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SC writ: Panchayats can question govt in HC

-The Times of India

PANAJI: In a recent significant judgment, the Supreme Court has held that the state's panchayats have the right to challenge government authority decisions before the high court, as the grassroots-level bodies represent the will of the people.

The apex court verdict thus overruled the high court of Bombay at Goa's judgment which had declined relief to the Calangute panchayat.

The panchayat had questioned before the high court an order of the additional director of panchyats. The government authority had favoured a hotel company allegedly involved in the illegal construction of a wall blocking public access to a well and a chapel.

In August 2010, the high court ordered that the panchayat cannot be allowed to challenge the decision of the additional director of panchayats as it would certainly amount to insubordination and subversion of administrative discipline.

In 2009, the Calangute panchayat had issued notices to Kay Jay Constructions Company Pvt Ltd and had directed it to stop further construction of the wall.

Local residents had complained against the illegal construction and the panchyat had passed separate resolutions for revocation of occupancy certificate and permission.

In February 2010, the additional director of panchayats directed the Calangute panchyat to reconsider the application made by the company for grant of permission to use the property for running a guesthouse. The panchyat's petition challenging the additional director's order was subsequently rejected by the high court. The panchayat then filed an appeal before the Supreme Court in 2011.

During the hearing in the Supreme Court, senior counsel Shyam Divan appearing for the panchayat argued that the illegal construction has the effect of preventing the public from having access to the well and the chapel.

He further stated that the appellant being a representative body of the people of the village, it had the right to question the orders passed by the additional director of panchayats and the block development officer .

"It is thus evident that while the appellant and the sarpanch had exercised their respective powers in public interest, respondent No. 1 (additional director of panchayats) nullified that exercise because he felt that the resolution/action was contrary to law and was unjustified," a division bench of Justices G S Singhvi and Sudhansu Jyoti Mukhopadhaya observed.

The bench stated that it is reasonable to infer that the additional director of panchayats had exercised powers under Section 178 (1) of the Goa Panchayat Raj Act, 1994.

But 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 confirmation, the officer concerned suo motu-annulled the resolutions and the notice by assuming that he had the power to do so, the Supreme Court observed.

It further held that while exercising the power under the Goa Panchayat Raj Act, 1994, the panchayat was not acting as a subordinate to the additional director of panchayats 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 had the locus to challenge the orders passed by additional director of panchayats and the high court was clearly in error in holding that the writ petition filed by the panchayat was not maintainable, the court said.

The Supreme Court has directed the high court to decide the writ petitions on merits and has allowed the panchayat to file an application to apply for interim relief before the high court.