held not to have proved that the suit construction was carried out with valid permission of the Village Panchayat. The said suit was dismissed on 21/04/2001. The first appeal filed against judgment/decree dated 21/04/2001 was dismissed on 26/03/2003 and the Second Appeal was dismissed on 24/08/2005.
Respondent No. 3 and his wife have now been held to be the owners of the suit property by virtue of judgment dated 23/07/1990 in RCS No. 5/1990. The respondent No. 3 filed a complaint against the illegal construction carried out by the petitioner to the Village Panchayat on or about 26/08/2003 and a site inspection was carried out on 2/09/2004 by the Village panchayat in the presence of the petitioner and respondent No. 3 and what was seen at the time of inspection has been shown by respondent No. 3 in his affidavit in reply filed in this petition and that is:
The structure of Mangalore roof tiles covering an area of around 48 square meters with dimensions 6.25 meters x 7.75 meters resting on 6 masonry stone pillars with roof resting on the compound wall of respondent No. 3.
A show cause notice was issued by the Village Panchayat to the petitioner on 11/01/2005. The petitioner filed a reply to it dated 24/01/2005 and, according to the Village Panchayat, the petitioner had failed to provide any evidence or document to support the erection of his non itinerant fixed structure in Survey No. 80/6 at Velsao. A demolition order was passed by the Village Panchayat against which the petitioner preferred an appeal to the Director of Village Panchayat and the learned Additional Director has been pleased to dismiss the same observing that the suit property was owned by the petitioner and it was fully established that the construction of 6 numbers laterite pillars with the roof extending and resting on the surrounding compound wall was totally illegal and the petitioner had not shown any documentary evidence to prove that he had obtained necessary permission from the Village Panchayat before starting the said construction. The learned Additional Director of Panchayat further noted that it was crystal clear from the site inspection report that the construction done by the petitioner was new and done without the permission of the Village Panchayat. In other words, both the authorities below have come to the conclusion that the construction carried out by the petitioner with the support of the 6 pillars and the wall of respondent No. 3 is illegal and without the permission of the Village Panchayat.
The contention of Shri Pangam, the learned Counsel on behalf of the petitioner, is that the respondent No. 3 having failed to demolish the petitioner''s structure in the said Civil Suit filed by the co-owners including respondent No. 3, respondent No. 3 filed a complaint dated 26/08/2003 to the Village Panchayat. The next submission of learned Counsel is that the petitioner was granted license by the Village Panchayat of Velsao-Pale on 1/04/1985 and the subject construction was carried out by the petitioner pursuant to the said license. Further submission is that the present Village Panchayat of Velsao-Pale-Issoricim could not have ordered the demolition of a construction of the petitioner as it was built up prior to the Village Panchayat of Velsao-Pale-Issoricim was reconstituted and, in any event, the construction was put up in the year, 1985 and therefore the present Panchayat of Velsao-Pale-Issoricim would have no jurisdiction to demolish the same. Learned Counsel pointed out to the application filed by the petitioner to the Sarpanch of Village Panchayat of Velsao-Pale dated 27/03/1986 which is accompanied with the NOC given by the said Maria Carmo D''souza, who then was one of the Co-owners of the suit property and the sketch given along with it.
In my opinion, none of the submissions made, on behalf of the petitioner can be accepted. As already stated what can be seen as burnt is a small stall with palm leaves of about 2 X 1.5 meters as stated by respondent No. 3 in the plaint of the Civil Suit No. RCS 46/1997 but also as depicted by the petitioner at page 118 of the paper book which is a sketch annexed by the petitioner to his application dated 27/3/1985 where the stall is shown within the area occupied by six pillars. The said application dated 27/03/1985 was a clever attempt on the part of the petitioner to put up a structure with 6 pillars of laterite stones, showing 8 pillars on the sketch without dimensions (in feet, meters, etc) but as rightly pointed out on behalf of respondent No. 3, what was sought by the petitioner by his application dated 27/03/1985 was not granted to the petitioner by letter of the Sarpanch dated 1/04/1985 and the petitioner was only allowed by the Sarpanch of the Village Panchayat of Velsao-Pale to repair the existing structure (gaddo i.e. stall) at Velsao. The said letter dated 1/04/1985 could not have been considered or construed as a permission for the construction carried out by the petitioner in the existing manner i.e. with 6 pillars and a roof resting on the wall of respondent No. 3.
The sketch at page 118 of the paper book shows the stall within the proposed structure with 6 pillars with roof resting on the wall of respondent No. 3 for which the petitioner did not have a license from the Village Panchayat at any time. It is not only the Village Panchayat which has come to the conclusion that the subject structure was carried out by the petitioner without the permission of the Village Panchayat but the petitioner has also now received notice for its demolition from the MPDA.
Both the Authorities have come to the conclusion that the petitioner''s structure was without license issued by the Village Panchayat as required under the laws in force. It is nobody''s case that the subject structure was carried out prior to the Village Panchayat Regulation of 1962 was enforced in this State. When permission was granted on 1/4/1985 it was for the repair of the stall which was burnt but not for erection of another structure with six stone pillars. It was not the case of the petitioner that there were six pillars which were burnt! The Village Panchayat which then existed was for two villages namely Veslao and Pale and then it was reconstituted for three villages by adding Issoricim. The Village Panchayat always continued to exercise jurisdiction over village Velsao. Therefore, either the Village Panchayat of Velsao-Pale or reconstituted Village Panchayat of Velsao-Pale-Issoricim could have taken action against the illegal construction of the petitioner. In fact, the petitioner has not given any date when the Village Panchayat with three villages was reconstituted.
Therefore, I find there is no merit in this Writ Petition and, consequently, the same is hereby dismissed, with costs quantified at Rs. 2500/- to be paid to respondent No. 3.
At the request of the learned Counsel, the operation of this judgment is stayed for a period of six weeks to enable the petitioner to prefer a Special Leave Petition.