Gujarat High Court
Bhupendra Gordhanbhai Pandya vs Dantali Gram Panchayat on 10 July, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/9634/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9634 of 2015
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BHUPENDRA GORDHANBHAI PANDYA....Petitioner(s)
Versus
DANTALI GRAM PANCHAYAT....Respondent(s)
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Appearance:
MR ANKUR Y OZA, ADVOCATE for the Petitioner(s) No. 1
MR NIKHIL S KARIEL, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/07/2015
ORAL ORDER
1. The matter is taken for final hearing and disposal with the consent of the learned advocates for the parties. Hence Rule. Learned Advocate Mr. Kariel waives service of rule for the respondent.
2. Here is a case where it appears to the Court that the present Sarpanch of the respondentGram Panchayat has for different consideration, decided to take action against the petitioner for putting up the construction on the land admeasuring 1250.50 square meter forming part of land bearing survey/Block No. 929 for which non agricultural permission was granted for residential purpose vide order dated 02.12.2014 Page 1 of 12 C/SCA/9634/2015 ORDER issued by the Taluka Development Officer.
3. By the present petition filed under Article 226 and 227 of the Constitution of India, the petitioner has challenged notice dated 09.06.2015 issued by the Sarpanch of respondentGram Panchayat to the petitioner under Section 104(4) of the Gujarat Panchayats Act, 1993("the Act"). In the said notice, it is stated that the petitioner has started making construction on the land admeasuring 1250.50 square meter out of land admeasuring 020335 hectorAreSquare Meter of Block No. 929 of Ranchhodji Maharaj Temple without any permission obtained from the Panchayat. By the said notice, the petitioner is asked to stop the construction and to restore the position of the land.
4. It is a case of the petitioner that the petitioner is the owner of the said land. The predecessorintitle of the petitioner was granted non agricultural permission for residential purpose under Section 65 of Bombay Land Revenue Code on various conditions including the condition of taking permission of the local authority under the Panchayat Act. It is further case of the petitioner that such permission was granted to the petitioner as per the intimation by the TalaticumMantri. However, the Sarpanch in his affidavitinreply has denied to have granted such permission and stated that the Page 2 of 12 C/SCA/9634/2015 ORDER police complaint is filed alleging forgery and fraudulent act on the part of the petitioner in the matter of grant of permission.
5. Learned Advocate Mr. Oza appearing for the petitioner submitted that as per the condition of non agricultural permission, the petitioner intends to use the land for residential purpose as per permission of the Panchayat. Mr. Oza submitted that the petitioner asked for the permission to construct on his land and to draw water for such purpose. Mr. Oza submitted that the petitioner started to put up the construction with such permission, but till the construction reached to the stage of putting up the slabs, there was no objection raised by the Panchayat. Mr. Oja submitted that nobody except the Sarpanch of the Panchayat has any objection and Sarpanch is objecting to the construction in the name of the temple with some other consideration.
6. On the other hand, learned Advocate Mr. Kariel appearing for the respondent submitted that the impugned notice is given by the Sarpanch under Section 104 of the Act as the petitioner was putting construction of the residential house without permission from the Panchayat. Mr. Kariel submitted that the impugned notice has nothing to do with the proceeding filed by Sarpanch before the Deputy Collector which is in connection with the entry for the land of Block No. 929. Mr. Page 3 of 12 C/SCA/9634/2015 ORDER Keriel submitted that the petitioner has tried to mislead the Court by trying to connect the impugned notice issued by the Sarpanch with the proceedings pending before the Deputy Collector with deliberate intention to save the illegal construction carried out by him without permission of the Panchayat. Mr. Kariel submitted that the petitioner has not obtained any permission from the Panchayat and in respect of socalled permission allegedly obtained from the TalaticumMantri, the police complaint is filed against the petitioner for his fraudulent act of creating the document of permission in the name of Panchayat.
7. Having heard learned advocates for the parties, it appears that the predecessorintitle of the petitioner was granted nonagricultural permission vide order dated 02.12.2014 at Annexure 'A' by the concerned authority for residential purpose for land admeasuring 1250.50 square meter from the total land of Block No. 929 on different conditions. On account of such permission, the petitioner became entitled to use the land of Block No. 929 to the extent of 1250.50 square meter for residential purpose. This permission appears to have been granted by the concerned authority based on layout plan and building plan for Block No. 929/P. However, for erection of any residential building, permission of the concerned Gram Panchayat is required.
Page 4 of 12 C/SCA/9634/2015 ORDERThough, it is the case of the petitioner that such permission was obtained but the impugned notice is issued on the ground that such permission was never obtained by the petitioner.
8. In the impugned notice at Annexure 'J', it is stated that on the land of Ranchhodji Maharaj Temple, the petitioner is putting up construction without prior permission of Panchayat and in illegal manner which is a serious offence under Section 104(4) of the Act and the petitioner should stop the construction and put the land to its original position.
9. From the document produced on record, it appears that after original owner Mangaldas Sukhram pandya was granted nonagricultural permission on payment of necessary conversion charges, the petitioner purchased the land admeasuring 1250.50 square meter only from Block No. 929. Whereas except the bare say of the Sarpanch that land belongs to temple, there is no material produced to show that the land admeasuring 1250.50 square meter of Block No. 929 belongs to temple.
10. When asked to Mr. Kariel to show any material or any entry either from Panchayat record or from any Government record showing the ownership of land or any right in connection with such land of temple, Mr. Kariel stated that no such material Page 5 of 12 C/SCA/9634/2015 ORDER is available. When further asked to Mr. Kariel as to whether a Sarpanch is trustee of Ranchhodji Maharaj Temple, he stated that the Sarpanch is not the trustee of the temple. It is not brought to the notice of the Court that anybody except the Sarpanch has claimed that the land of 1250.50 square meter is of the temple.
11. From the proceedings taken out by the Sarpanch before the Deputy Collector being R.T.S. Appeal No. 195 of 2015 against the original owner and the petitioner, it appears that the land of Block No. 929 is claimed to be devesthan land and the grievance is made in connection with entry recorded in the revenue record for the land of Block No. 929. When such proceedings are taken out by the Sarpanch himself in connection with the land purchased by the petitioner, the reference about the Ranchhodji Maharaj Temple in the impugned notice cannot be said to be of no relevance, or not connected with the proceedings pending before the Deputy Collector as tried to be submitted by Mr. Kariel. The Court finds that in the name of temple, the Sarpanch of the respondentGram Panchayat is making concentrated efforts to obstruct the construction of residential house being put on by the petitioner. Till it is established that the land belongs to Temple, the petitioner cannot be prevented from putting up construction in accordance with permission from the Panchayat.
Page 6 of 12 C/SCA/9634/2015 ORDER12. Simply because there is a complaint filed against the petitioner alleging fraud in obtaining permission the same would not be a ground to prevent the petitioner from putting the construction on the residential house or to demolish the construction put up by him if the petitioner is otherwise agreeable to have his house constructed as per the permission from the Panchayat.
13. This Court issued notice after the petitioner had tendered undertaking clearly stating that he shall not carry out further construction on the land of Block No. 929 unless permission is granted by the Gram Panchayat.
14. By such undertaking, the petitioner binds himself to make construction of the residential house only as per the permission which may be granted by the Gram Panchayat and till then if the petitioner is not to make any further construction, it will not serve any purpose to first ask the petitioner to demolish the construction put up by him and then to obtain permission for construction of house on his land. Demolition or removal of the construction already put up by the petitioner up to the slab level would definitely cause him financial loss whereas if such construction is not otherwise found to be contrary to any rules and regulations and if the Page 7 of 12 C/SCA/9634/2015 ORDER permission could be granted to retain construction and complete the remaining construction, the Panchayat may not be put to any prejudice. So long as it is established in any competent Court that the predecessorintitle of the petitioner or the petitioner is not the owner of the land admeasuring 1250.50 square meter or so long as there is no prohibitory order from the competent Court restraining the petitioner from making the use of the land for residential purpose, the petitioner being owner of the land is always entitled to use the land for non agricultural residential purpose, of course, subject to the permission of the competent authority including that of Panchayat.
15. Simply because a complaint is filed against the petitioner, is no ground to say that the petitioner is not entitled to construct house on his own land for all times to come. In the Criminal proceedings stated to have been initiated against the petitioner, if the petitioner is found guilty, he may be punished according to law however such punishment in the criminal proceedings will not take away his right to put up the construction of a residential house by obtaining permission of the Panchayat. The Court finds that when the petitioner has undertaken not to carry out any construction on his land unless permission is granted by the Panchayat, the interest of justice will be Page 8 of 12 C/SCA/9634/2015 ORDER subserved if the construction already put up by the petitioner is not allowed to be removed or demolished till the Panchayat decides to grant fresh permission to the petitioner to put up the construction of the residential house on his land.
16. Learned Advocate Mr. Oza for the petitioner drew the attention of the Court to an application dated 24.06.2015 made by the petitioner to the Panchayat seeking necessary permission for construction of the house by the petitioner on his land. In the said application the petitioner has referred the communication of Taluka Development Officer dated 21.05.2015 addressed to the predecessorintitle of the petitioner stating that the construction being made on the land admeasuring 1250.50 square meter of Block No. 929 since sanctioned without permission, it should be stopped till necessary permission from the Panchayat was obtained. In fact, such letter of the Taluka Development Officer goes to suggest that if necessary permission is given by the Panchayat, the petitioner shall be entitled to put up the construction of the residential house on his land. When Taluka Development Officer has taken such reasonable stand of just stopping the construction and not of removal of the construction till necessary permission is obtained from the Panchayat, it is not difficult to understand that the action which is being Page 9 of 12 C/SCA/9634/2015 ORDER taken by the Sarpanch is for different reason which could be seen through impugned notice where reference to Ranchhodji Maharaj Temple is made and through the proceedings of the appeal filed by the Sarpanch before the Deputy Collector though as stated by Mr. Kariel that Sarpanch is not the trustee, or in no way connected with the temple.
17. In any case, now when the petitioner has made application to the Panchayat for permission to construct residential house, the impugned notice cannot be permitted to be acted upon, till the application dated 26.04.2015 made by the petitioner is examined and decided by the Panchayat.
18. Mr. Oza submitted that if it is necessary and on being asked to make an application in any prescribed format, the petitioner is agreeable to make such fresh application for necessary permission for construction of house on his land. The Court, therefore, finds that this is a fit case where the respondent is required to be directed to first decide the application dated 24.06.2015 of the petitioner for permission to make construction of residential house on his land bearing Block No. 929 admeasuring 1250.50 square meter without disturbing the construction already made by the petitioner, or on petitioner being asked to make fresh application in any Page 10 of 12 C/SCA/9634/2015 ORDER prescribed format, then to decide such application first without disturbing the construction put up by the petitioner.
19. For the reasons stated above, the petition is allowed. The impugned notice dated 09.06.2015 is quashed. The respondent is directed to decide the application dated 24.06.2015 made by the petitioner at Annexure 'K' within two months from the date of receipt of this order, or on petitioner making fresh application in a prescribed format if so required and so asked, to decide such application within two months from the date of receipt of such application. It is provided that on examination of the application at Annexure 'K' dated 24.06.2015 or on examining the fresh application which the petitioner may be asked to make, if the construction put up by the petitioner on his land and further construction proposed by the petitioner for his residential house on his land is found to be permissible in law, the respondent shall have due regard to such permissible construction while deciding the application of the petitioner for grant of permission to construct the residential house to him. The petitioner is also directed to abide by his undertaking till he is granted permission by the Panchayat to construct residential house on his land.
20. Rule is made absolute. Direct service is permitted.
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