Writ petition challenging the dismissal of an amendment application seeking to incorporate a subsequent order confirming a suspended Panchayat resolution. Held, amendment barred by limitation.
Writ petition dismissed; power to amend was not exercised due to limitation bar.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 28 OF 2014
Mrs. Mariala Fernandes, Major of age, resident of House No. 27, Pockwado, Betalbatim, Salcete, Goa. … Petitioner.
V/s
Mr. V. Parsekar, Advocate for the petitioner.
Ms. S. Linhares, Additional Government Advocate for respondent no.1.
Mr. B. Rodrigues, Advocate for respondents no. 2 and 3.
CORAM :- U. V. BAKRE, J.
Reserved on : 29th January, 2014.
Pronounced on : 27th February, 2014.
JUDGMENT :
Heard Mr. Parsekar, learned Counsel appearing on
behalf of the petitioner, Mr. Rodrigues, learned Counsel appearing on behalf of respondents no. 2 and 3 and Ms. Linhares, learned Additional Government Advocate appearing on behalf respondent no. 1.
2. Rule. Rule is made returnable forthwith. Learned Counsel for the respondents waive service of notice. By consent, heard forthwith.
3. By this petition, the petitioner has challenged the order dated 02/08/2013 passed by the learned Adhoc District Judge-2, FTC-II, South Goa at Margao in Civil Revision Application No. 34/2011.
4. Case of the petitioner in short is as follows :
The petitioner demolished the old house existing in the property bearing Survey No. 81/2011 at village Betalbatim originally occupied by her and Rosa Maria Ratos and constructed an entirely new house bearing House No. 26 exclusively at her costs and by obtaining all the necessary approvals from the concerned authorities. The Village Panchayat of Betalbatim had issued construction licence no. 85/56/1984-1985 and the
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construction plans were approved. The petitioner has been residing in the said house along with her family members continuously and uninterruptedly for the last 25 years and the house tax has been assessed by respondent no. 2 in her name and she is paying the same. The petitioner also pays the electricity bills, water bills, telephone bills, pertaining to the said house and also has ration card in respect of the said house. On 18/03/2010, the petitioner received a notice issued by respondent no. 2 stating that it has received a letter dated 27/02/2010 from respondent no. 3 regarding transfer of house tax of house no. 26 from the name of Rosa Maria Ratos to the name of the petitioner. Respondent no. 3 had raised objection to the assessment of house tax in the name of the petitioner. Respondent no. 3 does not have any right or interest to the said house and she has been residing in the house bearing Village Panchayat No. 27 at Betalbatim for the last many years. On 18/03/2010, the respondent no. 2 informed the petitioner about the said letter dated 27/02/2010 and asked the petitioner to submit documents, if any. On 25/03/2010, the petitioner filed reply along with documents before respondent no. 2 and respondent no. 2, after considering all the aspects, rejected the contention of respondent no. 3 and accordingly, issued to her a letter No. VP/BET/2010-11687 to that effect. On 22/03/2011, the petitioner received a letter from
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respondent no. 2 informing that respondent no. 3 has preferred an appeal to the respondent no. 1 aggrieved by the letter No. VP/BET/2010-11687. On 27/04/2011, the petitioner filed an application for intervention before the respondent no. 1 and respondent no. 3 filed reply objecting to the same. By order dated 22/08/2011, respondent no.1 rejected the said intervention application. The petitioner filed Writ Petition No. 656/2011 before this Court against the said order dated 22/08/2011 of respondent no.1. In the meantime, by order dated 18/10/2011, respondent no.1 allowed the petition filed by respondent no. 3. In view of the above, the petitioner withdrew the said writ petition and she was given liberty to avail of remedies available in law to challenge the said final order passed by respondent no. 1. Writ Petition No. 656/2011 was disposed of, accordingly, on 17/11/2011. On 09/12/2011, the petitioner filed Civil Revision Application No. 34/2011 before the learned District Court. During the pendency of the said Civil Revision Application, by order dated 28/12/2011, the Secretary of Panchayats, Government of Goa passed the order confirming the order dated 18/10/2011 passed by respondent no.1. Therefore, the petitioner filed an application for amendment before the learned Adhoc District Judge-2, in Civil Revision Application No. 34/2011, seeking to incorporate the said subsequent events. By order
dated 02/08/2013, the said application for amendment came to be dismissed. The said order dated 02/08/2013 is impugned in the present petition.
5. Mr. Parsekar, learned Counsel appearing on behalf of the petitioner, submitted that respondent no. 3, who was a party to Writ Petition No. 656/2011 ought to have informed the Secretary of Panchayats regarding the intervention application filed by the petitioner before the respondent no. 1 and regarding the order passed by this Court in the said Writ Petition No. 656/2011. He submitted that the petitioner was not a party to the proceedings before respondent no.1 as also in the proceedings before the Secretary of Panchayats and that those orders were passed behind the back of the petitioner. He submitted that unless the order of the Secretary of the Panchayats is challenged, Civil Revision Application would become infructuous and, therefore, in order to incorporate the said subsequent events for challenging the order passed by the Secretary of Panchayats, the said amendment application was filed. He submitted that though there is no specific provision for amendment in the Goa Panchayat Raj Act, 1994 (the Act, for short) however, by doctrine of implied powers, the learned Adhoc District Judge-2 ought to have allowed the said amendment application. He submitted that
since the Act enables a party to file revision, it only means that the applicant can amend the said revision application also. He submitted that since the said amendment application was to incorporate subsequent events, the District Court ought to have allowed the same. He relied upon the order dated 11/09/2012 of this Court passed in Writ Petitions No. 302/2010, 300/2010, 3, 409 and 435/2011. He also relied upon the judgment of this Court in the case of “Claudio Michael D'Souza Vs. Secretary (Panchayats), Government of Goa and others” , [2010 (5) Bom. C. R. 93]. The learned Counsel also relied upon the judgment of the Apex Court in the case of “ State of Madhya Pradesh Vs. Union of India” , [(2011)12 SCC 268].
6. Mr. Rodrigues, learned Counsel appearing on behalf of the respondents no. 2 and 3, on the other hand, submitted that the order passed by the respondent no. 1 was under section 178(1) of the Act and he had forwarded the said order to the Secretary Panchayats, Government of Goa, in terms of sub-section 2. According to the learned Counsel, the petitioner ought to have known about the same since that was the statutory procedure. He further submitted that the order of Secretary Panchayats was also revisable under Section 201-B of the Act and hence, the petitioner should have filed a separate Revision Application against the
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order of Secretary Panchayats. Learned Counsel submitted that there being no provision for amendment of the revision application which became infructuous, the learned District Court rightly rejected the amendment application. Learned Counsel further submitted that the application for amendment is otherwise barred by limitation since the same was not filed within 30 days from the date of the order of Secretary Panchayats and even within 30 days from the date of knowledge of the said order.
7. I have gone through the material on record and have considered the submissions made on behalf of the parties. I have also considered the Judgments cited by the learned Counsel for the petitioner.
8. In the present case, resolution no. 12 dated 25/01/1985 passed by respondent no. 2, which resolved to transfer the house tax in respect of house no. 26 standing in the name of Rosa Maria Ratos to the name of the petitioner, was challenged before respondent no. 1 under section 178 of the Act. In that Panchayat Petition No. Mar-I/71/2010, the petitioner had filed the Intervention Application dated 27/04/2011. By order dated 22/08/2011, respondent no.1 dismissed the said application for intervention due to which the petitioner filed Writ Petition No.
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656/2011. It appears that during the pendency of the said writ petition, Section 201-B was introduced in the Act. Said Section 201-B of the Act provides as under :
“ S. 201-B. Revision .— (1) Save as otherwise provided in this Act, a revision shall lie against any order passed by any authority under this Act to the District Court within whose jurisdiction the subject matter of the dispute lies.
(4) Every such revision shall be decided as expeditiously as possible and endeavour shall be made to decide the same within a period of three months from the date on which it is filed. ”
9. Section 178 of the Act consists of two parts. Subsection (1) gives power to respondent no.1 to decide about the resolution of respondent no. 2, whereas sub-section (2) requires him to submit his decision to the Government for its orders. In the case of “Claudio Michael D'Souza” (supra), a learned Single Judge of this Court has held that a careful reading of sub-section
(2) of Section 178 of the Act would show that when the Director makes an order under sub-section (1) and this order can only be
of suspension, that he is required to forward to the Government copy of the order and then the Government may either confirm or rescind the order or direct it to continue to remain in force with or without modification permanently or temporarily. It has been held that in case an order or resolution of the Panchayat is not suspended, there is no question of the Government taking any further action even if the Government is informed of the dismissal of the application. In the present case, the respondent no. 1 had suspended the resolution no. 12 dated 25/01/1985 of the respondent no. 2. Thus, the respondent no. 1 had rightly forwarded the copy of the said order to the Secretary of Panchayats. The action of the Secretary of Panchayats in confirming the order of respondent no. 1 is therefore in accordance with the powers under sub-section (2) of Section 178 of the Act. Therefore, the petitioner has to assail the order of the Secretary of Panchayats and also the order of respondent no.1, since the order of the respondent no. 1 has merged into the order of the Secretary of Panchayats. Both these orders are revisable under Section 201-B of the Act.
10. During the pendency of the writ petition, respondent no.1 by order dated 18/10/2011 allowed the application filed by respondent no.3 and suspended the said resolution no.12 dated
25/01/1985 passed by the respondent no. 2 and submitted the proceedings to the Secretary Panchayats, under section 178(2) of the Act, for doing further needful. Therefore, by order dated 17/11/2011 passed in the said Writ Petition No. 656/2011, the petition was dismissed as withdrawn with liberty to the petitioner to avail of remedies available in law. In view of Section 201-B of the Act, the petitioner filed Civil Revision Application No. 34/2011 before the District Judge, on 09/12/2011, thereby challenging the order dated 18/10/2011. In terms of Section 178(2) of the Act, respondent no.1 forwarded his order dated 18/10/2011 to the Secretary of Panchayats, Government of Goa and it appears that during the pendency of the Civil Revision Application No. 34/2011, the Secretary of Panchayats passed order dated 28/12/2011 thereby confirming the order dated 18/10/2011 passed by respondent no. 2. On account of the said subsequent events, the petitioner filed the application dated 04/10/2012 for amendment before the learned District Judge-2 (FTC-II). However, in terms of sub-section (2) of Section 201-B of the Act, the order of Secretary Panchayats had to be challenged within 30 days from the date of order. As on 09/12/2011, when the petitioner challenged the order dated 18/10/201, passed by the respondent no. 1, the petitioner very well knew that the respondent no. 1 had forwarded the said order to the Secretary
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Panchayats since this fact has been mentioned in the order dated 18/10/2011, itself. Therefore, as has been rightly contended by the learned Counsel appearing on behalf of the respondent no. 3, the petitioner ought to have shown diligence by finding out from the office of the Secretary Panchayats as to what happened to the said reference. Be that as it may, the petitioner herself has stated in the application dated 04/10/2012 for amendment that the respondent no. 3, upon being served of the revision application, has filed reply contending that the Court had no jurisdiction to entertain the Revision Application, at this stage, since the Secretary for Panchayats (Government of Goa) has already heard the parties in the matter and has passed the final order on 28/12/2011, thereby confirming the order dated 18/10/2011 of the respondent no. 1. This reply (Preliminary objections) was filed by the respondent no. 3 before the respondent no. 1 on 01/02/2012. Thus, at least on 01/02/2012, the petitioner, for sure, knew that the Secretary Panchayats has already confirmed the order dated 18/10/2011. But, the application for amendment of the Revision Application was filed by the petitioner before the learned District Judge-2 on 04/10/2012, which is after more than eight months from the date of alleged knowledge of the order of the Secretary of Panchayats. Hence the application for amendment was hopelessly barred by the Law of Limitation, since it had to be filed
within 30 days. There is absolutely no justification given for such inordinate delay in filing the application for amendment. In the case of “Revajeetu Builders and Developers Vs. Narayanswamy and others” [(2009) 10 SCC 84], the Hon'ble Supreme Court has held that as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
11. There is no doubt that in the Act, there is no specific provision for amendment of the applications. However, learned Counsel appearing on behalf of the petitioner has submitted that power to permit amendments of the pleadings must be considered as incidental and ancillary to the power to decide the application according to law, so that justice is done between the parties. He has relied upon the order dated 11/09/2012, passed in Writ Petitions No. 302 and 300 of 2010, 3, 409 and 435 of 2011, a Division Bench of this Court, of which I was one of the members. Since the application for amendment was hopelessly barred by limitation, I am not inclined to go into the aspect of implied powers.
12. In the case of “ State of M.P. ” (supra), the Supreme Court has observed that liberal approach should be the general
rule particularly in cases where other side can be compensated with costs. It has been observed that normally amendments are allowed in pleadings to avoid multiplicity of litigations. It has been held that an amendment that would introduce a totally different, new and inconsistent case, cannot be allowed. The above case does not consider the situation where the application for amendment is filed beyond the period of limitation. Hence the same is not applicable to the present case.
13. Considering all the aspects of the case, in my view, the impugned judgment dismissing the application for amendment of the memo of Revision, is neither arbitrary nor illegal. The impugned order does not call for interference of this Court in exercise of jurisdiction under Article 227 of the Constitution.
14. In the result, the petition is dismissed.
U. V. BAKRE, J.
SMA
3 issues framed by the court
Whether the District Court was justified in dismissing the petitioner's amendment application to incorporate subsequent orders of the Secretary of Panchayats.
Whether the amendment application was barred by limitation under Section 201-B of the Goa Panchayat Raj Act, 1994.
Whether the Writ Court should interfere under Article 227 on the ground of implied powers to amend revision applications.
Colour shows how this judgement treated each authority
Claudio Michael D'Souza Vs. Secretary (Panchayats), Government of Goa and othersReferred¶37
[2010 (5) Bom. C. R. 93] · Who else cites this
State of Madhya Pradesh Vs. Union of IndiaDistinguished¶37
[(2011)12 SCC 268] · Who else cites this
Revajeetu Builders and Developers Vs. Narayanswamy and othersRelied on¶49
[(2009) 10 SCC 84] · Who else cites this
2 provisions across 2 enactments
Mrs. Mariala Fernandes
Additional Director of Panchayat-I, having office at Margao
Village Panchayat of Betalbatim, Through the Village Panchayat Secretary
Mrs. Filomena Ratos
U. V. BAKRE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
