2009 (3) TMI 1103

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....o. 178/12 of village Calangute. There is a house bearing no. E/5/91 standing in the same property. One Gabriel Fernandes i.e the present Petitioner and his wife and his cousin Joao Fernandes are occupying the said house. The petitioner has filed an application before the Mamlatdar claiming himself to be a mundkar of the said property. The said application is pending before the Mamlatdar. It is the contention of the owner of the suit property that during the pendency of the said proceedings before the Mamlatdar the 3present Petitioner Gabriel has made illegal construction. The owner i.e. the Respondent no. 4 herein made several complaints to the Panchayat in respect of the said illegal construction. In spite of the four complaints having bee....

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....ght to make any additional construction and change the nature of the property. The complainant i.e. the Respondent no. 4 had made the complaint that the Petitioner has carried out additional construction and Panchayat had not taken any cognizance of the complaints. It appears from the order of the Dy. Director that along with an application before the Mamlatdar in respect of the mundkarial house the Petitioner had attached a survey plan which plan shows the existence of only one house which has a house number bearing no. E/5/91. Obviously, when the application to declare mundkar under the Mundkar Act was made there was only one structure standing on the plot. It is in this background that the rest of the contentions of the Petitioner have t....

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....ore nothing wrong in the appointment of the Commissioner, to have a factual position before him. Such appointment cannot be said to have caused any prejudice to the Petitioner. Further, the Government Surveyor was appointed as a Commissioner who could be said to be acting independently. To my mind, if the proceedings before the Authority are judicial proceedings, inherent powers available under Section 151 of the C.P.C. could be said to be available to said Authority in order to do the justice between the parties. The Authority could make an appointment of Commissioner and have the factual position before it. Such an order could not be said to be perverse particularly when the Petitioner was contending that all structures were old and compl....

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....annot be called upon to prove a negative thing such as the construction is not legal. All the evidence with regard to construction being legal has to be in possession of the person making the construction. The Petitioner has not produced any evidence to prove that the construction besides A was carried out after obtaining the permission of the concerned Authorities. 9. Mr. Arun Bras de Sa, learned Counsel for the Petitioner contended that the exercise of power by the Dy. Director in the instant case was not in accordance with the scheme of the Act. He also submits that the complaint could have been forwarded by the Dy. Director to the Panchayats and he himself could not have taken the cognizance. This submission does not appear to be cor....