Gujarat High Court
Umedbhai Mahijibhai Gohil & 4 vs Collector on 25 September, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/17487/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17487 of 2017
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UMEDBHAI MAHIJIBHAI GOHIL & 4....Petitioner(s)
Versus
COLLECTOR, & 2....Respondent(s)
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Appearance:
MR ND SONGARA, ADVOCATE for the Petitioner(s) No. 1 - 5
MR VK SOLANKI, ADVOCATE for the Petitioner(s) No. 1 - 5
MR. AMIT BAROT, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 25/09/2017
ORAL ORDER
1. The present petition is filed by the petitioners under Article 226 of the Constitution of India as well as under the Gujarat Panchayat Act for the prayed for in the petition inter alia that appropriate writ, order or direction may be issued to quash and set aside the impugned notice dated 11.9.2017 produced at Annexure-A on the grounds stated in the petition.
2. Heard learned Advocate Shri N.D.Songara for the petitioners.
3. Learned Advocate Shri Songara has referred to the papers and submitted that the petitioners are occupying the land bearing Survey No.141 and there is no encroachment. For that he has Page 1 of 4 HC-NIC Page 1 of 4 Created On Sat Oct 07 06:20:10 IST 2017 C/SCA/17487/2017 ORDER referred to the record produced at Annexure-B collectively which appears to be the register of the city survey and has made a claim that they may not claim any title but they are in possession and the notice at Annexure-A may be set aside and / or stay may be granted.
4. Though learned Advocate Shri Songara has referred to the papers to suggest that the land in question bearing Survey No.141 is occupied by them, he is not able to justify any right, title, interest including even the possession. The notice which has been produced at Annexure-A qua all the petitioners clearly suggest that there is some encroachment made on the land bearing Survey No.141. Admittedly, no reply is placed on record. The claim is made that the petitioners are having the possession over the land which is a wada land. The record or the register (tapasani register) produced on record at page 17 clearly suggest that the respective petitioner is shown as occupant in column 4 and it bears city survey no.114, 115, 116, etc. respectively. The land bearing city survey no.141 is shown as gamtal. Meaning thereby it belongs to the panchayat or the government. The notice issued earlier under Section 37(2) of the Bombay Land Revenue Code read with District Municipal Act produced on record clearly suggest that as per the provisions of Section 37 of the Code, all the lands which Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Oct 07 06:20:10 IST 2017 C/SCA/17487/2017 ORDER are not the property of others belong to the government and therefore the person who is making a claim over the land has to establish by sufficient evidence. It appears that the notices were even and after the measurement of the respective area of their land occupied by the petitioners qau the respective city survey no. 114, 115, 116 etc. The unauthorized encroachment on city survey no. 141 is sought to be cleared. Therefore, though the petitioners are aware about the proceedings under Section 37(2) of the Code which has been decided in the year 1986 as reflected from page 29(A) has made an attempt to raise the issue again to make any claim which is not permissible. It has been declared as per the notice produced at page 29 that the land has been declared to be municipality / government in exercise of power under Section 37 of the Code. Therefore, the claim made by the petitioner without any basis or supporting evidence cannot be readily accepted. It is required to be stated that admittedly no reply to the notice has been placed on record and therefore when there is no justification or explanation the claim made over the land which is shown as gamtal land belonging to the municipality cannot be permitted to be encroached upon. Therefore, notice cannot be said to be erroneous which would call for any interference in exercise of discretionary jurisdiction under Article 226 of the Constitution of Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Oct 07 06:20:10 IST 2017 C/SCA/17487/2017 ORDER India. When the notice was given, the petitioner could have replied to the same. Moreover, City Case No. 18/1987 or respective cases as referred to in the petition have been decided and therefore now it is too late to raise any such contention or making any claim over the land which is declared to be a gamtal land.
5. The present petition therefore deserve to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) JNW Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Oct 07 06:20:10 IST 2017