Gujarat High Court
Patel Prahladbhai Mohandas & vs Raval Vishnubhai Bhalabhai & ... on 19 September, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/MCA/2611/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 2611 of 2014
In WRIT PETITION (PIL) NO. 191 of 2011
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PATEL PRAHLADBHAI MOHANDAS & 1....Applicant(s)
Versus
RAVAL VISHNUBHAI BHALABHAI & 5....Opponent(s)
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Appearance:
MR BHARAT T RAO, ADVOCATE for the Applicant(s) No. 1 - 2
MR.PARTH BHATT, ASSTT.GOVERNMENT PLEADER for the Opponent(s) No. 2
MR HS MUNSHAW, ADVOCATE for the Opponent(s) No. 6
MR RAJESH K SHAH, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/09/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The applicants, the original respondent Nos. 7 and 8, have filed this application for recall, review/modify our order dated 28th August, 2014 , passed in W.P (PIL) No. 191 of 2011. The said writpetition was filed by the opponent No.1 herein. He had complained about illegal construction of a temple on gaucher land. He had prayed for removal of such illegal construction.
After taking into account the materials on record, and in particular the reply filed by the Taluka Development Officer, Kadi, admitting to the construction of a temple in the land in question, which is a gaucher land, we gave suitable directions. The relevant portion of the order reads as Page 1 of 3 C/MCA/2611/2014 ORDER under: "4. Few disturbing aspects emerge from the materials on record. Right under the nose of the Gram Panchayat, the private individuals have unauthorisedly and without any permission whatsoever carried out the construction of the area covering as much as 2282 sq. mtrs. which is a sizeable area. Such construction goes unopposed and unabated for years together. The Panchayat perhaps, considering that building being in the nature of religious place, feebly opposed the continuation of construction by merely recording the encroachment and, thereafter, issuing notices, but doing little else. The Taluka Panchayat authority when nudged by the petitioner and the notice of this Court, it admitted that the Gauchar land is illegally encroached, that the construction is being carried out, that such construction is wholly unauthorised and, therefore, illegal, pressed in service the code of conduct for being unable to take any further steps. Though we do not propose to make any final opinion on this last aspect of the matter, since the code of conduct now no longer operates, we cannot help, but wonder whether the Government authorities are rendered powerless to act against the illegal construction and encroachment by issuance of notification of code of conduct, when on the other hand the private individuals could breach the law with impunity. Surely no legal system brings about such a situation. Now that the code of conduct has been lifted, we expect the Gram Panchayat to proceed full stream in taking action against the encroachers of the Gauchar land and to ensure that the illegal construction is removed as early as possible, ofcourse, after following the due process of law. This shall be completed latest by 30.11.2014. The Taluka Panchayat shall ensure that the Village Panchayat does not fail in its duties of carrying out these directions.
5. We notice that the Gram Panchayat though served has remained exparte. We would only remind the Sarpanch of the village of the provisions contained in section 57(1) of the Gujarat Panchayat Act, 1993, that the act of persistent default in performing the duties and functions under the said Act is one of the grounds for removal of Sarpanch of the village.
6. With these observations and directions, the petition is disposed of."
2. In this application, the applicants raise mainly two contentions. Firstly, that the writpetitioner himself was an encroacher and his encroachment was removed by the Panchayat, and therefore, he had filed the public interest litigation with vendetta. Secondly, the temple in question is an old structure in existence since more than 60 years, and the people of the village have religious sentiments attached to this temple, and the construction therefore, may not be pulled down.
Page 2 of 3 C/MCA/2611/2014 ORDER3. In our opinion, neither of the two contentions are sufficient to recall, review or modify our order dated 28th August, 2014. Firstly, even if the petitioner's intentions were not hundred percent clear in the writpetition, which is in the nature of a public interest litigation, we could have suomotu pursued further if it was found that certain important legal aspects emerged. Secondly, in so far as the construction is concerned, admittedly it is on a gaucher land. Admittedly, it is unauthorized. Even the contentions of the applicants that the temple is in existence since more than 60 years, is not supported by any materials on record in the original writpetition. In fact, the case of the District Panchayat administration is that such construction is a very recent one, and is going on since 2009 onwards. The temple construction has already occupied a large area of gaucher land. None of the materials sought to be relied upon by these applicants along with this application, was ever produced before us, though a copy of the writapplication was duly served and represented through the Advocate, who appears in this application also. This application is therefore, rejected.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) Mohandas Page 3 of 3