Judgment:
C.L. Pangarkar, J.
1. This Writ Petition is filed by the original opponent No. 1 before Dy. Director of Panchayats of North Goa, being aggrieved by the decision rendered by the Director of Panchayats in Panchayat Appeal No. 101/2000.
2. The facts giving rise to the appeal are as follows:
One Mrs. Helena Menezes is a holder of Power of Attorney of one Mr. Jose Rozetinha Ismail Henriques dos Remedios. Jose Rozetinha Ismail Henriques dos Remedios is the owner of the property surveyed under No. 178/12 of village Calangute. There is a house bearing No. E/5/91 standing in the same property. One Gabriel Fernandes i.e the present Petitioner and his wife and his cousin Joao Fernandes are occupying the said house. The petitioner has filed an application before the Mamlatdar claiming himself to be a mundkar of the said property. The said application is pending before the Mamlatdar. It is the contention of the owner of the suit property that during the pendency of the said proceedings before the Mamlatdar the present Petitioner Gabriel has made illegal construction. The owner i.e. the Respondent No. 4 herein made several complaints to the Panchayat in respect of the said illegal construction. In spite of the four complaints having been made, the Panchayat has not taken any action in the matter. The owner i.e. the Respondent No. 4 therefore made the complaint to the Director of Panchayats. The Dy. Director of Panchayats took the cognizance of this complaint and issued notice to the present Petitioner to show cause as to why the illegal construction should not be demolished. The Petitioner filed reply to the said show cause notice.
3. Upon hearing the Petitioner and after obtaining the report of the Commissioner, the Dy. Director found that the Petitioner has made an illegal construction. He therefore directed the Petitioner to demolish the constructions 'E' and 'F' as shown in the plan prepared by the Commissioner. Dy. Director also directed the Panchayat to see that the said construction is demolished.
4. Being aggrieved by this order, the present Petitioner preferred an appeal before the Director of Panchayats, who dismissed the appeal and confirmed the finding of the Dy. Director. Being aggrieved by that order, this Writ Petition has been filed.
5. I have heard the learned Counsel for the Petitioner and the Respondents. The undisputed fact is that the petitioner has applied to the Mamlatdar to declare him as a mundkar and the said application is still pending. It is therefore obvious that the status of the Petitioner as a mundkar is not still confirmed. It cannot be disputed that until the said status is decided and his right to purchase is recognized and his land is demarcated, he has no right to make any additional construction and change the nature of the property. The complainant i.e. the Respondent No. 4 had made the complaint that the Petitioner has carried out additional construction and Panchayat had not taken any cognizance of the complaints. It appears from the order of the Dy. Director that along with an application before the Mamlatdar in respect of the mundkarial house the Petitioner had attached a survey plan which plan shows the existence of only one house which has a house number bearing No. E/5/91. Obviously, when the application to declare mundkar under the Mundkar Act was made there was only one structure standing on the plot. It is in this background that the rest of the contentions of the Petitioner have to be appreciated.
6. The foremost contention that was raised by the learned Counsel for the Petitioner is that the Dy. Director had acted illegally in appointing the Commissioner to inspect the property. He submits that this order is without jurisdiction and therefore illegal. He invited my attention to Section 239 (A) of the Goa Panchayat Raj Act, which reads as follows:
Powers of officers. - The Officers appointed under this Act, viz, the Director, the Chief Executive Officer, the Deputy Director and the Block Development Officer, shall have the same powers in making inquiries under this Act and the rules framed thereunder as are vested in courts in respect of the following matter under the Code of Civil Procedure, 1908, in trying any petition or appeal, namely:
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any person and examining him on oath;
(c) compelling the production of documents;
(d) awarding costs.
7. There is no doubt that the power to appoint Commissioner is not specifically conferred on the Panchayat Officer by the Act, but the fact that the some provisions of the Civil Procedure Code are made applicable suggests that the proceedings before the Authority are quasi-judicial in nature. Even, Section 239 (C) of the Panchayat Raj Act says that the proceedings before the Authority shall be judicial proceeding. It is therefore obvious that the inquiry that is conducted is in fact a judicial inquiry. There is therefore nothing wrong in the appointment of the Commissioner, to have a factual position before him. Such appointment cannot be said to have caused any prejudice to the Petitioner. Further, the Government Surveyor was appointed as a Commissioner who could be said to be acting independently. To my mind, if the proceedings before the Authority are judicial proceedings, inherent powers available under Section 151 of the C.P.C. could be said to be available to said Authority in order to do the justice between the parties. The Authority could make an appointment of Commissioner and have the factual position before it. Such an order could not be said to be perverse particularly when the Petitioner was contending that all structures were old and complainant was disputing that fact. The complaint was made with a view to demolish the structure which was illegal. Before making order, it was therefore necessary for the Authority to have before him the proper facts. Hence, I do not find anything wrong in appointment of the Commissioner. It was contended that the person who was appointed was not an Architect or an Expert and hence his findings were in fact redundant and of no use. The Commissioner has not decided whether the constructions are old or new upon examination of the structure, but has decided the same on the basis of the survey maps. He observed that in the old map only one construction 'A' was found while the other constructions are newly surveyed constructions. Thus, it is only on the basis of survey maps that he has observed as to when the construction came into existence. He was therefore the best person who could give the correct picture.
8. The burden of proof according to Mr. Arun Bras de Sa, learned Counsel for the Petitioner was on the complainant and complainant had not discharged that burden that the structure was illegal. To my mind, the burden of proof must lie on person making the construction to prove that it is legal and as per sanction accorded by the Authority. A negative burden cannot be put on the complainant. The person making construction alone has to prove that he has obtained the permission from the Authority concerned and that the construction is made according to the sanctioned plan. One cannot be called upon to prove a negative thing such as the construction is not legal. All the evidence with regard to construction being legal has to be in possession of the person making the construction. The Petitioner has not produced any evidence to prove that the construction besides 'A' was carried out after obtaining the permission of the concerned Authorities.
9. Mr. Arun Bras de Sa, learned Counsel for the Petitioner contended that the exercise of power by the Dy. Director in the instant case was not in accordance with the scheme of the Act. He also submits that the complaint could have been forwarded by the Dy. Director to the Panchayats and he himself could not have taken the cognizance. This submission does not appear to be correct. If Section 66 of the Panchayat Raj Act is read as a whole, the contention cannot be accepted. Sub-section (3) of Section 66 says that if any building is constructed without permission and contrary to the rules, the Panchayat may direct its demolition. Thus, if it is brought to the notice of the Panchayat that any construction is made without permission or in contravention of rules, it has to act under Sub-section (3) of Section 66 and direct the demolition. The consequence of failure of Panchayat to take action under Sub-section (3) is given in Section (5). Sub-section (5) of Section 66 reads as follows:
Where the Panchayat fails to demolish the building which is erected, added to or reconstructed without the permission of the Panchayat, or in any manner contrary to the rules made under the Act or any conditions imposed in the permission, within a month from the date of the knowledge, the Deputy Director shall assume the powers of the Panchayat under Sub-sections (3), (4) and (5) and take such steps as may be necessary for the demolition of such building.
10. Thus, as soon as there is a failure on the part of Panchayat to take action, the Dy. Director has to assume the powers of Panchayat and take action as is required to be taken under Sub-section (3). In the instant case, the complainant/respondent had made many complaints to the Panchayat and Panchayat had failed to take any action. Assumption of power by the Dy. Director in such circumstances was quite justified.
11. The Dy. Director has rightly acted under Section 66 (5) of the Act. This is not a case of exercise of jurisdiction not vested in the Dy. Director. He has rightly taken into consideration the report of the Commissioner particularly when the Petitioner has failed to produce any document showing permission to make such construction. In view of this, I do not find that the orders passed by the Authorities below suffer from any illegality or infirmity. There is, therefore, no reason to interfere with the orders passed by the Authorities below.
12. The petition is therefore dismissed. No order as to costs.