M.L. Pendse, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioners are seeking a writ of mandamus directing the respondents to grant permission for development as sought by the application dated April 11, 1984. The permission was sought in accordance with Regulation 83 of Village Panchayats Regulations, which inter alia, provides that no person shall erect or commence to erect within limits of village, any building without the previous permission of the Panchayat. Respondent No. 1 is a Gram Panchayat of Verem-Betim-Reis Magos, while respondent No. 2 was working as the Sarpanch at the time of filing of the petition. We are informed at the bar that respondent No. 2 has ceased to be the Sarpanch after fresh elections to the Panchayat were held. This subsequent development makes no difference to the relief sought as the petitioners are not seeking any relief personally against respondent No. 2.
2. Petitioner Nos. 1 to 7 are owners of the property known as D. JIL' or 'Revenchem Batta' situated in the village Reis Magos falling within the jurisdiction of respondent No. 1. Petitioner No. 8 is a Company incorporated as a Private Limited Company and petitioner No. 9 is the Managing Director. The Company is engaged in a business of development of lands and by an agreement dated January 23, 1984, subsequently modified on January 5, 1985, the company agreed to purchase the property of petitioners 1 to 7 for a consideration of about Rs. 56 lakhs. The agreement provided that the sale was to be completed from the Ecological Development Council as well as the grant of permission for conversion of the land to non-agricultural use. The petitioners 1 to 7 also executed a Power of Attorney in favour of petitioner No. 9.
On January 31, 1984 the petitioners applied before the Deputy Collector for permission to convert the user of the land to non-agricultural purposes. The petitioners submitted an application before the Planning Development Authority, Panaji on February 16, 1984 seeking permission to develop the land. The Deputy Collector sought certain clarifications regarding the proposed construction, and on March 1, 1984 the Development Authority rejected the application. On March 5, 1984, the petitioners filed fresh application complying with the requirements of the Planning Authority and in pursuance of that application permission was granted on March 13, 1984. In the meanwhile, as the Deputy Collector failed to take any steps on the application for conversion of the user of the land, the provisions of sub-section (3) of section 32 of the Land Revenue Code were attracted and the petitioner presumed deemed permission under that provision. Having complied wit the necessary requirements to secure permission, the petitioners submitted the application on April 11, 1984 to respondent No. 1 pointing out that sanction was given by the Development Authority and the user of the land should be deemed to have been converted in accordance with sub-section (3) of section 32 of the Land Revenue Code. The petitioners requested respondent No. 1 to sanction permission under Regulation 83. Now what transpired after this date is an interesting story and the action of respondent No. 1 in delaying the sanction in favour of the petitioners has given rise to filling of this petition.
3. On May, 14, 1984, the Gram Panchayat returned the application to the petitioners, inter alia, stating that the petitioners have not secured permission for conversion of user of the land and have also failed to secure clearance from the Ecological Development Council. The petitioners thereupon submitted application to the Ecological Development Council on June 1, 1984 and the application came to be granted on December 20, 1985. The petitioners thereafter resubmitted the application to the Gram Panchayat for necessary permission under Regulation 83. On January 17, 1986 the Gram Panchayat returned the application raising several objections, like power of attorney was not proper, the application for permission of conversion to non-agricultural user was made in the name of power of attorney holder, the clearance from the Ecological Development Council was in the name of the power of attorney holder and not in the name of the owners of the property ad certain people have raised claims in respect of the property which is proposed to be developed. The petitioners clarified the petition in respect of the objections raised and complained that the Gram Panchayat is deliberately trying to postpone grant of permission on one pretext or the other. The petitioners were informed on the same day that the petitioners should submit detailed estimate of the works to be carried out and also furnish the copy of the deed of Gift. The petitioners complied with that requirement also on January 13, 1986 and now the Sarpanch comes into play.
4. On January 31, 1986 the Sarpanch writes on behalf of the Panchayat to the petitioners raising almost identical objections which were earlier raised and which were replied to by the petitioners. The petitioner against resubmitted the application pointing out that the Goa, Daman and Diu Village Panchayats Regulation of building rules stands amended with effect from November 28, 1985 and in accordance with amendment the Gram Panchayat cannot refuse permission once the Development Authority has sanctioned the project. The claim made by the petitioner did not impress the Panchayat and the file was returned back by raising identical objections on February 21, 1986. At this juncture one more objection was raised, that the written permission from the Revenue Authorities granting permission for change of user of the land should be produced. The petitioners, to comply with this requirement, applied to the Deputy Collector for written permission, and after securing it, again requested the Gram Panchayat to sanction permission for development of the property. The Gram Panchayat informed the petitioners on July 1, 1986 that certain objections were not yet complied with and therefore the application should be resubmitted. The petitioners at this juncture got exhausted and realised that deliberate efforts are made by the respondents to keep the matter pending and the respondents are not at all inclined to either grant permission or refuse it. The petitioners thereafter filed the present petition seeking relief stated hereinabove.
5. The respondents were duly served, but respondent No. 1 has not cared to filed any return in answer to the claim made by the petitioners. Shri Kakodkar, learned Counsel appearing on behalf of the respondents, stated at the outset that respondent No. 2 R.D. Mayenkar, who was holding the post of Sarpanch is no more holding that post and a new Sarpanch is elected. Shri Kakodkar submitted that it is necessary to the petitioners to bring on record the newly elected Sarpanch. We are not impressed by the submission of Shri Kakodkar, because no relief is sought against the Sarpanch in his individual capacity and the permission is to be granted to the petitioners by Gram Panchayat, which is separate legal entity Shri Kakodkar then applied for adjournment of hearing and tendered a written application. The application set out that as a result of the fresh elections of the Panchayat held on December 14, 1986, the Panchayat has a new composition of members and as the new members have assumed office, the Panchayat would like to consider the case of the petitioners and therefore the hearing should be adjourned at least for two weeks. In our judgment, the application is nothing but an abouse of process of the Court. The Gram Panchayat never felt that any return should be filed even though the notice was served on the Gram Panchayat before admission of the petition. The fact that fresh elections are held is no ground to ask for adjournment. The petitioners are waiting for the permission for last over three years and the Gram Panchayat cannot casually apply for adjournment on the ground that the new body has been elected. In these circumstances, we declined to adjourn the hearing.
6. Shri Dias, learned Counsel appearing on behalf of the petitioners, submitted that the conduct of the respondents clearly indicates that there is no desire either to grant permission or to refuse it, but the Gram Panchayat is observed with an idea that the application for permission should be kept in abeyance for all times to come. Shri Dias submits that the petitioners have spent a large amount over the proposed development and it is futile for the Panchayat to refuse to consider the application for permission under Regulation 83 on unsustainable grounds. We find considerable merit in the submission of the learned Counsel. Regulation 83 demands that erection of building should not be carried out without the previous permission of the Panchayat. Sub-rule (2) of Regulation 83 recites that permission shall be resumed to have been granted if the Panchayat fails to communicate its sanction or refusal within two months from the date of receipt of application for permission. This statutory provision clearly indicates that expediency is expected in disposal of the applications and the citizen should not be kept waiting for an indefinite period by the Panchayat. Realising that refusal of the application would entitle the petitioners to approach the higher authority in appeal, the Gram Panchayat has found out a way to keep the application pending for over 2 1/2 years. In exercise of the powers conferred by section 65 read with section 83 of the Regulations, the Lt. Governor of Goa, Daman and Diu has made Rules known as Goa, Daman and Diu Village Panchayats (Regulation of Buildings) Rules, 1971. Rule 3 sets out the procedure for submission and scrutiny of application for development of land, and sub-rule (2) of Rule 3 prescribes that on receipt of application the Panchayat shall make inquiry as may be necessary and grant permission. The subjects of inquiry are also set out in the sub-rule. As mentioned hereinabove, the application for permission was made by the petitioners on April 11, 1984. The Gram Panchayat has raised couple of objections, which in our judgment are totally irrelevant. The principal objection raised was that the power of attorney was executed by the Petitioners 1 to 7 in favour of petitioner No. 9 but such power of attorney would not enable the power of attorney holder to seek permission in his own name. The Panchayat overlooks that the agreement entered into between the petitioners 1 to 7 on one hand and petitioner No. 9 on the other was for development of the property and the interests of petitioner Nos. 8 and 9 are only in developing the property, and the title of the property of petitioners 1 to 7 is not affected till it is transferred by a regular deed. We fail to appreciate what objection the Panchayat can have if some of the permissions secured by the petitioners are in favour of petitioner No. 9. It is not in dispute that the permission granted by the Deputy Collector for conversion of user of the land for non-agricultural purpose is in favour of petitioners 1 to 7. The complaint is that the permission granted by Ecological Development Council is in favour of petitioner No. 8 and therefore the Gram Panchayat was justified in keeping the matter in abeyance. The submission is entirely devoid of merit. Petitioner No. 8 was the developer of the property, who was developing the same on behalf of petitioners 1 to 7 and therefore the mere fact that the permission was in favour of petitioner No. 8 would not make any difference whatsoever in law and this is not a ground contemplated under Rule 3 of the Building Rules. We are also surprised to find that the Gram Panchayat was demanding that the petitioner should submit detailed estimate of the work, the building schedule and R.C. calculations of the work and liability certificate from the engineers. We fail to appreciate why the Panchayat should make such kind of demands on the petitioners. The Panchayat is required under the Building Rules to consider grant of permission provided certain conditions are satisfied, but surely the conditions do not require that the Panchayat should enter in to the investigation as to whether the estimate of the work or the building schedule is to the satisfaction of the Panchayat. In our judgment, it is obvious that the Panchayat is trying to encroach upon the area which it has no right whatsoever to inquire. In our judgment, the correspondence produced on record unmistakably establishes that the Panchayat was interested in withholding the permission on one pretext or the other.
7. Shri Kakodkar very strenuously submitted that under Rule 3(2)(vi) of the Building Rules the Village Panchayat is required to verify the ownership of the plot before granting permission. It was contended by the learned Counsel that though in the index of land names of petitioners 1 to 7 are shown as Kabjedars or owners, some parties raised objections or raised disputes as regards title of petitioners 1 to 7 and unless the Village Panchayat is satisfied about the titled of petitioners 1 to 7 permission could not have been granted. The submission is entirely misconceived. What the sub-rule requires is that the Village Panchayat should verify the ownership of the plot before granting the permission and this rule cannot be read so as to confer power upon the Village Panchayat to determine title to the property. It is also interesting to note that the permission was sought by the petitioners in April 1984 and the dispute were raised by one Chandrakant Naik on February 5, 1986 and which disputes impressed the Village Panchayat to keep the application for permission in abeyance. It is not difficult to imagine that such disputes are raised by people only to gain some profit when a large property is likely to be developed. In any event, it is not the business of the Village Panchayat to keep the application for permission in cold storage on the ground that disputes in respect of title to the property should be first resolved.
8. Shri Kakodkar then submitted that it is necessary for the Village Panchayat to ensure that the sanitary conditions are observed before grant of permission. We inquired from the learned Counsel whether it required more than 2 1/2 years fro the Village Panchayat to find out whether sanitary conditions were complied with or not, and Shri Kakodkar was obviously handicapped to give a reply in absence of any return. We have no doubt that the respondents are making a desperate attempt to sustain an unsustainable conduct of postponing the decision on the application. There is not a whisper about this ground at any time before.
9. Shri Kakodkar also submitted that the Development Authority is reconsidering or is thinking to modify the permission granted and in support of the submission our attention was invited to the letter dated October 16, 1986 addressed by Senior Town Planner to the Member Secretary of the Development Authority. The letter interalia recites that the project of the petitioners may need revision in the light of the new O.D.P. regulation in force, especially with respect to the minimum distance to be maintained in between two buildings. Now, it is interesting to note how this letter came to be addressed. Before the date of this letter we have been shown another letter dated August 12, 1986 addressed by the Associate Town Planner on behalf of the Chief Town Planner to the Sarpanch of the Gram Panchayat. The letter, inter alia, recites that the permission has been granted to the petitioners after satisfaction that all the necessary requirements are complied with. The letter recites that the site is falling in the settlement zone, the provisions of the Outline Development Plan are complied with, the Town and Country Planning Board has approved the applications, the project has been approved by His Excellency the Lt. Governor and the Government has also granted the approval. The present petition was filed on July 24, 1986 and the Division Bench of this Court issued to the Gram Panchayat notice before admission of the petition on August 4, 1986. Presumably after receipt of the notice from this Court, the Gram Panchayat passed a resolution on August 10, 1986 that Development Authority should be approached to cancel the permission. In accordance with the resolution, the Panchayat addressed letter to the Development Authority and thereafter the letter dated October 16, 1986, to which reference is made hereinabove, came to be addressed by the Town Planner to the Member Secretary of the Development Authority. We are not prepared to attach any importance to this letter for more than one reason. In the first instance, the background which led to the writing of this letter makes it highly suspicious as to whether the development authority has at l considered to modify the permission granted to the petitioners. Secondly, the letter only refers to the maintenance of distance between the two buildings and by no stretch of imagination this letter, which is an interdepartmental latter, could be read to hold that the Development Authority is rethinking about the permission granted in favour of the petitioners. We are unable to place any reliance on the contents of this letter and it is not possible to accept the submission of Shri Kakodkar that in view of the contents of this letter the petitioners should be deprived of the relief.
10. Shri Kakodkar also urged that Regulation 83(2) provides for an appeal to the Deputy Collector in case of refusal of permission by the Gram Panchayat and the remedy of the petitioners is to file an appeal and not approach this Court in writ jurisdiction. There is no merit whatsoever in this desperate submission. The respondents have not refused permission but have merely directed the petitioners to resubmit the application by communication dated July 1, 1986. As mentioned hereinabove, the Panchayat was not interested in refusing application but was more keen to keep it pending before it. In these circumstances, it is difficult to appreciate how the respondents can claim that the remedy of the petitioners is to file appeal. The remedy is available only when the Panchayat turns down the application and that the Panchayat is not willing to do.
11. Shri Kakodkar then submitted that Regulation 56(2) prescribes that no action shall be brought against any Panchayat for anything done or purported to be done under the Regulation until the expiration of two months next after the notice in writing. Regulation 56(1) also creates a bar for action against any member, officer, employee or agent of the Panchayat in respect anything done in good faith under the Regulation. Relying on this Regulation, it was contended that the present writ petition is not maintainable, because the petitioners have not served notice as contemplated under Regulation, 56(2) and in any event whatever has been done or not done by the Panchayat is in good faith. We are not at all impressed by the submission of the learned Counsel. In the first instance, this Regulation cannot bar our jurisdiction under Article 226 of the Constitution of India, Secondly, it is impossible to suggest that the conduct of the Panchayat in keeping the application pending for about 2 1/2 years is in good faith. In our judgment, there is no bar whatsoever under this Regulation for granting the relief sought by the petitioners.
12. Shri Kakodakar finally submitted that during the pendency of this petitioner, on December 26, 1986 the petitioners filed a fresh application for grant of permission and therefore the relief should not be granted. We do not find any merit in this submission. The petitioners have becomes desperate by the non-action of the Gram Panchayat and we can appreciate the plight of the petitioners as they have invested a large amount in the proposed project. In our judgment, the petitioners are entitled to the relief on the basis of the application filed on April 11, 1984.
13. Accordingly, petition succeeds and the rule is made absolute in terms of prayer (a). Respondent No. 1 shall pay the costs of the Petitioners.
Respondent No. 1 is directed to grant necessary permission within four weeks from to-day.