https://gsic.goa.gov.in/decision/2018/Appeal%20No.95-SIC-2014.

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https://gsic.goa.gov.in/olddata/1592-Appl%20244-SCIC-2010.pdf

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 JUDGES

Mr. Justice S.C. Dharmadhikari

ADVOCATES

ACTS

Section 201-A of the Goa Panchayat Raj Act,

Section 201-A, sub-section (1)
provision of sub-section (2),

CiteTEXT
CITES1
CITED BY0
ANGELA D' SA V. THE DEPUTY DIRECTOR OF
PANCHAYATS, MARGAO, SALCETE, GOA OTHERS
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Bombay High Court (2 Sep, 2008)

 Angela D' Sa v. The Deputy Director Of Panchayats, Margao, Salcete, Goa Others
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Cases referred :

M/s. Keshavji Raoji & Co. Vs. I. T. Commissioner, AIR 1991 SC 1806 [ 8 ]

:- Rule. Mr. Shirodkar waives service for respondent nos.1 and 2. The presence of

respondent no.3 Panchayat is not necessary for this petition. Hence, service on

respondent no.3 is dispensed with. Rule made returnable forthwith by consent.

2. The petitioner appeared before the B.D.O. complaining that the subject Panchayat

i.e. the Village Panchayat of Maina Curtorim, Salcete, Goa is not acting upon his

complaint made with regard to a structure which was earmarked for residence, but

subsequently put to use as a temple. The petitioner complained that such use causes

nuisance as more particularly elaborated in his complaint.

3. His grievance is that the Village Panchayat did not take any action. Aggrieved by

such inaction, he preferred an appeal, being Appeal No.BDO/09/2006 which was

placed before B.D.O. Salcete, Margao, Goa. By an order passed by him on 22.6.2006,

he held that the appeal is incompetent and he has no jurisdiction in the matter.

4. Aggrieved by this order, the petitioner invoked the Dy. Director of Panchayats

jurisdiction under Section 201-A of the Goa Panchayat Raj Act, 1994 by filing a

revision application/Panchayat Appeal. The Dy. Director of Panchayats, after hearing

the parties having upheld the Order of the B.D.O., he present petition.
5. In my view, both the B.D.O and the Dy. Director of Panchayats erred in law in

holding that the proceedings before them were incompetent. They have failed to notice

the relevant statutory provision or having noticed the same, failed to consider it in its

proper perspective.

6. Section 201-A of the Goa Panchayat Raj Act, reads as under :

"201-A Appeal on miscellaneous matter dealt by the Panchayats.- (1) Where no

appeal has been specifically provided in this Act on any miscellaneous matters which

is dealt with by the Panchayat or the Village Panchayat Secretary or the Sarpanch, an

appeal shall lie to the Block Development Officer within a period of thirty days from the

date of refusal of any request by the said authority and his decision on such appeal,

subject to the provision of sub-section (2), shall be final.

Explanation. - For the purpose of this section, "refusal" means rejecting of any request

in writing or non conveying of any reply to the application within a period of fifteen days

from the receipt of application in his office.

(2) A revision shall lie to the Deputy Collector against any order passed by the Block

Development Officer under sub-section (1) within a period of thirty days from the date

of the order."

7. A bare perusal of Section 201-A would reveal that where no appeal has been

specifically provided on any miscellaneous matters which is dealt with by the

Panchayat or by the Village Panchayat Secretary or its Sarpanch, then an appeal shall

lie to the B.D.O. within a period of 30 days from the date of refusal of any request by

the said authority. The explanation below sub-section (1) is crucial and important for

the present petition. The word "refusal" means rejecting of any request in writing or

non-conveying of any reply to the application within a period of fifteen days from the

date of its receipt. There is a specific grievance that on 4.12.03, the petitioner
approached respondent No.3 Panchayat alleging that the construction has been put

to use for a purpose other than which it is meant for or rather was being misused. The

construction licence is obtained for construction of a guest residence, but now the

same is put to use as a temple. The Panchayat took cognizance of this letter and

directed the representative of the said temple Society/Association to remain present

at the site with relevant documents. However, for one reason or the other, the matter

was not pursued and the petitioner once again approached the Panchayat. The

Panchayat issued notice dated 24.10.05 directing the Temple Authorities to stop

religious ceremonies. Later on to the shock and surprise of the petitioner, a letter was

addressed by respondent No.3 to the petitioner stating that the Temple Authority has

furnished an undertaking regarding user and, therefore, nothing be done in the matter

further.

8. The petitioners representations dated 1.12.2005 and 20.12.2005 met with no

response and that is how he approached the B.D.O. In the peculiar facts of this case

in my view, the complaint would fit in the Explanation below Section 201-A, sub-

section (1) and, therefore, the B.D.O. was in error in holding that the appeal was

incompetent or that he lacks jurisdiction to decide the matter. It was his plain duty in

law to consider the appeal on merits and pass appropriate orders. This is what the Dy.

Director of Panchayats should have directed in his Revisional Jurisdiction. He also

failed to exercise his power vested in law. Both failed to notice that the Section and its

explanation is worded widely to cover a situation of failure to or non-conveying of a

reply and inaction. The purpose of inserting the explanation below sub-section 1 (one)

is precisely to include such aspects. Such explanations are inserted to clarify the

position and by way of abundant caution. That such can be the intention of the

legislature in providing for an explanation below a Section is clear from the following

observations of the Supreme Court. In M/s. Keshavji Raoji & Co. Vs. I. T.
Commissioner, reported in AIR 1991 S.C. 1806 at (para 14), page 1818, this is what

is held :

"Re : Contention (e)

Sri Ramachandran urged that the introduction, in the year 1984, of Explanation I to

S.40(b) was not to effect or bring about any change in the law, but was intended to be

a mere legislative exposition of what the law has always been. An Explanation,

generally speaking, is intended to explain the meaning of certain phrases and

expressions contained in a statutory provision. There is no general theory as to the

effect and intendment of an Explanation except that the purposes and intendment of

the Explanation are determined by its own words. An Explanation, depending on its

language, might supply or take away something from the contents of a provision. It is

also true that an Explanation may - this is what Sri Ramachandran suggests in this

case - be introduced by way of abundant caution in order to clear any mental cobwebs

surrounding the meaning of a statutory provision spun by interpretative errors and to

place what the legislature considers to be the true meaning beyond controversy or

doubt. Hypothetically, such can be the possible purpose of an Explanation cannot be

doubted. But the question is whether in the present case, Explanation I inserted into

S. 40(b) in the year 1984 has had that effect."

9. For the reasons aforesaid, this is a fit case for exercising writ jurisdiction and

quashing and setting aside the orders of the B.D.O. and the Dy. Director of

Panchayats.

10. Accordingly, the petition is allowed. The Orders dated 22.6.2006 and 24.8.07 of

the respondents No.1 and 2 respectively are quashed and set aside. Rule is made

absolute in terms of prayer clause (a) to the extent that the appeal preferred by the

petitioner will now be heard on merits and in accordance with law. However, it is

clarified that no opinion is expressed on merits and the controversy should be dealt
 with by the Authorities independent of this Courts observations and the same shall be

restricted as having been made with regard to their jurisdiction and powers.

Petition allowed.
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