Gujarat High Court
Raval Vishnubhai Bhalabhai vs State Of Gujarat & 7....Opponent(S) on 28 August, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/WPPIL/191/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 191 of 2011
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RAVAL VISHNUBHAI BHALABHAI....Applicant(s)
Versus
STATE OF GUJARAT & 7....Opponent(s)
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Appearance:
MR RAJESH K SHAH, ADVOCATE for the Applicant(s) No. 1
MR PARTH BHATT, AGP for the Opponent(s) No. 1
MR BHARAT T RAO, ADVOCATE for the Opponent(s) No. 7
MR HS MUNSHAW, ADVOCATE for the Opponent(s) No. 5
NOTICE SERVED BY DS for the Opponent(s) No. 1 - 4 , 6 , 8
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/08/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This petition in the nature of a public interest litigation brings to our notice the illegal encroachment of the Panchayat land by the respondents no. 7 and 8. The allegations of the petitioner are that the said respondents without any authority of law have occupied vast areas of the Panchayat land and have been carrying on the construction of a temple wholly illegally.
2. In response to the notice issued, the respondents have appeared. The respondent no.5 Taluka Development Page 1 of 5 C/WPPIL/191/2011 ORDER Officer, Kadi, filed his reply dated 31.1.2012 in which he admitted that the construction of the temple in survey no.1410 of 3440 sq. mtrs., which is a Gauchar land, is going on since year 2009. He further stated that such temple covers 2282 sq. mtrs of land. He agrees that there cannot be any construction on Gauchar land, that too without the permission of the competent authority. He agrees that such construction is totally unauthorised. He notes that the Gram Panchayat had made entries of unauthorised construction in the year 2009 itself and had issued the notices in the year 2011. It is further stated that in terms of section 105 of the Gujarat Panchayat Act, 1993, the Gram Panchayat is required to take necessary action for removal of such unauthorised construction. The Gram Panchayat has also been instructed accordingly from time to time. Newly taken over Sarpanch of the village has taken charge on 1.2.2012. It is his duty to take further steps. We may reproduce the relevant portions of the said affidavit which reads as under :
"1. The respondent no.5 submits that revenue survey No.1410 of Village Nandasan, Taulka Kadi, District Mehsana is meant for gaucher and a copy of Village Form No.7 & 12 dated 29/12/2010 is annexed herewith and marked as AnnexureA. The respondent no.5 submits that the area of revenue survey No.1410 is 3440 sq. meters and on inquiry it is found that construction of a Temple covering 2282 sq. meters of land is going on since 24/07/2009 on the said gaucher land and the copies of photographs as well as Panchnama are annexed herewith and marked as AnnexureB collectively. It is most respectfully states that there cannot be any construction on gaucher land without any permission of the competent authority and the said construction is totally unauthorized Page 2 of 5 C/WPPIL/191/2011 ORDER and illegal. It is further stated that so far as the record of Navapura Gram Panchayat is concerned, an entry with regard to the said unauthorized construction is passed on 24/07/2009 and thereafter notices dated 09/06/2011, 26/08/2011, 13/10/2011 & 23/11/2011 are issued by the Gram Panchayat to those concerned and interested in the construction and copies thereof are annexed herewith and marked as AnnexureC collectively. It is further stated that even a Resolution No.13 dated 17/06/2011 is passed by the Gram Panchayat for removal of the superstructure and a copy thereof is annexed herewith and marked as AnnexureD. It is stated that even latest Panchnama dated 27/01/2012 shows that the construction is being put up on the land and it is incomplete and a copy thereof is annexed herewith and marked as AnnexureE.
2. The respondent no.5 most respectfully states that as soon as the Taluka Panchayat received the application dated 03/10/2011 from the present petitioner with regard to unauthorized construction being raised on gaucher land, immediate action was taken by way of addressing letters dated 04/10/2011, 07/10/2011, 20/10/2011 and 25/10/2011 by Navapur Gram Panchayat and Nandasan Gram Panchayat for necessary actions and the copies there of are annexed herewith and marked as AnnexureF collectively."
3. The respondent no.5 has filed further affidavit dated 23.2.2012 stating that due to the Election Commission having declared the code of conduct, looking to the by elections to the assembly constituency, it would not be possible for the Gram Panchayat as well as the said respondent to take further action under section 105 of the Gujarat Panchayat Act, 1993. No affidavit has been filed by the respondents no.7 and 8.
Page 3 of 5C/WPPIL/191/2011 ORDER
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, of course, after following the due process of law. This shall be completed latest by 30.11.2014. The Taluka Panchayat Page 4 of 5 C/WPPIL/191/2011 ORDER 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.
Direct service is permitted.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) raghu Page 5 of 5