HC SETS ASIDE ORDER IN MOVAJ CASE!

STOPPED: The Goa bench of the Bombay High Court has stopped the illegal construction of Movaj Industries in Quelossim

By Adv Nigel da Costa Frias

High Court sets aside ex-parte order of Additional Director of Panchayats in Movaj Enterprise Quelossim project, issues directions as to how such appeals are to be dealt with!

Heard Mr. Nigel da Costa Frias for the Petitioner, Mr. Raunak Kantak for Respondent No.1 and Mr. D. J. Pangam, the learned Advocate General with Mr. Deep Shirodkar, Addl. Government Advocate for Respondents No.2 to 4.

  1. Rule. With the consent of and at the request of the learned Counsel for the parties, Rule is made returnable forthwith.
  2. The challenge in this Petition is to the Order dated 7th June, 2021, made by the Addl. Director of Panchayats at Margao, Goa , granting an ex parte stay on the stop notice dated 2nd June, 2021, issued by the Village Panchayat of Quelossim.
  3. On 19th June, 2021, we made the following order in this matter : “Heard Mr. Nigel Da Costa Frias, the learned counsel for the petitioner. 2. Issue notice to the respondents, returnable on 21/6/2021. In addition to the usual mode of service, private service is also permitted. 3. Mr. Deep Shirodkar, the learned Additional Government Advocate appears and waives service on behalf of the respondents no.2, 3 and 4.
  4. In this case, the Additional Director of Panchayat has stayed the notice and stop work order issued by the petitioner/panchayat. From the perusal of the order dated 7/6/2021 which is to be found at Annexure “H” page 49 of the paper book, there appears to be no reason as to why such ex parte relief has been granted. Further, the returnable date, is indicated as 24/6/2021, which means that the respondent no.1 can continue with the construction in the meanwhile.
  5. Mr. Costa Frias, the learned counsel for the petitioner points out that the respondent no.1, relying on the ex parte order dated 7/6/2021 even refused to attend the site inspection which was scheduled on 7/6/2021.
  6. Having regard to the aforesaid, we stay the impugned order dated 7/6/2021 till the next date i.e 21/6/2021.
  7. Having regard to the aforesaid, we stay the impugned order dated 7/6/2021 till the next date i.e 21/6/2021.
  8. Having regard to the aforesaid, we stay the impugned order dated 7/6/2021 till the next date i.e 21/6/2021.
  9. Having regard to the aforesaid, we stay the impugned order dated 7/6/2021 till the next date i.e 21/6/2021.
  10. This means that at least up to 21/6/2021, the respondent no.1 shall stand restrained from proceeding with any construction activity and will have to comply with the stay notice dated 2/6/2021 issued by the petitioner/panchayat
  11. The petitioner to take immediate steps to serve the respondent no.1. 9. Stand over to 21/6/2021.” 5. Further, on 21st June, 2021, we made the following order : “We have perused the affidavit in reply by the respondent No.1. To the affidavit is annexed the roznama as also the typed copy of the order by which ex-parte stay was granted by the Director on 07/06/2021. On perusing the typed copy, again, we find that only contentions have been recorded but there are no reasons given for grant of exparte stay order. Further, there is no justification or ground whatsoever as to why after grant of ex-parte stay order the hearing was fixed after 22 days i.e. on 24/06/2021.
  12. Mr. Nigel Costa Frias, learned Advocate points out that even after service of the stay order by this Court on 20/06/2021, the respondent No.1 continued with the work. He submits that necessary affidavit alongwith photographic evidence will be filed in this Court by the next date.
  13. The connected Writ Petition challenging the grant of permission in favour of the respondent No.1 is now posted for hearing on 05/07/2021. In the said petition, already, the statement has been made on behalf of the respondent No1 that no work of desilting will be carried out at the site till the next date.
  14. Having regard to the copy of the order now placed before us, ad-interim order made by us which was to be continued till today is directed to continue until further orders.
  15. Mr. Kantak, learned Advocate for the respondent No.1 states that the respondent No.1/ their representatives will attend the site inspection which is scheduled on 24/06/2021. This statement is accepted. 6. Stand over to 05/07/2021.”
  16. Mr. Costa Frias had pointed out that despite our order dated 19th June, 2021, Respondent No.1 continued with the works at the site. Accordingly, we had granted time to Respondent No.1 to explain its conduct.
  17. Today, Mr. Kantak, the learned Counsel for Respondent No.1 submits that our order dated 19th June, 2021 was received at the site by a watchman, who was illiterate and did not understand its implications. Mr. Kantak submits that the order was made available to Respondent No.1 or their engineers on the next day i.e. 20th June, 2021 and, soon thereafter the works were stopped. He submits that apology has also been tendered on behalf of Respondent No.1 since there was no intention to willfully disobey any orders of this Court.
  18. Mr. Kantak also pointed out that presently, works have been stopped at the site and even the labourers and machinery at the site have since been withdrawn. He submits that there is no intention to proceed with the work, until the proceedings before the Additional Director of Panchayats are disposed of in accordance with law.
  19. In the peculiar facts of the present case, now that apology has been tendered on behalf of Respondent No.1, we do not deem it appropriate to initiate any action under the Contempt of Courts Act. This is despite the fact that Mr. Costa Frias has pointed out that the work stopped only after the Police complaint.
  20. We have perused the impugned ex parte order made by the Additional Director of Panchayats in this matter. According to us, the impugned ex parte order contains no reasons whatsoever. At least, brief reasons were required to be indicated by the Additional Director, particularly, because the effect of the ad interim ex parte order was virtually to grant the final reliefs prayed for in the proceedings by Respondent No.1. Normally, at the interim stage itself the Authorities should not proceed to grant the final reliefs.
  21. Further, we note that in this case, after grant of the impugned ad interim ex parte order, the Additional Director gave a returnable date after two weeks. This means that during the period of these two weeks, Respondent No.1, based upon such an order, could have very well proceeded with the construction works at the site and even completed the same. This is also not proper. If any ad interim ex parte order is to be made, then, at least returnable date must be short, so that the Respondent, who is affected by such an order, can be heard at the earliest.
  22. Of late, we have noticed that appeals are being entertained by the Authorities under the Panchayat Raj Act even against the show cause notices or stop work orders. Whilst, there may or may not be any bar for entertainment of such appeals, the Authorities should not, as a matter of course, and that too without indicating any reasons, grant interim reliefs based upon which the parties who are alleged to have done some illegal construction, are in a position to proceed with the construction activity. Mr. Costa Frias pointed out that as a result of the impugned ex parte order, Respondent No.1 proceeded with the activity and, but for the order made by this Court, might have even proceeded to complete such activity and thereafter raise the issue of fait accompli.
  23. This was not a case where the Panchayat had issued some demolition order and an urgent ad interim relief was necessary, so that the Panchayat does not implement its demolition order and render the appeal futile or infructuous to a great extent. Even, in such cases, brief reasons are necessary for grant of an ex parte ad interim protection or for that matter, interim protection.
  24. According to us, the impugned ex parte interim order granted in this case, is quite unsustainable. This is because, it is bereft of any reasons, and secondly, the Additional Director has proceeded to grant the final relief at the ad interim stage and that too, ex parte. The impugned ex parte ad interim relief, is, therefore, set aside.
  25. Mr. Kantak for Respondent No.1 has already stated that Respondent No.1 will not proceed with any illegal construction at the site, until the proceedings before the Additional Director of Panchayats are disposed of. This statement is accepted. Respondent No.1 will have to strictly abide by this statement.
  26. The Additional Director of Panchayats to dispose of the Panchayat Appeal No.59/2021 in accordance with law and on its own merits, as expeditiously as possible. Such disposal will be after granting the Village Panchayat of Quelossim, who is the Respondent before the Additional Director, a proper opportunity.
  27. Mr. Costa Frias, learned Counsel for the Panchayat states that the Panchayat has already filed a reply and will cooperate with the Additional Director for expeditious disposal of the Appeal instituted by Respondent No.1. This statement is also accepted. 18. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. 19. All concerned to act based on an authenticated copy of this order.
    Smt. M.S. Jawalkar, J. M.S. Sonak, J.

Leave a Reply

Your email address will not be published. Required fields are marked *

+ 18 = 19