Shankarlal Chhaganlal Makwana vs State Of Gujarat & 7 on 4 September, 2017

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Gujarat High Court

Shankarlal Chhaganlal Makwana vs State Of Gujarat & 7 on 4 September, 2017

Bench: J.B.Pardiwala

                    C/SCA/14367/2016                                                 ORDER




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       SPECIAL CIVIL APPLICATION NO. 14367 of 2016

                [On note for speaking to minutes of order dated 21/07/2017 in
                                         C/SCA/14367/2016 ]

         ==========================================================
                     SHANKARLAL CHHAGANLAL MAKWANA....Petitioner(s)
                                       Versus
                         STATE OF GUJARAT & 7....Respondent(s)
         ==========================================================
         Appearance:
         PARTY-IN-PERSON, ADVOCATE for the Petitioner(s) No. 1
         MR UTKARSH SHARMA, AGP - ADVANCE COPY SERVED TO GP/PP for the
         Respondent(s) No. 1
         MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 6
         MR KEYUR A VYAS, ADVOCATE for the Respondent(s) No. 7
         NOTICE SERVED for the Respondent(s) No. 1 , 5
         NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4 , 8
         ==========================================================

          CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                           Date : 04/09/2017


                                            ORAL ORDER

There is no any clerical or arithmetical mistake in the judgment and order dated 21st July 2017 passed by this Court in this Special Civil Application No.14367 of 2016. In this note for speaking to minutes, the original petitioner is seeking further directions / clarification. I am of the view that the applicant should file a Miscellaneous Civil Application in the disposed of petition. This note is, accordingly, disposed of with liberty to file a Miscellaneous Civil Application in accordance with law.

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HC-NIC Page 1 of 12 Created On Sat Sep 09 22:42:24 IST 2017 1 of 12 C/SCA/14367/2016 ORDER (J.B.PARDIWALA, J.) chandresh Page 2 of 2 HC-NIC Page 2 of 12 Created On Sat Sep 09 22:42:24 IST 2017 2 of 12 C/SCA/14367/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14367 of 2016 ========================================================== SHANKARLAL CHHAGANLAL MAKWANA....Petitioner(s) Versus STATE OF GUJARAT & 7....Respondent(s) ========================================================== Appearance:

PARTY-IN-PERSON, ADVOCATE for the Petitioner(s) No. 1 MR UTKARSH SHARMA, AGP - ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 6 MR KEYUR A VYAS, ADVOCATE for the Respondent(s) No. 7 NOTICE SERVED for the Respondent(s) No. 1 , 5 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4 , 8 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 21/07/2017 ORAL ORDER 1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a Senior Citizen aged 75, has prayed for the following reliefs:

"16(A)This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, directions to the respondent Nos.1 to 6 to remove the encroachment by the respondent No.7 in the petitioner's Gamtal Land situated at Moje Nandasan, Taluka: Kadi, District: Mehsana in City Survey Area bearing sheet No.2, New City Survey No.2036 admeasuring about 74.31 sq. mtrs. land (old Survey Number is 124) in the interest of justice;

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3 of 12 C/SCA/14367/2016 ORDER (B) To grant such other and further reliefs necessary in the interest of justice;"

2 The devastated and crestfallen writ applicant has almost lost a decade of his life so far in this litigation. He is appearing in person. The signs of exasperation shown by him are really very painful. The time has now come to do justice with him. It is the case of the writ applicant that he is the owner of an ancestral property situated at village: Nandasan, Taluka: Kadi, District: Mehsana. According to him, he is the owner of the property since 1952 53. There was one house standing on the parcel of land owned by the writ applicant. As the house was in a dilapidated condition, the same was pulled down and a new house was constructed in the year 2006 in accordance with the rules and regulations. It is his case that the Sarpanch of the village issued a notice for demolition of the house. He was given five days notice period in this regard. Although the Panchayat had granted permission to put up the construction of the house, yet the Sarpanch, in collusion with the neighbour of the writ applicant namely, Devjibhai Bhanabhai Makwana, demolished the newly constructed house. After the construction of the house was demolished, the writ applicant was thrown out of the entire property.

3 Since then, the writ applicant has been fighting as regards the highhanded action on the part of the persons involved in the matter. I need not go into the further details, as the affidavit filed today by the City Survey Superintendent makes the picture as clear as a noon day. I took up this matter for the first time on 8th June 2017. On that date, the following order was passed:

"Having heard the petitioner appearing in person and Mr. Munshaw, the learned counsel appearing for the respondent no.6 the Taluka Development Officer, Kadi, I am of the view that the presence of the City Page 2 of 10 HC-NIC Page 4 of 12 Created On Sat Sep 09 22:42:24 IST 2017

4 of 12 C/SCA/14367/2016 ORDER Survey Superintendent, VillageNandasan, TalukaKadi, DistrictMehsana, before this Court is necessary.

A responsible officer from the office of the District Collector, Mehsana, shall also remain present on the next date of hearing. Post this matter on 14/06/2017. On the next date of hearing, the City Survey Superintendent shall explain to this Court, what steps he has taken for the purpose of measurement of the area of the land, on which the respondent no.7 has put up the construction.

The petitioner appearing in person is permitted to implead the Nandasan Gram Panchayat through its Sarpanch/ TalaticumMantri, TalukaKadi, DistrictMehsana, as the party respondent no.8. The causetitle be amended accordingly. Let notice be issued to the newly impleaded party respondent no.8 returnable on 14/06/2017. Direct service is permitted."

4 Thereafter, on 21st June 2017, the following order was passed:

"Pursuant to the order passed by this Court, the City Survey Superintendent, VillageNandasan, TalukaKadi, DistrictMehsana, is personally present with the record. What has been understood from the facts gathered is that the petitioner appearing in person claims to be the owner of the land bearing Survey Nos.238, 332, 353, now consolidated survey No.2036. It is his case that on this particular plots of land, he had put up construction of a house, which on account of untenable objections raised by the villagers, came to be pulled down illegally. The issue, which is being looked into by the City Survey Superintendent as on date, is with regard to the ownership of the land bearing survey nos.238, 332, 353 i.e. consolidated survey No.2036.

The Officer who is present informs that the hearing in this regard has been concluded and he will be passing the necessary order in this regard by 30/06/2017. He has assured that he will look into the entire record available with him and pass an appropriate order in accordance with law. This order perhaps may make the things a bit clear. It is only, after this order is passed that this Court will be able to resolve the dispute.

The petitioner appearing in person has been explained to wait till he is communicated above, the order that the City Survey Superintendent would pass. Post the matter on 05/07/2017. On the next date, the Officer shall remain present once again to assist the Court."

5 On 5th July 2017, the following order was passed:

"Mr. Sharma, the learned AGP appearing for the State informs that the Page 3 of 10 HC-NIC Page 5 of 12 Created On Sat Sep 09 22:42:24 IST 2017 5 of 12 C/SCA/14367/2016 ORDER City Survey Superintendent has concluded the hearing and has passed an order, which is in favour of the petitioner appearing in person. Mr. Sharma, the learned AGP has many things to place before this Court because according to the learned AGP, a fraud was played upon with the petitioner.

In such circumstances, I requested Mr. Sharma, the learned AGP to file a detailed reply with necessary documents so that further action can be taken in the matter. The learned AGP prays for some time to place a reply on record. Post the matter on 14/07/2017 on top of the board."

6 On 14th July 2017, the following order was passed:

"One last opportunity is given to the State to file a detailed reply pursuant to the order passed by this Court on 5th July 2017. I am informed that the City Survey Superintendent, who concluded the inquiry and passed the last order, has retired from service. In such circumstances, the affidavit could not be filed. Whoever has succeeded in the office shall place all the relevant papers on record by way of an affidavit, and if any assistance of the retired officer is necessary, the same shall be taken at the earliest.

Post the matter, as a last chance, on 21st July 2017 on top of the Board."

7 Pursuant to the last order passed by this Court dated 14th July 2017 referred to above, a detailed affidavit dated 21st July 2017 has been filed by the City Survey Superintendent namely, Ramsingbhai Vasnabhai Pasaya, inter alia stating as under:

"1 The present petition, has been preferred by the petitioner praying that appropriate order direction may be issued for removing the encroachment of respondent No.7 in the petition. Land situated at Nandasan, Tal: Kadi, Dist: Mehsana, City Survey No.2036 (Old Survey No.124) admeasuring 74.31 sq. mtrs.

2 It is submitted that during the course of hearing, the petitioner had raised various grievances about the conduct of various private parties and the Panchayat Authorities while carrying out the demolition of his residential premise situated on the above mentioned land. During the course of hearing, it was brought to the Hon'ble Court's kind attention that as far as the prayers in the present petition are concerned. The office of the City Survey Superintendent, Nandasan had carried out the verification of the site in question which is identified as new City Survey No.2036. The said property has been umbered as 241 and as per the Page 4 of 10 HC-NIC Page 6 of 12 Created On Sat Sep 09 22:42:24 IST 2017 6 of 12 C/SCA/14367/2016 ORDER assessment sheet of 195152, the same was identify as no.238, in the year 198889 it was identify as no.332, in the year 199394 it was identify as no.353, and in the year 200304 it was identify as no.386. The short report prepared pursuant to the said exercise is annexed herewith and marked as AnnexureI. 3 In the year 198889, for the purpose of assessing property making them subject to tax in City Survey, exercise was carried out as far as village: Nandasan is concerned, however, at that point of time it appears that no property could be identified on the land in question in the name of the petitioner and therefore, his portion of land as claimed by his could not be assessed. The petitioner being aggrieved of the preferred an Application No.7 of 2007 before the Prant Officer (Deputy Collector). The Deputy Collector by order dated 04.05.2007 relegate the matter to the City Survey Superintendent, Nandasan for the purpose of properties at Serial No.238, 332 and 335 so as to decide the claim afresh. The copy of the order dated 04.05.2007 is annexed herewith and marked as Annexure II.

4 Thereafter, the City Survey Superintendent had passed an order dated 30.08.2007, whereby, on verifying the details made available before him, he held the said property i.e. City Survey No.2036 is in the name of Makwana Shankarlal Chhaganlal qua 74.31 sq. mtrs. The copy of the said order dated 30.08.2007 is annexed herewith and marked as AnnexureIII.

5 Thereafter, the said order came to be challenged before the Deputy Collector by the Panchayat Authorities and the Deputy Collector vide order dated 28.05.2009, set aside the order dated 30.08.2007 holding the land to be State Government land and it was also observed in the operative portion that the final outcome of C.M. No.10 of 2007 would be binding for the issue on hand. The copy of the order dated 28.05.2009 is annexed herewith and marked as AnnexureIV.

6 Thereafter, the said order came to be challenged before the office of the Collector vide order dated 30.12.2009 and it was observed that the final outcome of Special Civil Suit No.87 of 2008 would be binding and upheld the order passed by the Deputy Collector. The copy of the order dated 30.12.2009 is annexed herewith and marked as AnnexureV. 7 Thereafter, the said order again came to be challenged before the Ld. SSRD by Shankarlal Chhaganlal Makwana i.e. present petitioner. The ld. SSRD partly allowed the Revision Application, setting aside the order dated 28.05.2009 passed by the Collector and directed to decide the said issue afresh. In the said order the Special Secretary Revenue Department had made certain observations about the conduct of the Panchayat authorities and pendency of a suit for the purpose of claiming damages. The copy of the order dated 11.03.2011 is annexed herewith and marked Page 5 of 10 HC-NIC Page 7 of 12 Created On Sat Sep 09 22:42:24 IST 2017 7 of 12 C/SCA/14367/2016 ORDER as AnnexureVI.

8 Thereafter, the remand case came to be registered before the office of the City Survey Superintendent and the City Survey Superintendent again decided the remand case no.1 of 2012 and finally revived the original order dated 30.08.2007, whereby, the said property of City Survey No.2036 admeasuring qua 74.31 sq. mtrs. was held in the occupancy of Sankarlal Chhaganlal Makwana, the present petitioner. The copy of the order dated 28.12.2012 is annexed herewith and marked as AnnexureVII.

9 Thereafter, the order dated 28.12.2012 came to be forwarded to the Deputy Collector and the Deputy Collector by communication dated 27.05.2013 directed the City Survey Superintendent to again go into all aspects with reference to revenue record of Panchayat Authorities and take a decision afresh.

10 Thereafter, the remand case no.1 of 2012 was again considered afresh and order dated 12.09.2013 was passed, the land was held to be Government land. Therefore, it appears that afresh decision was taken on remand. The copy of the order dated 12.09.2013 passed by the City Survey Superintendent, Nandasan is annexed herewith and marked as AnnexureVIII.

11 Thereafter, the said order dated 12.09.2013 was again challenged by Sankarlal Chhaganlal Makwana by way of Appeal No.8 of 2013 and the Deputy Collector by order dated 28.02.2014 again remanded the case for consideration afresh by the City Survey Superintendent. The copy of the order dated 28.02.2014 is annexed herewith and marked as Annexure IX.

12 Thereafter, the said proceedings were pending before the authorities of City Survey Superintendent and finally the order dated 30.06.2017 has been passed, pending the hearing of the petition holding the present petitioner has an occupant of the said parcel of land. The copy of the said order dated 30.06.2017 is annexed herewith and marked as AnnexureX. 13 The above mentioned details with reference to order passed by the Revenue Authorities, are placed on record of the Hon'ble Court with a view to complete the chronology of events and proceedings before them. As far as issue with reference to unlawful demolition of property of the petitioner is concerned, from the record available it appears that the petitioner's occupancy was required to be verified and only thereafter, any decision was supposed to be taken by the Panchayat and District Authority with reference to demolition. The petitioner has produced the copy of the Sanad at page no.32. The additional evidence filed by the petitioner at page no.48 to the petition is the Raja Chithhi issued in his favour and at page Page 6 of 10 HC-NIC Page 8 of 12 Created On Sat Sep 09 22:42:24 IST 2017

8 of 12 C/SCA/14367/2016 ORDER no.52 the communication made by the District Development Officer is placed on record on the very same issue, whereby, the Talati and other Panchayat Authorities at that point of time, were held to have committed illegality of demolition without proper verification of the record.

14 It is pertinent to note that an Inquiry Case No.4 of 2008 was also initiated which is at page no.55 to the petition and in the said inquiry, the process has been issued under Section 166, 167, 177, 182, 196, 197, 218, 219 read with Section 114 of IPC under Section 204 of Cr.P.C. against one Yusuf S. Saiyad Panchayat (Office boy), Jaynti Naraotam (Talati), B.F. Makwana (Board Operator), Ravindera Devjibhai son of the neighbour and one Prahladbhai Savabhai Makwana.

15 It appears from the material on record as well as the record of the City Survey Superintendent that there were various proceedings initiated including civil as well as criminal against the Panchayat Authorities, in view of the said proceedings already initiated, the steps would be taken accordingly and the higher Revenue Authorities may be appropriately directed to monitor the same, especially considering the aspect that the proceedings involve District Authorities and therefore, only higher revenue authorities can look into the issue."

8 Along with the affidavit, many important and relevant documents have been annexed. The averments made on oath as contained in para 13 clinches the issue. After a detailed inquiry on all the relevant aspects, it has been found that the writ applicant is the lawful owner of the land in question and had put up the construction of the house also lawfully. However, the Sarpanch and the other unscrupulous persons, in collusion with each other with an oblique motive, demolished the house and evicted the writ applicant in a most highhanded manner from his own property.

9 It appears that the writ applicant herein filed a private complaint in the Court of the learned Additional Civil Judge and Judicial Magistrate First Class, Kadi, against the persons responsible for the highhanded action for the offence punishable under Sections 166, 167, 177, 182, 196, 197, 218 and 219 read with 114 of the Indian Penal Code. The criminal complaint came to be registered as the Criminal Page 7 of 10 HC-NIC Page 9 of 12 Created On Sat Sep 09 22:42:24 IST 2017 9 of 12 C/SCA/14367/2016 ORDER Inquiry Case No.4 of 2008. The J.M.F.C., Kadi, by his order dated 27th July 2012, took cognizance upon the complaint and issued process for the offence enumerated above. While taking cognizance and issuing process, the J.M.F.C., Kadi has really taken pains to look into the matter and has passed an exhaustive order. The writ applicant appearing in person informs that the entire trial is over, and now, it is kept for judgment.

10 This writ application is disposed of with the following directions:

[I] The first and the foremost thing that is necessary to be done is to put the writ applicant in possession of the land situated at village: Nandasan, Taluka: Kadi, District: Mehsana. The Collector, Mehsana is directed to depute a team of the responsible officers who will put the writ applicant in possession of the plot. In this regard, necessary documents shall be prepared and handed over to the writ applicant along with a possession receipt.

[II] Once the possession of the property is taken over by the writ applicant and if he intends to put up construction of a new house, then he shall apply for the necessary permission with the authorities concerned and on the grant of the necessary permission, the writ applicant shall put up the construction of the house. If any such application is filed for the construction of the house, then the same shall be processed at the earliest, and in any case, appropriate permission shall be granted in accordance with law within a period of four weeks from the date of receipt of the application of the applicant.

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HC-NIC Page 10 of 12 Created On Sat Sep 09 22:42:24 IST 2017 10 of 12 C/SCA/14367/2016 ORDER [III] The J.M.F.C., Kadi, is directed to complete the proceedings of the Criminal Case No.860 of 2012 and see to it that the same is disposed of with the judgment within a period of two months from the date of receipt of this order. There shall not be any further delay, as the writ applicant has suffered a lot.

[IV] I am informed by the writ applicant that he had filed three different civil suits with regard to compensation, etc. Unfortunately, for some reason or the other, he has lost in all the three suits. Now, he is here before this Court by way of three Special Civil Applications. The three Special Civil Applications are pending before a Coordinate Bench. He being a Senior Citizen and has suffered a lot for no good reason and fault on his part, he may request the Honourable Judge to take up the three Special Civil Applications for hearing at the earliest.

[V] The Collector, Mehsana and the District Development Officer are directed to now take appropriate steps against all the erring persons and see to it that the writ applicant is appropriately compensated in terms of money. Let me drawn the attention of the Collector as well as the District Development Officer to the order passed by the Special Secretary of the Revenue Department (Appeals), Ahmedabad dated 11th March 2011, more particularly, the last paragraph, which is at page: 110 111 of the paper book.

11 With the conclusion of this order, the writ applicant has taken a sigh of relief. He is a happy man today. This petition should be an Page 9 of 10 HC-NIC Page 11 of 12 Created On Sat Sep 09 22:42:24 IST 2017 11 of 12 C/SCA/14367/2016 ORDER example for the authorities like, the Collector and the District Development Officer to ensure that the subordinate revenue authorities do not abuse their position and powers and harass a common man for some oblique motive.

12 At this stage, I must state that on my request, Mr. Utkarsh Sharma, the learned Assistant Government Pleader took up this matter very seriously with one and all. It is his pains which has ultimately yielded this result, but, for his positive attitude and zeal to do justice, this would not have been possible. I must appreciate the efforts made by the City Survey Superintendent also in conducting the inquiry. When he had to appear before me, he had just about 10 to 12 days left for his superannuation. He has acted honestly and placed all the true and correct facts on record.

13 This petition is disposed of. Direct service is permitted.

14 A copy of this order be provided to Mr. Utkarsh Sharma, the learned A.G.P. for its onward communication. A copy of this order be forwarded at the earliest to the J.M.F.C. Kadi.

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