# VILLAGE PANCHAYAT, CALANGUTE v. THE ADDITIONAL DIRECTOR OF PANCHAYAT-11 AND ORS

- **Citation:** [2012] 6 S.C.R. 277
- **Court:** Supreme Court of India
- **Decided:** 2012-07-02
- **Case number:** Civil Appeal No. 4832 of 2012
- **Bench:** G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/village-panchayat-calangute-v-the-additional-director-of-panchayat-11-and-ors-28181
- **Pages:** 30

## Headnote

A
B
Goa Panchayat Raj Act, 1994 - ss. 3, 64 and 8 -
C
Establishment of village Panchayat u/s. 3 - Order passed by
the designated officer-Additional Director of Panchayat
exercising the power of an appellate authority qua the action/
decision/resolution of the Village Panchayat - Locus of
Village Panchayat to file a petition under Article 226 and/or
D
227 for setting aside the. order passed by Additional Director
of Panchayat - On appfial, held: Village Panchayat has the
locus to challenge the orders passed by Additional Director
of Panchayat - On facts, local residents had complained
against the illegal construction of blocking access to water well
E
and the chapel by a Cpompany and the Village Panchayat
passed separate resolutions for revocation of occupancy
certificate and permission for construction -
Thereafter,
Sarpanch issued notices to the Company and directed it to
stop the further construction - However, the Additional Director F
of Panchayat instead of suspending the execution of the
resolutions passed by the Village Panchayat or the notice
issued by the Sarpanch and sending the matter to the State
Government for confirmation, suo-moto annulled the
resolutions and the notice by assuming that he had the power G
to do so -
Thus, while the village Panchayat and the
Sarpanch had exercised their respective powers in public
interest, Additional Director of Panchayat nullified that
exercise because he felt that the resolution/action was contrary·
277
H
278
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A to law and was unjustified - While exercising the power under
the Act, the Panchayat was not acting as a subordinate to
Additional Director of Panchayat but as a body representing
the will of the people and also a body corporate in terms of
s. 8 - High Court erred in holding that the writ petition filed by
B the Village Panchayat challenging the order passed by
Additional Director of Panchayat was not maintainable -
Order passed by the High Court set aside - Writ petitions filed
by the Village Panchayat being maintainable, restored to their
c
original numbers.
Panchayat - Functions and responsibilities of village
panchayat - Explained.
The question which arose for consideration in the
instant appeals was whether a Village Panchayat
D established under Section 3 of the Goa Panchayat ~aj
Act, 1994 or any other statutory dispensation existing
· prior to the enactment of the Act has the locus to file a
petition under Article 226 and/or 227 of the Constitution
for setting aside an order passed by the designated
E officer exercising the power of an appellate authority qua
the action/decision/resolution of the Village Panchayat.
Appellant-Village Panchayat granted permission to a
Company for raising construction on property. It is
F alleged that the company made illegal construction
whereby it blocked the access to the water well and the
chapel. The local residents made a complaint. The
appellant passed resolution for revocation of the
occupancy certificate. By another resolution the
permission granted
~o the company for raising
G construction was revoked. Aggrieved, the appellant filed
Panchayat Petition and the resolution canceling the
permission was recalled since the rules of natural justice ·
was not followed. Thereafter, the Sarpanch issued notice
under Section 64 of the Goa Panchayat Raj Act, 1994 and
H
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 279.
DIRECTOR OF PANCHAYAT-11
directed the company to stop further construction. The
A
Company challenged the notice in Panchayat Appeal and
respondent No.1-the Additional Director of Panchayat
passed an ex-parte interim order. Meanwhile, the
Company filed an application for grant of permission to
use the property for running a guest house and the
appellant rejected the same. The Company challenged
8
the decision of the Gram Panchayat in Panchayat Appeal.
Some residents also filed a complaint before Block
Development Officer against the illegal construction
raised by the company. The Block

## Text

_Characters 0–39,621 of 57,070. This is a partial read: ask again with offset=39621 for what follows._

[2012] 6 S.C.R. 277
VILLAGE PANCHAYAT, CALANGUTE
v.
THE ADDITIONAL DIRECTOR OF PANCHAYAT-11 AND
ORS.
(Civil Appeal No. 4832 of 2012)
JULY 02, 2012
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
A
B
Goa Panchayat Raj Act, 1994 - ss. 3, 64 and 8 -
C
Establishment of village Panchayat u/s. 3 - Order passed by
the designated officer-Additional Director of Panchayat
exercising the power of an appellate authority qua the action/
decision/resolution of the Village Panchayat - Locus of
Village Panchayat to file a petition under Article 226 and/or
D
227 for setting aside the. order passed by Additional Director
of Panchayat - On appfial, held: Village Panchayat has the
locus to challenge the orders passed by Additional Director
of Panchayat - On facts, local residents had complained
against the illegal construction of blocking access to water well
E
and the chapel by a Cpompany and the Village Panchayat
passed separate resolutions for revocation of occupancy
certificate and permission for construction -
Thereafter,
Sarpanch issued notices to the Company and directed it to
stop the further construction - However, the Additional Director F
of Panchayat instead of suspending the execution of the
resolutions passed by the Village Panchayat or the notice
issued by the Sarpanch and sending the matter to the State
Government for confirmation, suo-moto annulled the
resolutions and the notice by assuming that he had the power G
to do so -
Thus, while the village Panchayat and the
Sarpanch had exercised their respective powers in public
interest, Additional Director of Panchayat nullified that
exercise because he felt that the resolution/action was contrary·
277
H
278
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A to law and was unjustified - While exercising the power under
the Act, the Panchayat was not acting as a subordinate to
Additional Director of Panchayat but as a body representing
the will of the people and also a body corporate in terms of
s. 8 - High Court erred in holding that the writ petition filed by
B the Village Panchayat challenging the order passed by
Additional Director of Panchayat was not maintainable -
Order passed by the High Court set aside - Writ petitions filed
by the Village Panchayat being maintainable, restored to their
c
original numbers.
Panchayat - Functions and responsibilities of village
panchayat - Explained.
The question which arose for consideration in the
instant appeals was whether a Village Panchayat
D established under Section 3 of the Goa Panchayat ~aj
Act, 1994 or any other statutory dispensation existing
· prior to the enactment of the Act has the locus to file a
petition under Article 226 and/or 227 of the Constitution
for setting aside an order passed by the designated
E officer exercising the power of an appellate authority qua
the action/decision/resolution of the Village Panchayat.
Appellant-Village Panchayat granted permission to a
Company for raising construction on property. It is
F alleged that the company made illegal construction
whereby it blocked the access to the water well and the
chapel. The local residents made a complaint. The
appellant passed resolution for revocation of the
occupancy certificate. By another resolution the
permission granted
~o the company for raising
G construction was revoked. Aggrieved, the appellant filed
Panchayat Petition and the resolution canceling the
permission was recalled since the rules of natural justice ·
was not followed. Thereafter, the Sarpanch issued notice
under Section 64 of the Goa Panchayat Raj Act, 1994 and
H
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 279.
DIRECTOR OF PANCHAYAT-11
directed the company to stop further construction. The
A
Company challenged the notice in Panchayat Appeal and
respondent No.1-the Additional Director of Panchayat
passed an ex-parte interim order. Meanwhile, the
Company filed an application for grant of permission to
use the property for running a guest house and the
appellant rejected the same. The Company challenged
8
the decision of the Gram Panchayat in Panchayat Appeal.
Some residents also filed a complaint before Block
Development Officer against the illegal construction
raised by the company. The Block Development Officer c
dismissed the complaint holding that the construction
made by the company was not illegal and any restriction
on the use of property would seriously prejudice its
cause. The appellant filed writ petition challenging the
orders passed by respondent No.1 and order passed by
0
the Block Development Officer on the ground that
respondent No.1 did not have the jurisdiction to entertain
an appeal against the notice issued under Section 64 of
the Act and, in any case, such notice could not be stayed
under Section 178; that even if the appeal filed by the
company was treated as maintainable, there was no
justification to pass an interim order which had the effect
of allowing the appeal; and that the Block Development
Officer could not have exercised power under Section 66
of the Act and disposed of the complaint filed by the local
residents and thereby allowed the company to continue
the illegal construction which had effectively blocked
access to the water well and the chapel. During the
pendency of the writ petition, respondent No.1 passed
final order in Panchayat Appeal and directed the appellant
E
F
to reconsider the application made by the company for
G
grant of permission to use the property for running a
guest house. The appellant filed a writ petition
challenging the order passed by respondent No. 1. The
Single Judge of the High Court dismissed both the writ
H
280
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A petitions as not maintainable. Therefore, the appellant
filed the instant appeals.
Allowing the appeals, the Court
HELD: 1.1 A conjoint reading of the prov1s1ons
B contained in Chapter Ill of the Goa Panchayat Raj Act,
1994 shows that a Panchayat is generally required to
perform the functions specified in Schedule I and also
make provision for carrying out any other work or
measures likely to promote the health, safety, education,
C comfort or convenience or social or economic well-being
of the inhabitants of the Panchayat area. It also has the
power to do all acts necessary for or incidental to
carrying out the functipns entrusted, assigned or
delegated to it. The Sarpanch is not only entrusted with
D the duty to implement the programme of welfare schemes
and other development works, but also stop any
unauthorised construction erected in the Panchayat area.
Section 66 which regulates erection of buildings within
Panchayat area empowers it and/or the Sarpanch to take
E action against erection of building without obtaining
permission from the competent authority or any violation
of the conditions imposed at the time of grant of such
permission. The Panchayat is also empowered to issue
direction for up-keep and maintenance of sources of
F water supply which are in private hands. [Para 18) [299F-H; 300-A-B]
1.2. Section 178 empowers the Director to suspend
the execution of any order or resolution passed by a
Panchayat or prohibit the doing of anything by or on
G behalf of a Panchayat if he is satisfied that the execution
of any such order or resolution or doing of anything by
or on behalf of the Panchayat is unjust, unlawful or is
improper or is causing or is likely to cause injury or
annoyance to the public or lead to a breach of peace.
H Section 178(2) casts a duty on the Director to forward to
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 281
DIRECTOR OF PANCHAYAT-11
the Government and the Panchayat affected by his order
A
a copy of the statement of reasons for making the order.
The Government has the power to confirm or rescind the
order or direct that it shall continue to remain in force with
or without modification permanently or for a specified
period. Proviso to this Section imposes an obligation on
B
the Government to give reasonable opportunity of
showing cause to the concerned Panchayat against the
proposed confirmation, revision or modification of the
order of the Director. Section 201 provides for appeal
against an order of the Panchayat made under Sections c
76, 77, 84, 104 and 105. Where no appeal has been
provided under the Act on any miscellaneous matter dealt
with by the Panchayat or the Village Panchayat Secretary
or the Sarpanch, an appeal lies to the Block Development
Officer under Section 201-A(1 ). In terms of Section 201D
A(2), Deputy Direct~r is empowered to exercise revisional
power qua the order which may be passed by the Block
Development Officer under sub-section (1 ). [Para 19]
[300-C-H]
1.3. In both the cases, respondent No.1 set aside the
E
resolutions passed by the appellant as also the notice
issued by the Sarpanch. The orders passed by
respondent No.1 do not refer to the particular provision
under which the concerned officer was exercising the
appellate power. Surely, he could not have exercised the
F
power vested in the appellate authority under Section 201
because the source of power of the resolutions passed
by the appellant and the notice issued by the Sarpanch
cannot be traced in Sections 76, 77, 84, 104 and 105 of
the Act which relate to removal of any building or part
G
thereof or any tree or branch of a tree if it is in a ruinous
state or is likely to-fall or is otherwise dangerous to any
person occupying such building or part thereof or
matters relating to sanitation, conservancy and drainage
or exercise of power by the Secretary in relation to any
H
282
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A well, stream, channel, tank or other source of water
supply or which postulates right to carry drain through
land or into drain belonging to other persons. Similarly,
respondent No.1 cannot be said to have exercised power
under Section 201-A because under that provision, only
B the Block Development Officer is competent to entertain
an appeal in a miscellaneous matter which is dealt with
by the Panchayat or the Village Panchayat Secretary or
the Sarpanch and against which no appeal has been
specifically provided under the Act. Therefore, it is
c reasonable to infer that respondent No.1 had exercised
power under Section 178(1). However, instead of
suspending the execution of the resolutions passed by
the appellant or the notice issued by the Sarpanch and
sending the matter to the State Government for
0
confirmation, the concerned officer suo-moto annulled
the resolutions and the notice by assuming that he had
the power to do· so. It is thus, evident that while the
appellant and the Sarpanch had exercised their
respective powers in public interest, respondent No.1
nullified that exercise because he felt that the resolution/
E action was contrary to law and was unjustified. While
exercising the power under the Act, the Panchayat was
not acting as a subordinate to respondent No.1 but as a
body representing the will of the people and also a body
corporate in terms of Section 8 of the Act. Therefore, it
F had the locus to challenge the orders passed by
respondent No.1 and the High Court was clearly in error
in holding that the writ petition was not maintainable. The
writ petitions filed by the appellant were maintainable and
the Single Judge of the High Court committed grave error
G by summarily dismissing the same. The contrary view
expressed by the High Court in other judgments does
not represent the correct legal position. The impugned
order is set aside and the writ petitions filed by appellant
are restored to their original numbers. The High Court
H shall now issue notice to the respondents and decide the
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 283
DIRECTOR OF PANCHAYAT-11
writ petitions on merits. [Para 20, 21, 26 and 27] [301-CA
H; 302-A-D; 306-D-F]
Karunagappally Grama Panchayat v. State of Kera/a
1996 (1) KLT 419; High Court of M.P. v. Mahesh Prakash
and others (1995) 1 SCC 203; State of Orissa v. Union of
B
India 1995 Supp. (2) SCC 154; Godde Venkateswara Rao
v. Government of Andhra Pradesh AIR 1966 SC 828 - relied
on.
Village Panchayat of Calangute v. The Deputy Director
of Panchayats 2004(2) Goa LR 497; Karunagappal/y Grama
C
Panchayat v. State of Kera/a 1996 (1) KLT 419; Village
Panchayat of Velim v. Shri Valentine S.K.F. Rebello and
another 1990(1) Goa LT 70 - referred to.
Rex v. London Quarter Sessions Ex parte Westminster
Corporation (1950) 1 KB 148 - referred to.
Case Law Reference:
2004(2) Goa LR 497
Referred to.
Para 9
1996 (1) KLT 419
Referred to.
Para 9
1990(1) Goa LT 70
Referred to.
Para 10
(1950) 1 KB 148
Referred to.
Para 10
1996 (1) KLT 419
Relied on.
Para 22
(1995) 1 sec 203
Relied on.
Para 23
1995 supp. (2) sec 154
Relied on.
Para 24
AIR 1966 SC 828
Relied on.
Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4832 of 2012.
From the Judgment & Order dated 18.8.2010 of the High
D
E
F
G
Court of Bombay at Goa in Writ Petition No. 312 of 2010.
H
A
B
c
284
SUPREME COURT REPORTS
[2012] 6 S.C.R.
WITH
C.A. No. 4833 of 2012
Shyam Divan, Pratap Venugopal, Varun Singh, Gaurav
-Nair for the Appellant.
V.C. Daga, Neil Hildreth, Shruti Sabharwal, Ritu Rastogi,
Praveen Kumar, .Siddharth Bhatnagar, Pawan Kr. Bansal, T.
Mahipal for the Respondents.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
2. Whether a Village Panchayat established under Section
3 of the Goa Panchayat Raj Act, 1994 (for short, 'the Act') or
o any other statutory dispensation existing prior to the enactment
of the Act has the locus to file a petition under Article 226 and/
or 227 of the Constitution for setting aside an order passed by
the designated officer exercising the power of an appellate
authority qua the action/decision/resolution of the Village
E Panchayat is the question which arises for consideration in
these appeals filed against order dated 18.08.2010 passed by
the learned Single Judge of the Bombay High Court, Goa Bench
in Writ Petition Nos. 16 and 312 of 2010.
3. M/s. Kay Jay Constructions Company Pvt. Ltd.
F (hereinafter described as, 'the company') (respondent No.4 in
the appeal arising out of SLP (C) No.1758 of 2011) was
granted permission by the appellant in 2006 for raising
construction on property bearing Survey No. 362/12 and part
of Survey No. 362/10 at Porbawado, Calangute, Bardez. The
G company is said to have illegally constructed a wall and thereby
blocked access to the water well situated in Survey No.362/10
and the chapel situated beyond Survey No.362112 as also the
existing water drains. When the local residents complained
against the illegal construction, the appellant passed resolution
H
VILLAGE PANCHAYAT, CALANGUTE v_ ADDITIONAL 285
DIRECTOR OF PANCHAYAT-11 [G.S. SINGHVI, J.]
dated 24.03.2008 for revocation of the occupancy certificate,
A
' which was issued by the Secretary on the basis of what were
termed as manipulated resolutions passed on 22.12.2007 and
28.02.2008. The appellant passed another resolution dated
25.3.2009 and revoked the permission granted to the company.
The latter challenged the same by filing Panchayat Petition
B
No.6/2009 on the ground that the decision taken by the
appellant was contrary to the rules of natural justice. On realizing
that the action taken by it was not proper, the appellant revoked
resolution dated 25.03.2009. Thereafter, the Sarpanch issued
notice dated 29.7.2009 under Section 64 of the Act and c
. directed the company to stop further construction.
Simultaneously, he fixed 4.8.2009 as the date for inspection
of the site. The company challenged the notice in Panchayat
Appeal No.12/2009. Respondent No.1 - the Additional Director
of Panchayat entertained the appeal and passed an ex-parte
D
interim order dated 3.8.2009.
4. In the meanwhile, application dated 24.7.2009 was
made on behalf of the company for grant of permission to use
the property for running a guest house. The same was rejected
by the appellant vide resolution dated 4.8.2009. The Managing
E
Director of the company challenged the decision of the Gram
Panchayat in Panchayat Appeal No.174/2009. On being_
noticed, the appellant made a request that hearing of
Panchayat Appeal No. 174/2009 may be deferred till the
disposal of Panchayat Appeal No. 12/2009 and it may be
F
permitted to inspect the construction made by the company.
Respondent No.1 rejected the appellant's request and fixed
Panchayat Appeal No.17 4/2009 for final hearing.
5. It is borne out from the record that some residents had
also filed complaint before Block Development Officer, Bardez,
G
Goa against the illegal construction raised by the company and
the consequential blockage of access to the well and change
of the natural flow of rain water resulting in water logging.
Initially, the Block Development Officer pass~d an injunction
order against the company but after considering the latter's
H
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SUPREME. COURT REPORTS
[2012] 6 S.C.R.
A reply, he dismissed the complaint by observing that the
construction made by the company was not illegal and any
restriction on the use of property would seriously prejudice its
cause.
B
6. The appellant challenged orders dated 3.8.2009 and
30.11.2009 passed by respondent No.1 and order dated
19.10.2009 passed by the Block Development Officer in Writ
Petition No.16/2010 on the ground that respondent No.1 did
not have th,e jurisdiction to entertain an appeal against the notice
issued under Section 64 of the Act and, in any case, such
C notice could not be stayed under Section 178. It was also
pleaded that even if the appeal filed by the company was
treated as maintainable, there was no justification to pass an
interim order which had the effect of allowing the appeal. As
regards the order of the Block Development Officer, it was
D pleaded that he could not have exercised power under Section
66 of the Act and disposed of the complaint filed by the local
residents and thereby allowed the company to continue the
illegal construction which had effectively blocked access to the
E
water well and the chapel.
7. During the pendency of Writ Petition No.16/2010,
respondent No.1 passed final order dated 12.02.2010 in
Panchayat Appeal No. 12/2009 and directed the appellant to
reconsider the application made by the company for grant of
F permission to use the property for running a guest house. The
appellant challenged that order in Writ Petition No. 312/2010.
G
8. The learned Single Judge of the High Court relied upon
the order passed in Writ Petition No.620/2009 and dismissed
both the writ petitions as not maintainable.
9. Shri Shyam Divan, learned senior counsel relied upon
the judgment of the learned Single Judge in Village Panchayat
of Calangute v. The Deputy Director of Panchayats 2004(2)
Goa LR 497 and of the Division Bench of the Kerala High Court
H in Karunagappally Grama Panchayat v. State of Kerala 1996
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 287
DIRECTOR OF PANCHAYAT-11 [G.S. SINGHVI, J.]
(1) KLT 419 and argued that summary dismissal of the writ
A
petitions was not at all warranted because the issues raised
by the appellant were of considerable public importance. Shri
Divan submitted that the illegal construction raised by the
company has the effect of preventing the public from having
access to the water well in Survey No. 362/10 and the chapel
B
situated beyond Survey No.362/12 and argued that the
appellant being a representative body of the people of the
village has the right to question the orders passed by
respondent No.1 and the Block Development Officer and the
High Court could not have non-suited it by accepting the narrow C
interpretation of the term 'person aggrieved'.
10. Shri V.C. Daga, learned senior counsel for the
company relied upon the judgment of the Division Bench of the
High Court in Village Panchayat of Velim v. Shri Valentine
S.K.F. Rebello and another 1990(1) Goa LT 70 and order D
dated 13.08.2010 passed by learned Single Judge in Writ
Petition No. 629/2009 and batch and argued that the writ
petitions filed by the appellants were rightly dismissed as not
maintainable. Shri Daga also relied upon the judgment in Rex
v. London Quarter Sessions Ex parte Westminster E
Corporation (1950) 1 KB 148 and argued that the appellant
cannot be treated as a 'person aggrieved' by the orders
passed by respondent No.1 and the Block Development Officer.
Learned senior counsel also pointed out that Writ Petition No.
5/2010 filed by the local residents questioning order dated
F
19.10.2009 passed by the Block Development Officer was
dismissed by the learned Single Judge vide order dated
20.10.2010 and argued that in view of that order the appellant
is estopped from questioning order dated 19.10.2009 .
11. We have considered the respective submissions.
G
Before independence, majority population of the States which
merged in the Union was rural. After independence and even
now India continues to be a pre-dominantly rural country. There
are almost six lakh villages in the country and almost 75% of
H
288
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A the population lives in the villages. Article 40 of the Constitution,
which enshrines one of the Directive Principles of State Policy
was incorporated in the Draft Constitution in the light of the
suggestions made by S/Shri M.A. Ayangar, N.G. Ranga,
Surendra Mohan Ghose and Seth Govind Das, all of whom
B strongly advocated that the dream of the Father of Nation of
initiating democracy at the grass root (rural India) be translated
into reality by making Panchayats as units of self-Government.
This Article mandates the State to take steps to organize
Village Panchayats and endow tbem with such powers and
c authority as may be necessary to enable them to function as
units of self-Government. Notwithstanding the mandate of Article
40, the State failed to take effective steps to make Village
Panchayats as units of self-Government. In 1977, a Committee
was constituted under the chairmanship of Shri Ashok Mehta
D to evaluate Panchayati Raj institutions and their functioning. In
its report, the Committee observed that the existing model of
Panchayats has failed to transfer the fruits of democracy to the
weaker sections of society because they are dominated mostly
by socially and economically privileged people.
E
F
G
H
12. In 1992, the Constitution (Seventy-third Amendment)
Act was introduced. in Parliament and the existing Part IX was
substituted. The background in which this amendment was
introduced is evinced from the first two paragraphs of the
Statement of Objects and Reasons, which are extracted below:
"Though the Panchayati Raj institutions have been in
existence for a long time, it has been observed that these
institutions have not been able to acquire the status and
dignity of viable and responsive people's bodies due to a
number of reasons including absence of regular elections,
prolonged supersessions, insufficient representation of
weaker sections like Scheduled Castes, Scheduled Tribes
and women, inadequate devolution of powers and lack of
financial resources.
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 289
DIRECTOR OF PA~CHAYAT-11 [G.S. SINGHVI, J.]
Article 40 of the Constitution which enshrines one of the
A
directive principles of State Policy lays down that the State
shall take steps to organise Village Panchayats and
endow them with such powers and authority as may be
necessary to enable them to function as units of selfgovernment. In the light of the experience in the last forty
B
years and in view of the shortcomings which have been
observed, it is considered that there is an imperative need
to enshrine in the Constitution certain basic and essential
features of Panchayati Raj institutions to impart certainty,
continuity ahd strength to them."
c
13. l"he aforesaid amendment is a turning point in the
history of local self-Government. By this amendment Panchayat
became an 'institution of self-governance' -Article 243(d) and
comprehensive provisions came to be incorporated for
democratic decentralization of governance on Gandhian
principle of participatory democracy. The Panchayati Raj
institutions structured under 73rd Amendment are meant to
bring about sweeping changes in the governance at the grass
root level. By this amendment, Parliament introduced three tier
system of Panchayati Raj institutions at Village, Block and
District levels. Article 243-C provides for composition of a
Panchayat and filling up of the seats in a Panchayat by direct
election. Article 243-0 provides for reservation of seats and
Article 243-E provides for duration of Panchayat. Article 243F enumerates the grounds of disqualification of membership
of the Panchayat and Article 243-G prescribes the powers,
authority and responsibilities of a Panchayat. Article 243-H
gives power to the State Legislatures to enact law and
authorise a Panchayat to levy, collect and appropriate taxes,
duties, tolls and fees; assign to a Panchayat such taxes, duties,
tolls and fees levied and collected by the State Government and
also provide for making such grants-in-aid to the Panchayats
from the Consolidated Fund of the State. Clause (d) of this
Article envisages a legislative provision for constitution of
appropriate provisions for crediting all monies received by or
D
E
F
G
H
290
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
on behalf of the Panchayats and also for withdrawal of such
monies. Article 243-1 envisages constitution of Finance
Commission to review financial position of the Panchayats.
Article 243-K (1) declares that the superintendence, direction
and control of the preparation of electoral rolls for, and the
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conduct of, all elections to the Panchayats shall be vested in a
State Election Commission. Clause 4 of this Article empowers
the State Legislature to make law with respect to all matters
relating to, or in connection with, elections to the Panchayats.
By virtue of Article 243-L, the provisions of Part IX have been
c made applicable to the Union Territories. Article 243-M declares
that provisions of Part IX shall not apply to the Scheduled Areas
referred to in clause (1) and the tribal areas referred to in clause
(2) of Article 244, the States_of Nagaland, Meghalaya and
Mizoram, hill areas in the State of Manipur for which District
0
Councils exist as also the hill areas of Darjeeling. Clause 3(a)
of this Article excludes the application of the provisions relating
to reservation of seats for the Scheduled Castes insofar as the
State of Arunachal Pradesh is concerned. Article 243-N
contains a transitory provision for continuance of the existing
laws for a maximum period of one year. Article 243-0 contains
E a non-obstante clause and declares that the validity of any law
relating to the delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting to be made
under Article 243-K, shall not be called in question in any Court
and that no election to any Panchayat shall be called in question
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except by an election petition presented to such authority and
in such manner as is provided for by or under any law made
by the State Legislature. Article 243(d) and Article 243-G which
have bearing on the issue raised in theses appeals read as
under:
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"243(d). In this Part, unless the context otherwise requires,-
(d) "Panchayat" means an institution (by whatever name
called) of self-government constituted under article 2438,
for the rural areas;
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243G. Powers, authority and responsibilities of Panchayat
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-_Subject to the provisions of this Constitution, the
Legislature of a State may, by law, endow the Panchayats
with such powers and authority and may be necessary to
enable them to function as institutions of self-government
and such law may contain provisions for the devolution of
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powers and responsibilities upon Panchayats, at the
appropriate level, subject to such conditions as may be
·specified therein, with respect to
.@}.the preparation of plans for economic development and
social justice;
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till the implementation of schemes for economic
development and social justice as may be entrusted to
them including those in relation to the matters listed in the
Eleventh Schedule."
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14. In the light of the Constitution (Seventy-third
Amendment) Act, the State legislature enacted the Act, as is
evident from its preamble, which reads thus:
"Whereas it is expedient to replace the present enactment
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by a comprehensive enactment to establish a two-tier
Panchayat Raj System in the State with elected bodies at
village and district levels, in keeping with the Constitution
Amendment relating to Panchayats for greater
participation of the people and more effective
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implementation of rural development programmes."
15. Chapter I of the Act contains definitions of various terms
including "Panchayat" which means a Village Panchayat
established under Section 3. Chapter II contains provisions
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relating to Gram Sabha and constitution of Panchayats
including election to the Panchayats in which every person
enrolled in the electoral roll of the Legislative Assembly of the
State is entitled to participate. Chapter Ill contains provisions
relating to funciions, duties and powers of Panchayats,
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Sarpanch and Deputy Sarpanch. Since, we are not concerned
with the provisions relating to staff of Panchayats, constitution
of Taluka Panchayats and related provisions, constitution of
Zilla Panchayats and related provisions, we do not consider it
necessary to make a detailed reference to the provisions
B contained in Chapters IV to IX. Chapter X contains provisions
relating to inspection and supervision etc. of Panchayats.
Chapter XI relates to financial control and audit. Chapter XII
incorporates miscellaneous provisions. For the sake of
reference, Sections 2(14), 3(1), (2), 47-A, 60, 62, 64, 66, 70,
c 84, 178, 201, 201-A and relevant portions of Schedule-I are
reproduced below:
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"CHAPTER I
Preliminary
2. Definitions.- In this Act, unless the context otherwise
requires,-
(14) "Panchayat" means a Village Panchayat
established under section 3;
I
CHAPTER II
Gram Sab.ha -
Constitution of Panchayats
3. Declaration of Panchayat areas and establishment of
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Panchayats.- (1) After making such inquiry as may be
necessary, the Government may, by notification, declare
a local area, comprising of a village or a group of villages
or any part or parts thereof, or a combination of any two
or more of them to be a Panchayat area for the purposes
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of this Act and also specify its headquarters.
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(2) For every Panchayat area, there shall be a Panchayat
as from such date as the Government may, by notification,
appoint.
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DIRECTOR OF PANCHAYAT-11 [G.S. SINGHVI, J.]
47-A.
Executive
powers of the
Sarpanch.-
A
Notwithstanding anything contained in this Act and the
rules framed thereunder, the Sarpanch shall exercise the
powers on the following matters, namely:-
(i) to implement the programme of welfare schemes and
other developmental works;
(ii) to execute and implement the resolution passed by the
Panchayat on the matters not specified in section 47.
(Inserted by the Amendment Act 1 of 1997)
CHAPTER Ill
Functions, Duties and Powers of Panchayats, Sarpanch and
Deputy Sarpanch
60. Functions of the Panchayat.- (1) Subject to such
conditions as may be specified by the Government from
time to time, the Panchayat shall perform the functions
specified in Schedule-I.
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(2) The Pa_nchayat may also make provision for carrying
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out within the Panchayat area any other work or measure
which is likely to promote the health, safety, education,
comfort, convenience or social or economic well-being of
the inhabitants of the Panchayat area.
62. General powers of the Panchayat.- Panchayat shall
have powers to do all acts necessary for or incidental to
the carrying out of the functions entrusted, assigned or
delegated to it and in particular and without prejudice to
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the foregoing powers to exercise all powers specified
under this Act.
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64. Powers and duties of the Sarpanch and Deputy
Sarpanch.- (1) The Sarpanch of the Panchayat shall, in
addition to the power exercisable under any other provision
of this Act or rules made thereunder,-
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(j) stop any unauthorized construction erected in the
Panchayat area notwithstanding anything contained in subsection (3) of section 66 of this Act and place the matter
immediately before the ensuing meeting of the Panchayat
for taking suitable decision;
(k) remove encroachment and obstruction upon public
property, street, drains and open sites not being private
property;
(I) ensure due compliance of the provisions of the Act; and
66. Regulation of the erection of buildings.- (1) Subject
to such rules as may be prescribed, no person shall erect
any building or alter or add to any existing building or
reconstruct any building without the written permission of
the Panchayat. The permission may be granted on
payment of such fees as may be prescribed.
(2) If a Panchayat does not, within thirty days from the date
of receipt of application, determine whether such
permission should be given or not and communicate its
decision to the applicant, the applicant may file an appeal
within thirty days from the date of expiry of aforesaid
period, to the Deputy Director who shall dispose of the
same within thirty days from the date of filings of such
appeal. If the Deputy Director fails to dispose of the appeal
within thirty days, such permission shall be deemed to have
been given and the applicant may proceed to execute the
work, but not so as to contravene any of the provisions of
this Act or any rules or bye-laws made under this Act.
(3) Whenever any building is erected, added to or
reconstructed without such permission or in any manner
contrary to the rules prescribed under sub-section (1) or
any conditions imposed by the permission granted, the
Panchayat may,-
VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 295
DIRECTOR OF PANCHAYAT-11 [G.S. SINGHVI, J.]
(a) direct that the building, alteration or addition be
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stopped; or
(b) by written notice require within a reasonable
period to be specified therein, such building
alteration or addition to be altered or demolished.
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70. Control of hotels etc.- No place within the jurisdiction
of a Panchayat shall be used as a hotel, restaurant, eating
house, coffee house, sweetmeat shop, bakery, boarding
house or lodging house (other than a hostel recognized by
the Government), or a dharmashala or for manufacturing C
ice or aerated water except under a licence granted or
renewed by the Panchayat and except in accordance with
condition specified therein.
84. Powers and duties in regard to sources of water D
supply.- The Secretary or any officer authorized by the
Panchayat in this behalfmay at any time by written notice
require that the owner or any person who has control over
any well, stream, channel, tank, or other source of water
supply shall, whether it is private property or not,-
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(a) if the water is used for drinking,-
(i)
(ii)
(iii)
(iv)
keep and maintain any such source of water supply
other than a stream, in good repair; or
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within a reasonable time to be specified in the
notice, cleanse any such source of water supply
from silt, refuse and decaying vegetation; or
in such manner as the Panchayat may direct,
protect any such source of water supply from
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pollution by surface drainage; or
desist from using and from permitting others to use
for drinking purposes any such sources of water
supply, which not being a stream in its natural flow,
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is in the opinion of the Panchayat unfit for drinking;
or
(v)
if notwithstanding any such notice under sub-clause
(iv), such use continues and cannot, in the opinion
of the Panchayat, be otherwise prevented, close
either temporarily or permanently, or fill up or
enclose or fence in such manner as the Panchayat
considers sufficient to prevent such use, such
source of water supply; or
(vi)
drain off or otherwise remove from any such source
of water supply, or from any land or premises or
receptacle or reservoir attached or adjacent thereto,
any stagnant water which the Panchayat considers
as -injurious to health or offensive to the
neighbourhood;
178. Power of suspending execution of unlawful orders
or resolution.- (1) If in the opinion of the Director, the
execution of any order or resolution of a Panchayat or Zilla
Panchayat or any order of any authority or officer of the
Panchayat or the Zilla Panchayat or the doing of anything
which is about to be done, or is being done, by or on behalf
of a Panchayat or a Zilla Panchayat is unjust, unlawful or
improper or is causing or is likely to cause injury or
annoyance to the public or to lead to a breach of peace,
he may by order suspend the execution or prohibit the
doing thereof.
(2) When the Director makes an order under sub-section
(1), he shall forthwith forward to the Government and the
Panchayat or Zilla Panchayat affected thereby a copy of
the order with a statement of the reasons for making it, and
the Government may confirm or rescind the order or direct
that it shall continue to be in force with or without
modification permanently or for such period as it thinks fit:
'VILLAGE PANCHAYAT, CALANGUTE v. ADDITIONAL 2fH
DIRECTOR OF PANCHAYAT-11 [G.S. SINGHVI, J.]
Provided that no order of the Director passed under subA
section (1) shall be confirmed, revised or modified by the
Government without giving the Panchayat or the Zilla
Panchayat concerned a reasonable opportunity of showing
cause against the proposed order.
201. Appeals.- (1) Any person aggrieved by original
order of the Panchayat under section 76, 77, 84, 104 and
105 of the Act, may, within such period as may be
prescribed, appeal to the Director.
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(2) The Appellate Authority may, after giving an opportunity
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to the appellant to be heard and after such enquiry as it
deems fit, decide the appeal and its decision shall be final.
201-A. Appeal on miscellaneous matter dealt by the
Panchayats. -
(1) Where no appeal has been specifically
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provided in this Act on any miscellaneous matter 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
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decision on such appeal, subject to the provision of subsection (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
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from the receipt of application in his office.
(2) A revision shall lie to the Deputy Director against any
order passed by the Block Development Officer under
sub-section (1) within a period of thirty days from the date
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of the order.
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SCHEDULE - I
FUNCTIONS AND RESPONSIBILITIES OF VILLAGE
PANCHAYAT
I. General functions:
(1) Preparation of annual plans for the development of the
Panchayat area.
(7) Demolition of unauthorised construction.
VIII. Drinking water:
(1) Construction, repairs and maintenance of drinking
water well, tanks and ponds.
(2) Prevention and control of water pollution.
(3) Maintenance of rural water supply schemes."
16. The Preamble, Part IV and Part IX of the Constitution
must guide our understanding of the Panchayati Raj institutions
E and the role they play in the lives of the people in rural parts of
the country.