(Per Valmiki Menezes, J.)

1. Heard the learned Counsel for the parties.

2. Rule. With the consent of the learned Counsel for the parties, the petition is disposed of finally.

3. By this petition, the petitioner seeks a writ of certiorari to quash an order dated 25.07.2023 passed by the Additional Director of Panchayats (DOP), Panaji, Goa in Case No.ADP-II/P.A.104/2014, exercising powers under Section 66 (7) of the Goa Panchayat Raj Act (The Panchayat Act); by the impugned order the DOP has allowed an appeal filed by Respondent No.3, against an order of demolition of a house structure, and granted him liberty to apply for necessary permissions on the Competent Authority for regularisation of the illegal construction. A further relief has been sought in this petition for a mandamus to be issued to the Panchayat to demolish the illegal structures under the two demolition orders issued against Respondent No.3, with a further relief to direct the Senior Town Planner to take action against the Respondent No.3 in terms of Section 17A of the Town & Country Planning Act for ensuring the mud/filling done by Respondent No.3 in the low lying agricultural field be removed, and the field restored to its original condition.

4. The facts necessary for the disposal of this petition are stated in the petition as under:-

"A) On a complaint dated 11.04.2014 made by the petitioner to the Village Panchayat of Arpora Nagoa, Respondent No.2 herein (Panchayat), which alleged that the Respondent No.3 had constructed illegal shops in land under Survey No.28/16, at Mendes Waddo, Nagoa, the Panchayat, by demolition order dated 24.06.2014 directed demolition of the said shops; the demolition order, hereafter referred to as “the first demolition order”, passed in exercise of the provisions of Section 66 (4) of the Act, was based upon the fact that the illegal shops were constructed in an agricultural land (paddy field) after filling up the same, and without any revenue conservation being granted by the Collector in terms of the provisions of the Goa Land Revenue Code. The first demolition order was also based on the fact that the Respondent No.3 had obtained no permissions/approvals under the Planning Regulations from the concerned Planning Authority/Town Planner or construction permission from the Panchayat itself under Section 66(1) of the Act.

B) On a second complaint dated 15.05.2014 of the petitioner, alleging that the Respondent No.3 had also constructed an illegal house structure in the very same land under Survey No.28/16, a demolition order dated 30.07.2014, hereafter referred to as “the second demolition order” was issued on the very same grounds as the first demolition order.

C) Despite the first demolition order becoming final, the Panchayat chose not to execute the demolition order. In the meanwhile, the Respondent No.3, by an application dated 21.03.2016 to the Panchayat requested the Panchayat to regularise the shop structures, which he claimed were shifted back from the road-widening line, and which a Resolution bearing No.7/1(A) dated 30.04.2016 was passed by the Panchayat to regularise the illegal shop structure on the Respondent No.3 donating part of his land for road widening to the Panchayat. This resolution was however, by later resolution bearing No.9(23) dated 14.12.2016 withdrawn by the Panchayat, obviously since the earlier resolution was illegal and beyond the Panchayat’s jurisdiction. The second resolution revoking regularisation was challenged before the DOP in an Appeal No.ADP-II/P.P.5/2017 by the Respondent No.3, which was ultimately dismissed by an order dated 14.08.2020 upholding the second resolution and noting that the two orders of demolition had not been executed.

D) The petitioner then instituted Proceeding No.27/2016 before the Goa Lokayukta invoking its powers under Section 11 of that Act requesting filing of an FIR against the Secretary and the Sarpanch of the Panchayat for acts of corruption in having the first resolution of regularisation passed and for their inaction in demolishing the two illegal constructions; the Hon’ble Lokayukta, in its order dated 02.03.2020 took cognizance of the petitioner’s complaint and after noting at paragraph 25 of its order that inspite of pendency of an appeal against the demolition orders, the Panchayat Secretary and its then Sarpanch gave no objection to the Respondent No.3 for supply of electricity and water connection to the illegal constructions, directed registration of an FIR against the Panchayat Secretary and acting Sarpanch under Section 13(1) (d) of the Prevention of Corruption Act.

E) The DOP, by its judgment dated 25.07.2023, dismissed the appeal bearing No.ADP/II/PA.89/2014 of Respondent No.3 filed against the first order of demolition of the illegal shops and upheld this demolition order as being valid and proper. However till date the first demolition order has not been executed by the Panchayat for reasons best known to it.

F) Against the second demolition order (house) the Appeal of Respondent No.3 bearing No.ADP-II/P.A.104/2014 was allowed and the second demolition order was quashed and set aside giving the Respondent No.3 liberty to apply for permission from the Competent Authority and the Panchayat to regularise the illegal structure. This is the order/judgment impugned in this petition."

5. In reply to the petition, the Respondent No.3 filed an affidavit dated 16.01.2024 raising a plea that the Petitioner has an alternate remedy under Section 201B of the Panchayat Raj Act; Apart from this plea, the Respondent No.3 has not placed before us any licence or approvals granted either by the Panchayat in terms of Section 66 of the Act or by the Town Planning Department/Planning Authorities under the concerned planning regulations to substantiate the legality of the two constructions in question i.e. the house structure and the shops, which have been ordered to be demolished under the first and second demolition orders. The affidavit is totally silent on whether any steps were taken by this Respondent to challenge the order dated 25.07.2023 of the DOP dismissing his appeal and upholding Resolution No.9(23) dated 14.12.2016 revoking regularization of the shop structures. Thus, the Respondent No.3 himself accepts that the first demolition order dated 24.06.2014 with respect to the shops in land under Survey No.28/6 of village Arpora Nagoa are illegal.

6. Considering the fact that the first demolition order dated 24.06.2014 with respect to the shops in land under Survey No.28/6 of Village Arpora Nagoa has attained finality and the same has not been executed till date by the Respondent No.2 Panchayat, it would be appropriate, considering the provisions of Section 66 of the Act to direct the Respondent No.2 Panchayat to carry out the demolition of the shop structures within an appropriate time frame.

7. Insofar as the impugned order dated 25.07.2023 setting aside the second demolition order dated 30.07.2014 is concerned, we have examined the same and make the following observations on the findings arrived at by the DOP therein:-

"A) The DOP has observed that perusal of the survey record of the property in Form I & XIV shows the total area as cultivable and no structure is shown existing on the survey plan nor does the description of the property in the Inventory Proceeding by which the same is claimed to have been allotted to the Respondent No.3 show any existing structures thereon.

B) The DOP has also noted that the Appellant therein/Respondent No.3 before us has not produced any permission/licence/approved plan of the Town and Country Planning Department to substantiate the construction. Even though there was a claim that an old mud structure existed in the property, it is clear from the regularization request made by the Respondent No.3 way back in the year 2016 itself proceeds on the assumption that the structures in the survey holding were all illegal and constructed without permission."

8. From the findings rendered by the DOP in the impugned order, the appeal ought to have been dismissed and the demolition order ought to have been executed. Instead, the DOP chose to then record that the Respondent No.3 ought to be given the liberty to apply for regularization of the illegal house structure with the Competent Authorities, and on that count alone, has allowed the appeal and set aside the second demolition order dated 30.07.2014.

9. In Miguel Francisco Gonsalves vs. State of Goa Writ Petition No.2181/2022 (F), this Court, in its Judgment dated 01.12.2022, referring to various judgments of the Hon’ble Supreme Court has specifically held that such regularizations of structures which are constructed in complete violation of the building regulations, without any licensees should be discouraged and are unauthorized. This Court further held that such unauthorized regulations discriminate against law abiding citizens who refuse to pay bribes and follow the due process of securing permissions from the prescribed authorities before undertaking constructions. Taking a serious view of the illegal constructions continuing to mushroom and thereafter plea is taken for regularization of such structures on grounds of compassion and hardship, are a menace and such a course of action to regularize such structures should not be countenanced.

In Miguel Gonsalves (supra), this Court, considering the scheme of the Panchayat Raj Act, and more particularly of Section 66 thereof, which regulates constructions in Panchayat areas has observed as under:-

“45. Based upon the above precedents and applying the Law laid down to the present case's gross facts, the plea for regularization cannot be entertained. The Director of Panchayats must bring to the notice of the Panchayats and Planning authorities the Hon'ble Supreme Court precedents on the subject of regularizations. Further, the Panchayats and other Authorities must recover demolition costs from the law-breakers. There is no justification to spend tax -payers money to fund demolition squads. Rampant illegal constructions threaten the environment, and there is no reason why the polluter pays principle should not be applied in such matters.”

10. In Sudesh Kurade vs. State of Goa Writ Petition No.254/2023, this Court in its Judgment dated 27.09.2023 in WP 254/2023, considering a petition on similar facts as to the present one, this Court has observed thus:-

“39. We repeatedly enquired from the learned Counsel, Ms Prema Matkar, appearing for respondent No.6, to produce any permission obtained from respondent No.2 either to repair the old structure or to carry out any construction. However, no such permissions were produced. She candidly accepted that respondent No.6 did not obtain any permission before constructing the said house. She only claimed that the appeal filed against the demolition order be directed to be expedited. We have already noticed the plea taken in the appeal memo, which is contrary to the present stand and that it is only an attempt on the part of respondent No.6 to delay the demolition process so that he could continue to occupy the premises which he constructed without obtaining any permission and more so without any respect for the Laws. If such a person is permitted to challenge the demolition notice without showing any material remotely to consider his case for the grounds raised in the memo of appeal and even before this Court, it would be a travesty of justice as such a person would drag the matter for years together and occupy the premises in the meantime.

45. In the present matter, since no document is placed on record by respondent No.6 or even by respondent No.2 to show any permission granted for carrying out such construction, it is clear that the said construction is totally illegal, brazen and without following the due process of law. Therefore, even an appeal filed against the demolition order passed by the Panchayat is again an abuse of process of law as respondent No.6 failed to produce any permission or licence before this Court and even before the Additional Director of Panchayat. The only intention of respondent No.6 is to delay the demolition by filing an appeal and other proceedings. A person who has scant respect for the procedure and law and who carried out the brazen illegal construction cannot be protected by seeking or filing an application for regularisation. We hereby quash and set aside the ex -parte stay granted by the Additional Director of Panchayat. In any case, this ex parte stay cannot protect a construction carried out in an open space.”

11. Considering the above legal position, and on examining the scheme of Section 66 of the Panchayat Raj Act, the Panchayat is certainly not vested with the powers to regularize an illegal construction, and more so where the construction is made without any licence whatsoever. Further, as in the present case, where a demolition order has been issued and there is no licence whatsoever even under the planning regulations for the house structure constructed by the Respondent No.3, such a structure could certainly not be regularized by the Panchayat, and much less by an order of the DOP, acting in appellate jurisdiction under Section 66(7) of the Act. The concerned property is admittedly a low line paddy field to which no conversion sanad has been accorded under the provisions of the Goa Land Revenue Code for change of use from Agricultural to Non-Agricultural purpose We have time and again stated in various judgments, that the DOP is not vested with any jurisdiction under the scheme of Section 66 of the Act to direct regularization of a structure which is without any licence or approval under the planning regulations, much less direct any authority to consider an application for regularization of such a wholly illegal structure.

We therefore hold that the impugned order dated 25.07.2023 passed by the DOP in Appeal Case No.ADP-II/P.A.104/2014 directing regularization of the house structure of the Respondent No.3 is wholly without jurisdiction and has consequently to be quashed and set aside. Since all the other findings of the DOP, in the impugned order suggest that the structure was without any licences, and the affidavit of Respondent No.3 also does not dispute this position, the appeal ought to have been dismissed and the demolition order dated 30.07.2014 be upheld. We accordingly do so, and hold that the order dated 30.07.2014 of the Panchayat is legal and has now to be executed. The plea of the existence of any alternate remedy by way of a revision before the District Court, under the Act has to be rejected, as such a remedy would not denude this Court of its powers under Article 226 of the Constitution of India to interfere with an order, such as the one passed by the DOP, which is wholly without jurisdiction and in complete violation of the provisions of Section 66 of the Panchayat Raj Act.

12. Insofar as the direction sought in prayer clause III of the petition is concerned, it appears that an FIR was lodged on 05.07.2014 under Section 17A of the Goa Town and Country Planning Act, 1974 by the Anjuna Police Station in the matter of illegal filling up of the paddy field. We would expect the police authorities to have completed the investigation on the complaint and brought the same to its logical conclusion in terms of the Code of Criminal Procedure, 1973. We accordingly direct the P.I., Anjuna Police Station to complete the investigation on this FIR, if not completed and to take a decision on whether to file a final report or otherwise in the matter.

We note that the Senior Town Planner, Mapusa has filed the FIR in terms of Section 17A of the Goa Town and Country Planning Act before the Police authorities but has not taken any further action in terms of Section 17A of the Act to ensure the prosecution of the Respondent No. 3 for the offence of filling up any low line land such as the paddy field under Survey No. 28/6 of village Nagoa, Arpora, without obtaining prior permission from the Chief Town Planner. We accordingly direct the Senior Town Planner, Mapusa to take up appropriate proceedings and pursue the complaint filed by it for prosecution of the Respondent No. 3 under Section 17A of the Goa Town and Country Planning Act and for imposition of appropriate penalty on the Respondent No.3.

13. Consequently, and for the reasons stated hereinabove, we issue the following directions:-

"A) The impugned order dated 25.07.2023 of the Additional Director of Panchayats passed in Case No.ADP-II/P.A.104/2014 is quashed and set aside and the second demolition order dated 30.07.2014 passed by the Panchayat is upheld.

B) The Respondent No.2 Panchayat, through its Secretary shall carry out demolition of the shops pursuant to its first demolition order dated 24.06.2014 and of the house structure pursuant to its second demolition order dated 30.07.2014 within a period of one month from today and recover the cost of the demolition from the Respondent No.3. We direct the Block Development Officer, Bardez and the Secretary of the Panchayat of the Village Panchayat of Arpora Nagoa to file compliance reports of this order by 31.05.2024.

C) The Respondent No.3 is hereby directed to deposit in this Court an amount of Rs.50,000/- within two weeks from today as tentative charges for carrying out the demolition. After the demolition of the structures is complete, the Respondent No.2 Panchayat may raise further demands upon the Respondent No.3 to recover the actual cost of demolition, in the event the sum directed to be deposited by this order is not sufficient to defray such cost.

D) The Senior Town Planner, Mapusa is directed to take up appropriate proceedings and pursue the complaint filed by it for prosecution of the Respondent No. 3 under Section 17A of the Goa Town and Country Planning Act and for imposition of appropriate penalty on the Respondent No.3.

E) The Police Inspector of Anjuna Police Station is directed to complete the investigation in FIR No. 72/2014, if not already completed and to take a decision on whether to file a final report or otherwise in the matter."

14. Rule is made absolute in the above terms. No order as to costs.