Gujarat High Court
Wind World India Ltd vs Shree Tebhada Gram Panchayat on 23 September, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/11976/2019 ORDER DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11976 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 11976 of 2019
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WIND WORLD INDIA LTD.
Versus
SHREE TEBHADA GRAM PANCHAYAT
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Appearance:
MR KUNAL VYAS for GANDHI LAW ASSOCIATES(12275) for the
Petitioner(s) No. 1,2
MR HRIDAY BUCH with MR CHINTAN S POPAT(5004) for the
Respondent(s) No. 1,2
MR DEVANG BHATT for MR HS MUNSHAW(495) for the Respondent No. 3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 23/09/2022
ORAL ORDER
1. By filing this petition, the petitioners have prayed to quash and set aside impugned notice dated 24.6.2019 given by respondent nos.1 and 2 to remove alleged encroachment on the land bearing Revenue Survey Nos.471, 264 and 188, Village-Tebhada on or before 14.7.2019, failing which, it is threatened that the respondents would remove the alleged encroachment at the cost of the petitioner-company. Vide representation dated 17.5.2019, the petitioner had asked for personal hearing, which was not given to the petitioner.
2. As per the facts of the case, the petitioner company was earlier known as Enercon India Ltd., and is now known as Wind World India Ltd. and the same is reflected in Certificate of Page 1 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 Change of Name dated 01.01.2013 issued by the Registrar of Companies. The issue in the present Petition pertains to lands bearing Revenue Survey Nos. 471 (Old Survey No. 243/2), 264 (Old Survey No. 105/2) and 188 (Old Survey No. 153/2) situated in village Tebhada, Taluka Lalpur, District Jamnagar (hereinafter referred to as the 'subject lands'). It is stated that 4 hectares out of the land bearing R.S. No. 431 (Old Survey No.243/1/1) and 4.5 hectares of land bearing R.S. No. 270 (Old Survey No. 105/1/2) being Government Waste Land was leased to Petitioner No.1 vide Final Allotment Order dated 16.07.2010 passed by Collector, Jamnagar for the purpose of installing, erecting and operating Wind Turbine Generators (WTGs). It is stated that petitioner no.1 was handed over possession of said land vide Possession Receipt dated 13.10.2010. The said lands were allotted for a term of 20 years at lease rent of Rs. 10,000/- per hectare.
2.1 It is stated that pursuant to the said allotment, name of the petitioner Company was mutated in the Revenue Records to record the factum of such land being allotted to it. It is stated that Ministry of Environment and Forests ("MoEF"), vide Allotment Order dated 06.03.2012, inter alia, allotted land bearing Revenue Survey No. 188 (Old Survey No. 153), Village Tebhada to the petitioner Company for installing, erecting and operating 4 Wind Turbine Generators (WTGs). By way of said Allotment Order, the petitioner company was also authorized and permitted to lay down electrical lines and road.
Page 2 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022C/SCA/11976/2019 ORDER DATED: 23/09/2022 2.2 It is stated that pursuant to the aforesaid allotment of lands, the petitioner company has installed and erected 3, 9 and 1 Windmills on R.S. Nos. 431, 270 and 188 respectively. It is stated that the cost of each Windmill including installation is about Rs.4.5 Crore. It is further stated that the petitioner company has also erected electricity poles on and around the said lands, which are necessary for transmission of electricity to sub-station and then to the State Electricity Board. Each windmill generates 2,79,000 KWH of electricity per day, which is sold to the Gujarat Electricity Board at an average rate of Rs. 4 per KWH.
2.3 It is stated that respondent No.1 Panchayat passed Resolution No.3 dated 14.02.2012, inter alia, granting its No Objection to the laying down of electrical lines (Towers or Poles) and other connected and ancillary purposes by the petitioner company for transmission of electricity on Government waste land or gauchar land. It is further recorded that the Panchayat shall not raise any objection to the same even in future.
2.4 It is further stated that thereafter, one Mr. Naranbhai Khimabha Gojia, the then Up-Sarpanch of respondent No.1 Gram Panchayat, filed Writ Petition (PIL) No.67 of 2012 before this Hon'ble Court, inter alia, alleging encroachment of the gauchar lands bearing Revenue Survey Nos.153/2, 105/2, 180/2 and 243 by the petitioner company. It is stated that the petitioner in the said petition failed to substantiate such allegations for over a period of two years and, therefore, said Page 3 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 petition was disposed of by this Hon'ble Court vide order dated 27.08.2014. It was recorded in the said order that though the PIL was filed in 2012, no Notice has been issued to the respondents, since the petitioner in the said petition had failed to produce sufficient and satisfactory materials to take cognizance of the grievances. Under such circumstances, said petition was disposed of reserving liberty for the petitioner to file a fresh petition if sufficient materials were gathered. It is stated that to the knowledge of the petitioner company, no such other petition has been filed.
2.5 It is stated that, thereafter, Mr. Murubhai Karabhai Gojia, the then Sarpanch of respondent No.1 Gram Panchayat, issued a letter dated 25.05.2015 on behalf of the Gram Panchayat, inter alia, undertaking not to disrupt the electrical lines etc. against consideration of Rs.3,50,000/- to be paid by the petitioners. It is stated that said amount was paid as per the directions of the Sarpanch and receipt thereof is acknowledged in letter dated 25.05.2015. It is stated that pursuant to such letter and the payment being made, petitioner No.1 herein and the then Sarpanch entered into a Samjuti Karar dated 25.05.2015, inter alia, recording that on receipt Rs.3,50,000/- from the petitioners, respondent No.1 Gram Panchayat would not cause any disturbance to the temporary road and disrupt the supply of electricity by the petitioner company through the electrical lines, poles and towers erected on Government waste lands and gauchar lands.
Page 4 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022C/SCA/11976/2019 ORDER DATED: 23/09/2022 2.6 It is stated that after erection of windmills and electricity poles in 2010 and 2012, the respondents never objected to the same. Respondent No.1 suddenly issued notice dated 01.11.2018 (Not received till date) to the petitioner company, inter alia, stating that on the basis of the information received by them and also physical inspection of lands, there appears to be encroachment on lands bearing R.S. Nos.471, 264 and 188. It was further stated that said notice was never served upon the petitioner company and that photographs thereof were sent to one of the officers of the petitioner on mobile phone. It is stated that, thereafter, officers of the petitioner company explained entire fact scenario to respondent No.1 and stated that there was no encroachment whatsoever by the petitioner company.
2.7 It is stated that, thereafter, the office bearers of respondent No.1 Gram Panchayat on 19.04.2019 and 22.04.2019 arrived at office premises of the petitioner company and by taking law into their hands, directed the officers of the petitioner company to shut the office. The officers of the petitioner company had also threatened that the wind mills would be forcibly shutdown. Under such circumstances, the officers of the petitioner company made applications dated 19.04.2019 and 22.04.2019 to the Police Sub-Inspector, Lalpur, to take cognizance of the penal offences committed by the Sarpanch, Shri Babubhai Desurbhai Dangar.
2.8 It is stated that even thereafter, the threats of the Sarpanch and other office bearers of the Gram Panchayat did Page 5 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 not stop and that illegal demands were raised and, therefore, the petitioner company was constrained to make representations dated 24.04.2019 to the authorities, requesting to initiate appropriate action against such anti- social elements, who have threatened the officers with their life and also to disrupt transmission of electricity to State Electricity Grid. The petitioner company was also required to issue a further representation dated 02.05.2019, inter alia, stating that the Sarpanch of the respondent Gram Panchayat along with other Panchayat Members, physically stopped 24 WTGs of the petitioner company on 27.04.2019 and that they remained shut till 29.04.2019, causing loss of generation of 1077 hours culminating into a financial loss of Rs.12,27,173/-.
2.9 It is stated that despite this, one Mr. Savdasbhai Boghabhai Dangar, Member of respondent No.1-Gram Panchayat alongwith other team members physically stopped running of 24 Wind Mills of the petitioner company by taking law into their hands and thereby causing loss to the petitioner company to the tune of Rs.12,27,173/- on account of such illegal stopping of wind mills for a period of 1077 hours. Therefore, the petitioner company was required to make representations dated 09.05.2019 to Deputy Collector, Taluka Development Officer, Mamlatdar and District Coliector, inter alia, submitting documents from 2010 onwards so as to show that the petitioner company was authorized to erect and install the wind milla and also to setup transmission poles and towers to transmit electricity as well as Government waste lands and gauchar lands for temporary road purpose.
Page 6 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022C/SCA/11976/2019 ORDER DATED: 23/09/2022 2.10 It is stated that thereafter, respondent No.3 issued a communication dated 13.05.2019 to respondent No.1 Gram Panchayat, inter alia, stating that the petitioner company has erected about 45 to 50 electricity poles on Revenue Survey No.471, 10 to 12 electricity poles on Revenue Survey No.264 and about 15 to 20 electricity poles and 1 wind mill on Revenue Survey No.188 (old Survey No.153/2). It is further stated that pursuant to the site visit conducted on 03.05.2019, the petitioner company was asked to produce the authorization for setting up electricity poles and wind mills till 13.05.2019, however, the company has not submitted any such authorizations. Respondent No.3 asked respondent No.1 Gram Panchayat to take appropriate action if unauthorized encroachment is established.
2.11 It is also stated that although said letter was not addressed / issued to the petitioner company, the office bearers of the respondent Gram Panchayat sent a copy thereof to the officer of petitioner company on mobile phone. Pursuant to receipt of such notice, the petitioner company made a representation dated 17.05.2019 to all concerned authorities including the respondents, thereby reiterating that the lands in question were allotted to the petitioner company and that the respondent Gram Panchayat had passed resolution authorizing the petitioner company to set up electricity poles and towers on Government Waste Lands and Gauchar lands and also to use said land for temporary road purpose. The petitioner company further pointed out that the Rojkam relied upon by respondent No.3 is ex-parte and carried out without any Page 7 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 intimation to the petitioner company. It was further pointed out that the petitioner company was not provided with the documents relied upon in the communication dated 13.05.2019. The petitioner company further requested for a personal hearing to be accorded and a joint survey / measurement of lands to be carried out. The petitioner company further requested respondent No.1 Gram Panchayat to withdraw Notice dated 01.11.2018.
2.12 It is stated that allegation of encroachment made against petitioner company is wholly untenable and false. The petitioner company has not put up any permanent construction on the lands in question and that it has only put up electricity poles pursuant to the express authorization granted by the respondent gram panchayat as well as the MoEF.
2.13 It is stated that, thereafter, respondent Nos.1 and 2 have passed the impugned order dated 24.06.2019 without according any opportunity of hearing, providing relevant documents and conducting joint survey / measurement, inter alia, holding that the petitioner company has encroached the gauchar lands of the Gram Panchayat. It is stated that the respondent Gram Panchayat has refused to acknowledge the validity of Resolution passed by the Gram Panchayat and the Samjuti Karar executed with the erstwhile Sarpanch. The Petitioner has been directed to remove the alleged encroachment on lands bearing Revenue Survey Nos.471, 264 and 188 on or before 14.07.2019, failing which, the respondents have threatened to remove such alleged Page 8 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 encroachment at the cost of the petitioner company. It is stated that the said order is wholly illegal and that the same has been passed in clear breach of the principles of natural justice.
3. Heard learned advocate, Mr.Kunal Vyas for Gandhi Law Associates for the petitioners, learned advocate Mr.Hriday Buch appearing with Mr.Chintan Popat for respondent nos.1 and 2 and learned advocate Mr.Devang Bhatt for Mr.H.S.Munshaw, learned advocate for respondent no.3 at length.
3.1 Mr.Kunal Vyas, learned advocate for Gandhi Law Associates for the petitioners submitted the same facts, which are narrated in the memo of the petitioner and submitted that the impugned Order is wholly illegal and is passed in clear breach of the principles of natural justice and is therefore, required to be quashed and set aside. He also submitted that the petitioner Company had, vide its representation dated 17.05.2019, specifically asked for personal hearing to be accorded to the petitioner company, however, no hearing has been provided to the petitioner company and the impugned prder has been passed straight away, in breach of principles of natural justice. He also submitted that the petitioner company had, vide its representation dated 17.05.2019, specifically asked for providing documents relied upon by the respondents, however, no documents such as the inspection report have been provided to the petitioner company and the impugned order is passed with a premeditated mindset. He also Page 9 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 submitted that the impugned Order is passed after a period of about 9 years from the date of allotment and setting up of windmills and transmission poles and towers and thus, the action is hopelessly delayed.
3.2 Mr.Vyas further submitted that the impugned order is passed without considering respondent Gram Panchayat's Resolution dated 14.02.2012, whereby the Gram Panchayat has expressly authorized and permitted the petitioner company to put electrical poles and towers as well as for temporary road purpose on the Government waste lands and gauchar lands. He also submitted that, as per the Final Allotment Order, the petitioner company is entitled to right of way to put up electrical poles and towers and therefore also, there is no encroachment by the petitioner company. He further submitted that the impugned order is passed without considering the Samjuti Karar executed between the erstwhile Sarpanch of the Respondent Gram Panchayat and the petitioner company and the fact that pursuant to such Agreement, the petitioner company had paid an amount of Rs. 3,50,000/- and in lieu thereof, the then Sarpanch on behalf of the respondent Gram Panchayat assured that the electrical lines, poles and towers would not be disrupted. The impugned Order does not consider the said Samjuti Karar or the factum of payment of consideration of Rs. 3,50,000/- on the ground that the payment is made in the Bank Account of the Sarpanch and not the Gram Panchayat. This observation of the Gram Panchayat is self-contradictory since the present Sarpanch had also demanded an amount of Rs. 75,000/- in his Bank Account Page 10 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 and the petitioner company was left with no alternative but to make such payment. He also submitted that the petitioner has invested an amount of Rs. 1.5 crore per WTG. The said WTGs are fully functional and are generating electricity, which is being used by the residents of Gujarat. He submitted that the investment made for 31 WTGs would turn dead wood if the respondents are permitted to act as per the impugned Order.
3.3 Mr.Vyas further submitted that there is no encroachment whatsoever by the petitioner company on the said land and the allegation of encroachment is completely false and misconceived. The allegation of the respondents, at best, pertains to installation of transmission towers/poles on the said land. It is submitted that by virtue of Final Allotment Order itself, the applicant is granted right of way to install transmission towers. It is submitted that without such right to install transmission towers being granted, the installation of the WTGs becomes futile because the generated energy can only be transmitted further through these transmission lines. The WTGs cannot supply electricity so generated without such transmission towers being installed. It is stated that by virtue of the impugned order, if the transmission towers installed on the said land are removed, all the WTGs connected to the transmission lines would not be able to function and transmit electricity to State Electricity Grid. It is pertinent to state that these WTGs generate about 2,79,000 KWH of electricity per day, which can cater to the needs of about 70,000 houses. He also submitted that the petitioner company would be losing revenue of approx. Rs. 12,00,000/- per day if the impugned Page 11 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 Order is permitted to be implemented and the transmission towers are removed. It is further submitted that the petitioner company is already under financial stress and that proceedings are pending against the petitioner before the Hon'ble National Company Law Tribunal, Ahmedabad Bench. It is submitted that the petitioner company presently has about 2000 employees and that if the company loses such huge revenues, it may not be possible for the company to sustain its operations and pay regular salaries to its employees. Moreover, the loss of revenue is also a loss to the public exchequer insofar as the petitioner has outstanding loans taken from public banks. He further submitted that all companies similarly situated as the applicant utilize the right of way for installation of the transmission towers and if the same is considered to be encroachment, all the WTGs set up by all such companies on Government / Gauchar lands in the State of Gujarat would have to be shut down. In view of above, he has prayed to allow present petition.
4. Learned advocate, Mr.Buch, for respondent nos.1 and 2 has submitted that opportunity of being heard was provided to the petitioner and the petitioner had filed its representation dated 2nd May 2019. He also submitted that after considering all the representations made by the petitioner, the impugned order was passed. He submitted that there is no violation of principles of natural justice and sufficient opportunity of being heard was provided to the petitioner. He also submitted that construction made by the petitioner is on gauchar land and, therefore, the Panchayat has passed the impugned order Page 12 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 directing the petitioner to remove the construction. Mr.Buch has referred to the provisions of Sections 242 and 249 of the Gujarat Panchayats Act and submitted that if the petitioner is aggrieved by the impugned order then it has to file revision before the State Government. According to him, alternative remedy is available to the petitioner and, therefore, the petition deserves to be dismissed only on this sole ground.
4.1 Mr.Buch further submitted that the petitioners relied upon a resolution of Panchayat permitting the petitioners to use the land in question, however, there was no such resolution passed by the Panchayat and no such resolution is found on the records of the Panchayat. He has also submitted that allegation of payment to the Panchayat is not supported by any evidence. Mr.Buch also submitted that the material placed on record by the petitioner shows that the cheque was issued in the name of Sarpanch and not in the name of the Panchayat, therefore, it is contrary to Section 110 of the Panchayat Act and such payment even if made is illegal as it is not made to the Panchayat but it is made to concerned Sarpanch in his personal capacity.
4.2 Mr.Buch also submitted that the Panchayat has given proper notice as per Rule 55 of the Gujarat Panchayat Rules, and the petitioner has made detailed representation. He has submitted that there is no prejudice caused to the petitioner as the panchayat has followed procedure as laid down in the Gujarat Panchayats Act as well as Rules framed thereunder. Mr.Buch has prayed to dismiss the petition. He has relied upon Page 13 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 the order passed by the Apex Court in Civil Appeal No.5153 of 2021 in the case of Rameshbhai Chaudhdary v. State of Gujarat and others dated 6.9.2021 for proposition that gauchar land can be used only for the purpose for which it is permitted to be used and if there is any contrary use, whether by the State or any other party, the same cannot go on.
5. Learned advocate Mr.Devang Bhatt appearing for Mr.H.S.Munshaw, learned advocate for respondent no.3 has adopted the arguments of learned advocate Mr.Buch for the Panchayat and submitted that appropriate opportunity has been given to the petitioner and the petition deserves to be dismissed.
6. In rejoinder, learned advocate Mr.Vyas for Gandhi Law Associates submitted that notice at page 72 and 73 are not in confirmity with Section 105 (2) read with Rule 55 (2) of the Rules. He has submitted that there is no mention as to providing personal hearing in respect of notice in question and, therefore, there is clear breach of Rule 55 (2) of the Rules. He has also referred to various representations and has submitted that since no personal hearing has been afforded, there is violation of principles of natural justice and, therefore, the petition may be allowed. He has relied upon the decision of the Apex court in the case of Whirlpool Corporation v. Registrar, Trade Marks, Mumbai and Others reported in (1998) 8 SCC 1. He has also relied upon another decision of the Apex Court in the case of State of U.P. v. Sudhir Kumar Singh and Others reported in AIR 2020 SC 5251, wherein it is observed as under:-
Page 14 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022C/SCA/11976/2019 ORDER DATED: 23/09/2022 "39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given.
We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason--perhaps because the evidence against the individual is thought to be utterly compelling--it is felt that a fair hearing "would make no difference"--meaning that a hearing would not change the ultimate conclusion reached by the decision- maker--then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578], who said that: (WLR p. 1595) "... A breach of procedure ... cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain." Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582] that: (WLR p. 593). "... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing." In such situations, fair procedures appear to serve no purpose since the "right" result can be secured without according such treatment to the individual.
Page 15 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022C/SCA/11976/2019 ORDER DATED: 23/09/2022
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing."
7. Having heard learned advocates for the parties and considering the material placed on record and decisions cited at bar, first point raised by the respondent is regarding maintainability of the petition as there is alternative remedy of filing revision before the State is available. In this regard, learned advocate for the petitioners has relied upon the decision in the case of Whirlpool Corporation (supra), wherein the Apex Court has observed as under:-
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition.Page 16 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022
C/SCA/11976/2019 ORDER DATED: 23/09/2022 But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of fornices whirlpool we would rely or some old decisions of the evolutionary era of the constitutional law as they still hold the field.
16. Rashid Ahmad vs. Municipal Board, kairana, AIR 1960 SC 163, laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S.Rashid & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy esisted, it would be a sound exercise of discreation to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Page 17 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 Writ Petition under Article 226 could still be entertained in exceptional circumstances.
17. A specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh 1958 SCR 595 = AIR 1958 SC 86, as under :
"But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
18. This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs. Bombay vs Ramchand Sobhraj Wadhwani & Anr. AIR 1961 SC 1506 and was affirmed and followed in the following words:
"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual Page 18 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".
8. Ultimately, in paragraph 20, it has been observed by the Apex Court that the law as to jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, inspite of alternative or statutory remedies, is not affected, specially in a case where authority against whom the writ is filed is shown to have had no jurisdiction or had purported to have usurped jurisdiction without any legal foundation.
9. Now, considering the facts of the present case, it reveals that there is no dispute regarding the fact that certain lands were granted to the petitioners. It also reveals from the pleadings of the petitioners that some temporary construction like a pole has been erected in the land in question, which was earlier granted by the Panchayat by passing a resolution. The stand of the petitioners is also to the effect that there was a Samjuti Karar between the petitioners, panchayat and the company, whereby certain amount has been paid to the Sarpanch. Against this, the stand of the Panchayat is that no such amount has been paid to the Panchayat. The controversy is with regard to giving appropriate opportunity of being heard to the petitioner before removal of alleged encroachment over Page 19 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 the gauchar land. It reveals from record that Panchayat has issued notice to the petitioner and the petitioner has replied to it. It is pertinent to note that the Gujarat Panchayats Act provides for removal of encroachment and what action could be initiated by the Panchayat. It is worthwhile to refer to the provisions of Sections 104 and 105 of the Gujarat Panchayats Act and Rule 55 of the Panchayat (Procedure) Rules, 1997. Relevant provisions in this regard are reproduced hereunder:-
"104.Control on erection of buildings.- ............ (5) Without prejudice to the penalty prescribed in sub- section (4) the panchayat may--
(a) direct that the erection or re-erection be stopped,
(b) by written notice require such erection or re-erection to be altered or demolished, as it may deem necessary, and, if the requirement under clause (b) is not complied with within the time fixed in the notice, the panchayat may cause the alteration or demolition to be carried out by its officers and all the expenses incurred by the panchayat therefor, shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter X. Provided that when a notice for bringing any action against any direction for the alternation or demolition of any erection or re-erection issued under this sub-section has been given under sub-section (2) of section 270, alteration or demolition shall not be caused to be carried out until the expiry of the period of such notice and a further period of seven days.Page 20 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022
C/SCA/11976/2019 ORDER DATED: 23/09/2022 (6) Nothing contained in this section shall apply to any building which is used or required for public service or for any public purpose, and if the property of the State or Central Government or any local authority, or is to be erected or re-erected by the State or Central Government or local authority but reasonable notice of the proposed construction shall be caused to be given to the panchayat, and the objections or suggestions of the panchayat, if any, shall be considered."
"105. Obstruction and encroachment upon public streets and open sites.
................
(2) The panchayat may remove any such obstruction or encroachment and remove any crop unaurhorised cultivated, on grazing land or any other land not being private property, and may remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the panchayat or not:
Provided that if the site be vested in the State Government, the permission of the Collector or any officer authorised by him in this behalf, shall have first been obtained the expenses of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable under Chapter X:Page 21 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022
C/SCA/11976/2019 ORDER DATED: 23/09/2022 Provided further that when before the removal of any such encroachment or projection a notice for bringing action in that behalf has been given under sab-section (2) of section 270, no action for the removal of the encroachment or projection shall be taken until the expiry of the period of such notice and further period of seven days."
RULE-55 of the Panchayat (Procedure) Rules, 1997:-
"55. Procedure for taking action under sub-section (5) of section 104 or sub-section (2) of section
105. (1) Before taking action under sub-section (5) of section 104 in respect of its clause 9b) (alteration or demolition of erection of re-erection) or before taking action mentioned in sub-section (2) of section 105 (removal of obstruction or encroachment etx.) the person against whom the action is proposed shall by given seven clear days notice to show cause why the proposed action should not be taken giving details of actions desired to be taken by such person, failing which the action proposed (details to be given in the notice) shall be taken by the panchayat.
(2) Such notice shall clearly mention last date of his reply in writing to be delivered to the Panchayat and also the date, time and place where he will be given a personal hearing before the panchayat meeting. (3) The panchayat shall after considering the written Page 22 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022 C/SCA/11976/2019 ORDER DATED: 23/09/2022 reply and personal hearing, decide the action to be taken by a resolution at such meeting and a copy of the same shall be served upon the person concerned with notice to comply accordingly within seven days, failing which decision of the panchayat shall be implemented at his cost and risk.
(4) The panchayat shall after the expiry of seven days from the date of service of such notice under sub-rule (3), take action as per sub-section (5) of section 104 or sub-section (2) of section 105, as the case may be. (5) Notice under sub-rule (1) and (3) shall be served, personally to the person concerned or any adult member of his family residing with him or by affixing at his residence or place of business or by post by Registered letter A.D, if he resides out of the village panchayat area."
10. In view of aforesaid provisions, Panchayat has every right of action for removal of obstruction or demolition of any erection after giving proper notice to the other side. As per Rule 55, it is the requirement of law that such notice shall clearly mention last date of reply by the other side in writing to be delivered to the Panchayat, and also date, time and place where such person will be given personal hearing before the panchayat meeting. Thus, as per Rule 55, personal hearing is sine qua non before any decision is taken against the person concerned by the Panchayat.
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11. On perusal of the material placed on record, it clearly transpires that the Panchayat has issued notice to the petitioners herein and the petitioners has replied to it and also sought for personal hearing. However, it appears that the impugned notice is lacking in respect of granting opportunity of personal hearing. Thus, requirement of personal hearing as envisaged under Rule 55 of the Panchayat (Procedure) Rules, 1997 is not fulfilled in this matter. Under these circumstances, the grievance raised by the petitioners that no proper opportunity of hearing was provided to it, is acceptable. Therefore, only on this ground, the petition deserves to be allowed. If any adverse order is passed after such hearing, the petitioners can always approach appropriate authority as envisaged under the Panchayats Act itself, which is alternative remedy available to it by way of appeal to District Panchayat as well as revision before the Government.
12. In view of above, present petition is allowed. Impugned order dated 24.6.2019 is hereby quashed and set aside only on the ground that no opportunity of personal hearing was given to the petitioners. It is open to the respondent to take appropriate action against the petitioners after following due process of law, as envisaged in Rule 55 of the Panchayat (Procedure) Rules, 1997. No order as to costs. In view of above order, Civil Application No.1 of 2021 do not survive for any order and the same is disposed of accordingly.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 24 of 24 Downloaded on : Fri Sep 23 21:39:25 IST 2022