Gujarat High Court
Patel Madhavbhai Khimajibhai vs Balsara Gram Panchayat on 2 May, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/WPPIL/58/2018 ORDER DATED: 02/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 58 of 2018
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
In
R/WRIT PETITION (PIL) NO. 58 of 2018
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PATEL MADHAVBHAI KHIMAJIBHAI & 10 other(s)
Versus
BALSARA GRAM PANCHAYAT & 3 other(s)
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Appearance:
MS GAYATRIBA B JADEJA(5152) for the Applicant(s) No.
1,10,11,2,3,4,5,6,7,8,9
MS NILAM N CHAUHAN(6635) for the Applicant(s) No.
1,10,11,2,3,4,5,6,7,8,9
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 2
MR HS MUNSHAW(495) for the Opponent(s) No. 1,3,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 02/05/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Petitioners who are the agriculturist and residents of Balsara Village, Taluka : Tharad, District Balsara, have approached this Court under Articles 226 and 227 of the Constitution of India challenging the inaction on the part of the respondent authorities, alleging they have failed in performing their duties namely respondents have failed to remove the encroachments from the Village limits of Balsara. It is Page 1 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 contended that there is a deficiency of adequate grazing land for the cattle of the village and as a consequence of encroachment of 'Gauchar' land, the business of animal husbandry in the village is affected. Averments made in the petition would also disclose that there are countless encroachments on public road, streets and thereby it is causing great hurdle to the public who are using the same. Petitioners are said to have made series of representations to all the respondent authorities in vain and on account of respondent authorities having not taken any action to remove the encroachment, this Public Interest Litigation has been filed seeking for issuance of a writ of mandamus to the respondents to remove illegal encroachments over the village land.
2. We have heard Ms. Neelam Chauhan, learned counsel appearing for the petitioners and Mr. K.M. Antani, learned Assistant Government Pleader appearing for respondent 2 and Mr. H. S. Munshaw, learned counsel appearing for respondents 1, 3 and 4. Perused the case papers.
3. Petitioners who are the villagers and are residing at Village Balsara have their cattle and their cattle are dependent Page 2 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 for grazing on 'Gauchar' lands available. However, on account of said 'Gauchar' lands in the village having been indiscriminately encroached upon by third parties, as a consequence of it, the extent of land available to the village cattle for grazing has got reduced. Hence, espousing their cause, petitioners have submitted representations to various authorities including the respondents herein seeking for removal of said encroachments, which ultimately culminated in submitting a compliant on 07.09.2016 (Annexure-'G') by the present petitioners to the Taluka Development Officer. 3.1. It is the grievance of the petitioners that respondent authorities were in knowledge of the illegal encroachment over the Government land, but nothing was done for almost two years and the respondent authorities have not taken steps for removal of the encroachments over the Government land. Perusal of the records would disclose that on 22.02.2016, the Taluka Development Officer has forwarded a communication to Mamlatdar calling upon the said authority to remove the encroachment from the village limit of Balsara. The Revenue Department of the State of Gujarat has intimated Collector, Banas Kantha about the encroachments in the Village Balsara Page 3 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 and has also intimated the said authority about the complaint made by the petitioner and the Revenue Department and has requested the Collector to take immediate action upon petitioners complaint and inform the petitioners about the steps taken in respect of said the complaint. Neither the petitioners have been informed of the outcome of their complaint nor any material is placed by the respondent authorities to establish as to the action taken by the concerned on the complaint lodged by the petitioners. In fact, on 12.05.2016 (Annexure-D), Mamlatdar
- Tharad has forwarded a communication to the Taluka Development Officer, informing the said authority about their being encroachment of 'Gauchar' land as well as Government land at Village Balsara. Again on 30.06.2016 (Annexure-E) the Revenue Department has forwarded a communication to the Collector, Banas Kantha about the countless applications and complaints received from the villagers about illegal encroachments over the Government land and has requested the Collector to redress the grievance of the villagers at the earliest. This is said to have triggered the Revenue Department to intimate the District Development Officer, Banas Kantha on 02.07.2016 (Annexure-F) where-under the grievances of the Page 4 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 petitioners have been highlighted. On account of their being inaction on the part of District Development Officer, Banas Kantha, by not acting upon the communications received from the Revenue Department and the said inaction being in violation of the Gujarat Panchayats Act, 1993, the present petitioners are said to have submitted a complaint on 07.09.2016 to the Taluka Development Officer vide Annexure-G. In fact, the records on hand would also disclose that concerned encroachment Division of District Panchayat has also acknowledged on 30.07.2016 (Annexure-H) about there being encroachment and yet the concerned have not taken steps by virtue of the complaint lodged by the petitioners.
3.2. Gram Panchayat, Balsara is said to have forwarded a communication to District Land Record Inspector on 04.08.2016 intimating thereunder about several encroachments that have taken place and the DILR having selectively measured certain properties or in other words, conducted survey in respect of only few properties and failed to conduct measurement and inspection of the roads, main roads, internal roads, resulting in true picture being suppressed. It is alleged that the Department Page 5 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 of Land Records has not conducted measurement till date. 3.3. The sum and substance of the grievance of the petitioners coupled with the thrust of the arguments canvassed by the learned counsel appearing for the petitioners is to the effect that none of the authorities have taken due care to see that the encroachment which has been highlighted in representations/ complaints are redressed and/or removed by respondents which would ensure better utilization of the public road and contending that each of the authorities are trying to shift their responsibilities to the other departments and thereby, they have filed to perform their statutory duty. Hence, it is contended that petitioners are perforced to approach this Court by the present Public Interest Litigation seeking for the following prayers :-
"12(A) To direct respondent Balsara Gram Panchayat to remove illegal encroachment within the territory boundary of the Balsara village under Section 105 of the Gujarat Panchayats Act, 1993;
(B) to direct the respondent Taluka Development Officer to initiate the proceedings for the removal of encroachment within the territorial limits of the Balsara village as per Section 105 of the Gujarat Panchayats Act, 1993."
4. On respondents being notified, they have filed their Page 6 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 affidavit-in-reply. The first respondent, in its affidavit of reply dated 14.05.2018, has clearly stated or admitted that there are certain encroachments in new Gamtal area of Village Balsara Gram Panchayat. Hence, it is said to have forwarded an application to the District Inspector of land Records at Palanpur for measurement of the land in order to ascertain the exact extent of encroachment and fee of Rs.2,400/- is said to have been deposited on 29.04.2014 (Annexure-B to the affidavit dated 14.05.2018). The first respondent has stated that DILR has not undertaken the measurement and survey work and as such it has become difficult for the first respondent to initiate action against encroachers under Section 105 of the Gujarat Panchayats Act, 1993. The respondent no. 1 has also deposed under the aforesaid reply affidavit that necessary action would be taken against the encroachers. Thus, first respondent is attempting to stave off its responsibilities by shifting the burden on DILR contending inter alia that after having addressed the communication on 24.09.2014, it ceases to discharge its responsibility. At this juncture itself, we find it apt and appropriate to note that Gram Panchayat which is the custodian of the property of the State at Panchayat level, has allowed its Page 7 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 property to be dissipated or in other words allowed to be encroached upon by third parties and yet it is keeping mum. This inaction on the part of the Talati of the Gram Panchayat requires to be deprecated. The State which is vested with the power under Section 253 of the Gram Panchayats Act, 1993 also seems to have turned Nelsons eye. Section 253 empowers the State that in the event of a Gram Panchayat either exceeding or abusing its powers or is incompetent to perform or makes persistent default in performance of the duties imposed on it or functions entrusted to it under any of the provisions of his Act or under any other law for the time being in force and fails to obey an order made under this Act by the panchayat superior or by the State Government or by any officer authorized by it, the State Government is empowered to dissolve such panchayat or supersede such Panchayat for the specified period in the order subject to giving such Panchayat an opportunity of rendering an explanation. This observation has been made on account of the affidavit of the second respondent, Mamlatdar of Tharad Taluka, District Banas Kantha dated 17.02.2022 admitting that the lands in the Gram Panchayat area would vests in the Panchayat under Section 108 Page 8 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 of the Gujarat Panchayats Act, 1993 and the panchnama dated 16.02.2022 disclosing that four encroachments in the three survey numbers being evident from the said panchnama. Having undertaken to remove the encroachments within a period of two weeks and also having undertaken to place on record a report of such encroachments having been removed, yet it has not seen the light of the day. It is this undertaking, obviously resulted in the following order being passed by this Court on 02.05.2019 :-
"By the next date of hearing, joint report be submitted by respective Gram Panchayat, Taluka Panchayat, and District Inspector Land Records about extent of alleged encroachment on Gamtal, Veda land and part of Government and Guachar land by the private respondents. It is made clear that technical procedure is required to be undertaken by DILR by deputing a qualified Inspector."
5. In the affidavit-in-sur-rejoinder filed on behalf of the first respondent dated 22.11.2019, it is deposed that there are 61 encroachers (Annexure-A). A communication dated 20.11.2019 has been addressed to the Mamlatdar. In fact, he goes to the extent of contending that there are no 'Gauchar' land available with Gram Panchayat at present. The communications addressed by the Gram Panchayat to DILR, Palanpur on 26.06.2015, 04.08.2016, 23.11.2016, 14.07.2017 and 20.11.2019 has been in vain. In fact, the District Development Page 9 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 Officer, Banas Kantha, District Panchayat through Chitnis - cum
- Taluka Development Officer (Encroachment) by communication dated 18.11.2019 (Annexure-B to the affidavit dated 22.11.2019) has informed the Taluka Development Officer, Tharad Taluka Panchayat to take necessary action against the encroachers. This also seems to have not been taken to its logical end.
5.1. The sum and substance of the aforesatated facts would clearly unravel the truth of 'Gauchar' land and public roads, having been encroached and the authorities instead of taking action against such encroachers are attempting to shift the blame on other departments. In other words, the pot is calling the kettle black. The financial stringency is one ground which has been pleaded by the Gram Panchayat namely, being unable to deposit the huge amounts claimed by the DILR for undertaking the survey work. Be that as it may. The fact that the revenue records stands in the name of the Government is evident from the communication dated 16.09.2021 itself and the statement made on oath by all the respondents unequivocally suggest that the lands falling within the jurisdiction of village Balsara namely 'Gauchar' lands as well as public roads having Page 10 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022 C/WPPIL/58/2018 ORDER DATED: 02/05/2022 been encroached upon and there has been complete inaction on the part of the respondent authorities in not taking any steps for removal of such encroachments.
6. For the reasons aforestated, we proceed to pass the following :ORDER :
(i) A writ of mandamus is issued to the respondents to undertake the exercise of completing the survey, even if any, within a period of four (4) weeks from today and the District Development Officer - respondent 4 shall remove all such encroachments after identifying the same within eight (8) weeks from the date of receipt of such report by taking action in accordance with law.
(ii) Costs made easy.
(iii) Civil Application 1 of 2021 does not survive for consideration, stands rejected.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) phalguni Page 11 of 11 Downloaded on : Fri May 06 20:21:10 IST 2022