Gujarat High Court
Dharamshi Meghji Savla vs Bidada Gram Panchayat on 22 November, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/11064/2014 ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11064 of 2014
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2015
In R/SPECIAL CIVIL APPLICATION NO. 11064 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 4825 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 4871 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 6618 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 6871 of 2015
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DHARAMSHI MEGHJI SAVLA
Versus
BIDADA GRAM PANCHAYAT & 56 other(s)
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Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR MEHUL SHAH, SR. COUNSEL with JENIL M SHAH(7840) for the
Petitioner(s) No. 1.1
MR MEET M. THAKKAR, AGP (1) for the Respondent(s) No. 4
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2,3
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 5,6,7,8
NANAVATY ADVOCATES(1373) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34
,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,9
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 22/11/2021
COMMON ORAL ORDER
1. All these petitions were heard together and are being disposed of by this common order as the facts are interconnected.
2. The genesis of the petitions of 2015 i.e. SCA Nos.4825/2015, 4871/2015, 6618/2015 and 6871/2015 was a result of the prayers made by the petitioner of SCA No.11064 of 2014. Hence, briefly, SCA No.11064 of 2014 Page 1 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 shall be dealt with at the outset.
3. The petitioner of SCA No.11064 of 2014 approached this Court by filing this petition with the prayer that a Writ of mandamus or any other appropriate writ, order or direction that may kindly be issued directing the respondents to forthwith decide and to act in the matter of the applications and notices at Annexture A, C, D, E and H herein, as prayed for, and to remove the encroachments and unauthorized constructions over the land of respondent No.1 - Panchayat and also nearby the property in question of the petitioner without any delay.
4. The case of the petitioner was that there were several encroachments averting to his property known as "Dharamsinh Complex" and though that Bidada Gram Panchayat for whom Mr. H.S. Munshaw, learned advocate appears had issued several notices of removal of encroachments, the encroachers were not removing construction and which according to the petitioner had carried out contrary to law. In SCA No.11064 of 2014 therefore, initially, the Court on 11.3.2015 passed the following order:
"11/03/2015:
1. The respondents No.1 to 3 will inform the Court on or before 23.3.2015 as to whether, in the first instance / face, encroachment over gaucher land have been removed or not.
2. Either simultaneously or thereafter the respondents No.1 Page 2 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 to 3 will also take steps to remove encroachment on gamtal land.
3. The respondent State will also take necessary steps to remove encroachment on government land.
4. So as to enable the respondents to place on record the action-taken report, the proceedings are adjourned to 23.3.2015. The report shall be filed on or before the said date.
5. The petitioner seeks permission to implead the Collector as respondent No.4.
6. Leave to amend so as to add respondent No.4 is granted. Amendment to be carried out forthwith.
7. Issue Notice to respondent No.4 making it returnable on 23.3.3015.
8. A copy of this order will also be forwarded to respondent No.4.
Direct Service of the order and the Notice qua respondent No.4 is permitted."
5. It will be also in the fitness of things to reproduce the orders extensively recording the facts and the submissions passed on 19.3.2015, 27.3.2015, 30.3.2015 and 31.3.2015.
"Date: 19/03/2015:
1. So far as Special Civil Application No.4825 of 2015 and Special Civil Application No.4871 of 2015 are concerned, request for permission for urgent circulation of the said two petitions was made on the ground that the respondent authorities have, on strength of the order dated 11.3.2015 in Special Civil Application No.11064 of 2014, started demolishing the construction/houses of the petitioners which, according to the respondents, are constructed by way of encroachment over gaucher land. It was claimed that many persons have not encroached over gaucher land, however, even such constructions are being demolished and since the process of demolishing is in progress, permission for urgent Page 3 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 circulation may be granted.
2. Having regard to the said submission, request for circulation of the petitions was granted and accordingly, the petitions are placed before the Court for appropriate orders.
3. In respect of Special Civil Application No.4825 of 2015, Mr. Mehta, learned senior counsel has appeared with Mr. Vyas, learned advocate for the petitioner and Mr. Singh has appeared for the petitioners in Special Civil Application No.4871 of 2015.
4. Mr. Munshaw, learned advocate has appeared for the respondents in Special Civil Application No.11064 of 2014.
He submitted that copies of the said two petitions, i.e. Special Civil Application Nos.4825/2015 and 4871/2015 are not provided to him.
5. Learned advocates for the petitioners would provide copies of the said petitions to Mr. Munshaw, learned advocate for the respondents.
6. The order dated 11.3.2015 is passed in Special Civil Application No.11064 of 2014. In the said petition, the petitioner has prayed, inter alia, that:
"8(a) A writ of mandamus or any other appropriate writ, order of direction may kindly be issued directing the Respondents to forthwith decide and to act the matter of the applications and notices at Annexure 'A', 'C', 'D', 'E' and 'H' herein, as prayed for, and to remove the encroachments and unauthorized constructions over the land of Respondent No.1 - Panchayat and also nearby the property in question of the Petitioner without any delay."
7. In the said petition, the respondent authority has filed affidavit dated 13.2.2015. In the said affidavit, the respondent authority has averred that:
"3. The Deponent submits that thereafter as per the record several notices were issued from time to time to other encroachers between 1998 to 2013. The deponent submits that she is elected as Sarpanch of Bidada Gram Panchayat on 16/01/2012 and has issued notices to number of encroachers on 08/02/2013 and 11/05/2013. It is stated that as on today there are 260 encroachments on gaucher land while 407 encroachments on Gamtal land. It is submitted that Gram Panchayat passed a Resolution No.34 in its Page 4 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 meeting dated 01/12/2014 firstly for removal of encroachments on Ring Road and it is resolved that firstly notices are to be issued to those encroachers who are on surrounding Ring Road and thereafter rest of the encroachers. It is stated that accordingly in all 101 encroachers are issued notices on 30/01/2015. The deponent submits that some of the encroachers have responded to the said notice so far.
5. The deponent submits that thereafter further actions would be taken for removal of rest of the encroachments. It is stated that considering huge number of encroachments, some more time would be required to clear the encroachments raised on gaucher land as well as Gamtal land. At this stage, the deponent craves leave to state that there is a Complex known as Dharamsinh Complex on Hajipir Road and consists in all 7 shops. The deponent craves leave to add that all the 7 occupants were issued notices on 30/01/2015. In response to the said notices, it is separately replied by them that there are shops and complex actually belonging to Mr. Dharamsinh Meghji Savla and they are the tenants. The deponent apprehends that the said shopping complex is constructed on public property perhaps by the present petitioner himself. It is pertinent to note that the petitioner herein had in past addressed a letter dated 02/12/2013 to the respondent No.1 complaining of encroachment and pollution opposite to the said Dharamsinh Complex. The Deponent submits that in view of the registration of 7 shops of Dharamsinh Complex in encroachment register of Village Bidada at No.800 to 806 and replies to notices tendered by said 7 occupants of the shops of Dharamsinh Complex, the deponent herein has to make further inquiry about the owner of superstructure and method & manner of encroachments on public property."
8. It was in light of the assertions made in paragraph No.3 of the said affidavit dated 13.2.2015 in Special Civil Application No.11064 of 2014 that the said order dated 11.3.2015 came to be passed.
9. In the said affidavit, the respondent has expressly mentioned that 'it is stated that as on today there are 260 encroachments on gaucher land while 407 encroachments on Gamtal land'.
10. The said assertions give out that about 260 persons have Page 5 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 encroached over gaucher land.
11. Having regard to the said assertions in the reply affidavit, which is not disputed/denied, the Court passed order dated 11.3.2015 so as to ensure that the encroachments over the gaucher land are removed without any delay.
12. When the authorities started action in view of the order, these petitions are taken out and it is alleged that the respondents have started the actions of demolition without issuing notices and without ascertaining as to whether all constructions which are being demolished are over gaucher lands or over the lands which are not put up on gaucher lands. It is also claimed that in cases of several petitioners, the lands have been allotted by the Panchayat itself.
13. The Panchayat should not and cannot allot gaucher land to anyone. Even if gaucher land is, as alleged by the petitioners, allotted by the Panchayat, such allotment would be illegal and unauthorized. Encroachments over gaucher land ought to be removed.
14. From the affidavit made by the respondents in Special Civil Application No.11064 of 2014, the Court has noticed that according to the respondents, the notices were issued, however, the concerned persons did not take note of the said notices and continued their occupation over the gaucher land.
15. Since today the grievance is made that in the process of demolishing even those constructions who are not over gaucher land but are on land other than gaucher land and in most of such cases, the lands are allotted by the Panchayat, following order is passed in furtherance of the said order dated 11.3.2015.
16. The respondent Panchayat will display the list of 260 persons who have encroached upon gaucher land at the Office of the Panchayat on 20.3.2015.
17. The Panchayat will also display another / separate list of 407 encroachers, who, according to the Panchayat, have encroached over Gamtal land.
18. The said list may also be displayed at Panchayat's Office as well as at the respective survey numbers tomorrow, i.e. on 20.3.2015.
19. The list will also contain Notice/Intimation to the Page 6 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 concerned persons to take note of the fact that according to the Panchayat, the construction put up by them are over gaucher land and that they have encroached over gaucher land and similar process shall be followed for Gamtal land. The survey numbers of the said lands may also be mentioned and intimation to remove the encroachment should be mentioned in such intimation with further clarification that in event of failure to remove the encroachment, the Panchayat will take action.
20. So far as the persons who, according to the respondent Panchayat, have encroached over the land other than gaucher land, in their cases, the actions may be taken in phased manner after verification of the claim regarding allotment of land by the Panchayat and after the action in respect of gaucher land is completed and after appropriate intimation to such persons (i.e. persons have encroached over land other than gaucher land) may be given with intimation about time before which the encroachment should be removed and the time after which the respondent authorities will initiate action for removing encroachment over the gaucher land.
21. So far as the encroachment over gaucher land is concerned, as mentioned earlier, the time for removing encroachment over gaucher land, as aforesaid, is extended until 25.3.2015 so that aforesaid process can be completed and the concerned persons can get time/opportunity to remove the construction and/or their belongings and that, therefore, the respondent Panchayat will, as aforesaid, display the list of the said persons with necessary intimation as mentioned above at the office of the respondent Panchayat as well as at the respective survey numbers.
22. After displaying the said notice, further action for removing the encroachment over gaucher land may be undertaken.
23. It is further clarified that it will be open to the concerned persons to approach the respondent authority, within one week with necessary material to demonstrate that they have not encroached over gaucher land and to demonstrate that the land in question is not gaucher land and it was allotted by the Panchayat. Further action to be taken after such verification. However, action in respect of gaucher land may proceed after following the process of declaring the names of the persons and survey numbers. The Panchayat will verify and ensure that the lands are, as per the record, gaucher land.
Page 7 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022C/SCA/11064/2014 ORDER DATED: 22/11/2021
24. It is further clarified that the petitioner in Special Civil Application No.11064 of 2014 is concerned, Mr. Shah, learned advocate for the petitioner submitted that premises of the petitioner is demolished, however, according to the petitioner, the said construction was not on gaucher land or Gamtal land.
25. Mr. Shah, learned advocate for the petitioner further submitted that since the construction was not an encroachment on gaucher land or Gamtal land, now status quo as regards the land in question, may be maintained.
26. In that view of the matter, it is clarified that the respondent shall maintain status quo as regards the land in question over which the petitioner had put up the construction, i.e. alleged encroachment.
27. Today, learned advocates for the petitioners in above- mentioned petitions and the applicants in Civil Application No.3488 of 2015, submitted that several persons, who have been allotted land by Panchayat and are not in occupation of gaucher land, are also affected by the demolition drive undertaken by the respondents and that there are several persons who have not encroached over gaucher land, however, action in respect of their constructions are also being taken.
28. Mr. Munshaw, learned advocate for the respondents submitted that the respondents are taking action in respect of gaucher land.
29. For the said purpose, time to take action in respect of gaucher land is extended for further two days, i.e. till 25.3.2015.
30. The petitions to be listed on 27.3.2015.
31. The respondent Panchayat will take action in respect of the Gamtal land in phased manner and after removing of encroachment over gaucher land. Direct Service is permitted today."
Date: 27/03/2015:
"1. In pursuance of the order dated 19.03.2015, this group of petitions is listed today.
2. Mr. Munshaw, learned advocate for the respondent Page 8 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 Panchayat and other officers submitted that after the order dated 19.03.2015 was passed, the respondents started the process of preparing the lists. However, the respondent Collector took the decision that before taking any action of removing encroachment, proper measurements by DLIR may be taken and the process of removing encroachment over Gaucher land should be started, thereafter, so that proper identification of all parcels of Gaucher land can be made.
3. On the said aspect, learned advocate Mr. Munshaw for the respondent nos.1 to 3 submitted that the process of measurement has commenced and the respondents will require one week's time and some further time to take action for removing encroachment over Gaucher land.
4. Mr. Munshaw, learned advocate for the respondent nos. 1 to 3 submitted that actually, by now, the process of measurement by DILR is completed, however, the reports have not been finalized and submitted to the Panchayat and that further action will be started upon receipt of the reports.
5. Mr. Shah, learned advocate for the petitioner in Special Civil Application No.11064 of 2014 has tendered an affidavit on behalf of the petitioner.
6. Mr. Shah, learned advocate for the petitioner submitted that according to the petitioner, his construction was not put up over the Gaucher land and the respondent Panchayat arbitrarily removed the construction without proper verification of facts and record.
7. Mr. Shah, learned advocate for the petitioner also submitted that after having passed order on 19.03.2015, until now, the respondents have not taken any action and the schedule mentioned in the order dated 19.03.2015 is not observed and complied with by the respondent Panchayat.
8. Mr. Munshaw, learned advocate for the respondent nos. 1 to 3 submitted that the respondents deferred the actual action of removing the encroachment with a view to avoiding any grievance and complaints and with a view to ascertaining the factual aspects before taking action of actual removal.
9. Even if the thought and idea behind the action of not following the schedule mentioned in the order dated 19.03.2015 (as mentioned by learned advocate for the respondent nos.1 to 3) is taken into account, then also the respondents could not have changed the schedule without seeking permission from the Court and permission for Page 9 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 deferring the action should have been prayed for and taken by filing appropriate application.
10. The respondent Panchayat and/or the collector could not have unilaterally disregarded the schedule mentioned in the order dated 19.03.2015, more particularly in Paragraph Nos. 16 to 18 of the said order.
11. Mr. Shah, learned advocate for the petitioner submitted that the respondents have not completed the said procedure, which is mentioned in the Paragraph Nos.16 to 18 of the said order dated 19.03.2015.
12. Though the Court may consider and take into account justification urged by the respondents in support of the action of not proceedings further with task of removing encroachment before verifying the measurement and identifying the encroachment, the action of respondents of changing schedule unilaterally without permission cannot be overlooked and/or countenanced. As mentioned earlier, by making appropriate application, permission should have been requested for.
13. Since the respondents have taken the decision unilaterally and without seeking permission from the Court, following order is passed:-
(A) While granting / extending the time to complete the procedure of measurement, preparing the report and identification of the respective lands, i.e. Gaucher land, Gamtal land and Government land and for displaying the said final lists, it is directed that respondent nos. 1, 3 and 4 will remain present in the Court on 30.03.2015.
14. As mentioned above, further time is granted / extended to enable the respondents to complete the procedure, however, the schedule for the said purpose will be fixed on 30.03.2015 after considering the submissions by the said officers and hearing the petitioner in Special Civil Application No.11064 of 2014 and other petitioners who have taken out other petitions, the schedule will be fixed on 30.03.2015."
Date: 30/03/2015:
"1. Today, respondent No.1 has filed an affidavit dated 30.3.2015. Mr. Munshaw, learned advocate for respondents No.1 to 3 submitted that the respondents tender apology for not having taken appropriate permission from the Court before modifying the schedule on their own. The apology Page 10 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 shall be placed by way of affidavit by each of the concerned respondents, i.e. officers in the Panchayat (viz. Sarpanch, Up- Sarpanch, Talati), Taluka Development Officer, District Development Officer and the Collector shall file affidavits tendering apology for the said purpose and it will be considered after examining the apology. The proceedings are adjourned till tomorrow, i.e. on 31.3.2015.
2. Mr. Munshaw, learned advocate for respondents No.1 to 3 submitted that the report from DILR is received and the work related to preparation of list will be completed by tomorrow. Therefore, further directions re-scheduling the work of removing encroachment over gaucher land will be finalized tomorrow. Mr. Munshaw, learned advocate for respondents No.1 to 3 has given the names of the officers who are present in the Court, i.e. Mr. C.J. Patel, District Development Officer, Kutch as In-charge District Collector, Kutch, Mr. A.J. Desai, Taluka Development Officer, Mandvi, Mr. Rahulbhai Modi, Talati-cum-Mantri and Ms. Dhiraben Gor, Sarpanch. Mr. Munshaw, learned advocate for respondents No.1 to 3 submitted that the Collector is presently on leave for one week, however, the District Development Officer is assigned charge and he is in-charge of the Office of the Collector."
Date: 31/03/2015:
"1. Heard Mr.Shah, learned advocate for the petitioner in Special Civil Application No. 11064 of 2014, Mr.Mehta, learned Senior Counsel with Mr.Vyas, learned advocate for the petitioner in Special Civil Application No. 4825 of 2015 and Mr.Munshaw, learned advocate for the respondent nos. 1 to 3.
2. Mr.Singh, learned advocate for the petitioner in Special Civil Application No. 4871 of 2015 is not present.
3. In furtherance of order dated 30.03.2015, Mr.Modi, Secretary, Gram Panchayat, Mr.Desai, in charge of T.D.O., Mr.Patel, District Development Officer and in charge Collector have filed affidavit tendering unconditional apology. On this count, further order will be passed on the next date.
4. Mr.Shah, learned advocate for the petitioner in Special Civil Application No. 11064 of 2014 has filed further affidavit in rejoinder along with certain documents, which, according to Mr.Shah, learned advocate for the petitioner in Special Civil Application No. 11064 of 2014 are required to be taken into consideration by the respondent Panchayat.Page 11 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022
C/SCA/11064/2014 ORDER DATED: 22/11/2021
5. Earlier, this Court issued directions in view of the request made by the learned advocate for the petitioner in Special Civil Application No. 11064 of 2014, directing the respondent Panchayat and other authorities to remove encroachments over Gaucher land and Gamtal Land.
6. In pursuance of the said directions, the respondents started taking action, however, due to certain objections on the ground of errors in identification of gaucher land and Gamtal land as against private land or other lands in administrative issues mainly related to identification of the survey numbers and actual encroachment, the respondents suspended the activity of removing the encroachment.
7. Certain details with regard to said aspects are recorded in the order dated 19.03.2014, 27.03.2015 and 30.03.2015.
8. Mr.Munshaw, learned advocate for the respondent Panchayat submitted that now the respondent Panchayat has received the report from the DILR and on that basis the work related to preparation of the list of the survey numbers which are Gaucher land and Gamtal Land and the encroachment over such land are being prepared and the process will be completed within few days, and thereafter, the respondent Panchayat will start further process i.e hearing, objections, if any, by the concerned persons.
9. For the said purpose, the request for extension of time limit fixed by the Court by earlier order is made by the respondent Panchayat.
10. Having regard to the submissions made by learned advocate for the respondent Panchayat and other respondents and also by learned advocate for the petitioners, following schedule is fixed.
11. The respondent Panchayat will complete the list of the survey numbers which are gaucher land and have been encroached upon. Similarly list shall be prepared for Gamtal land and the names of the persons who have encroached over the Gaucher land and Gamtal Land. The list shall contain the details regarding survey numbers and name of the persons who, according to the respondent Panchayat, are identified as persons who have encroached over Gaucher land and Gamtal Land.
12. Such preparation of the lists should be completed by 4th April, 2015 and the lists should be published / displayed on Page 12 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 05.04.201, at appropriate and conspicuous places including the Notice Board at Panchayat Office near the location of gaucher land and Gamtal land, common markets place and such other places, which Panchayat consider appropriate.
13. The information about the display of the list at such places will be announced by the respondent Panchayat by public announcement i.e. rickshaw with loud speaker and appropriate banners and any other method considered proper.
14. The respondent Panchayat will inform the concerned persons that if they want to submit objections against the identification of survey numbers of gaucher land and Gamtal land the encroachment, then such objection may be submitted on or before 06.04.2015 and hearing will be granted to the concerned persons, who have encroached over the Gaucher land during 7th and 8th April,2015.
15. The decision regarding objections will be declared by the Panchayat on 8th April,2015.
16. Three days time to the concerned person to remove their belongings i.e. up to 12th April,2015 shall be granted.
17. Thereafter, the respondent Panchayat will start work of remove encroachment over the Gaucher land and endeavour to complete as expeditiously as possible and preferably within three days.
18. The respondent Panchayat and other authorities may make appropriate request to the police authorities to provide protection, which will be considered and appropriate action may be taken.
19. After work of removing encroachment over Gaucher land is completed within prescribed time limit, Similar procedure with similar time frame to be followed by the respondent Panchayat in respect of encroachment over the Gamtal land.
20. For informing the work done with regard to removal over Gaucher land, further hearing is scheduled on 20.04.2015.
21. In the meanwhile, it would be open to the petitioner in Special Civil Application No. 11064 of 2014 to submit his objections/representations with regard to the action which is taken by the respondent Panchayat in respect of petitioner's property at Dharmshi Complex with the documents on which the petitioner wants to rely. The respondent Panchayat will Page 13 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 take into consideration such representation and may also submit copy to respondent Collector. If required further direction will be passed with regard to petitioner's application / representation on the next date of hearing.
22. The Collector may grant opportunity of hearing to the petitioner at such date and time convenient to him after 15th April,2015. S.O. to 20.04.2015."
6. Pursuant to the active role played by the Court in monitoring the encroachments made in the Gaucher land of the Bidada Gram Panchayat, as is evident from the orders reproduced herein above, the Bidada Gram Panchayat swung into action and gave notices to the encroachers to remove encroachments on the land of the Gram Panchayat. Issuance of these notices to the encroachers prompted the petitioners of SCA Nos.4825/2015, 4871/2015, 6618/2015 and 6871/2015 to approach this Court challenging these encroachment notices and these petitions were tagged and heard together from time to time.
7. Today, when the petitions were taken up for hearing, Mr. Mehul Shah, learned Senior Counsel assisted by Mr. Jenil Shah, learned advocate for the petitioners submitted that ironically when the petitioner moved the petition seeing that the illegal constructions are demolished, it was his property namely; Dharamsinh Complex, which was also demolished on 19.3.2015. He would draw the attention of the Court to the affidavit in reply filed by the Sarpanch of the Bidada Gram Panchayat dated 30.3.2015, wherein, the deponent has stated that the Page 14 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 complex of the petitioner namely; Dharamsinh Complex is constructed on Gaucher land bearing survey No.832 of village Bidada. The petitioner did not produce any documents showing his right, title and interest qua the land. According to the Panchayat, the construction was on Gaucher land, and was of a commercial nature and 7 tenants occupying the shops and offices were issued notices by the Bidada Gram Panchayat and the tenants had contended that they were only tenants of the land and on 19.3.2015 the construction was razed to the ground.
8. To this assertion in the affidavit in reply, Mr. Mehul Shah has drawn the attention of the Court to the memorandum of the petition and pointed out that it was the Bidada Gram Panchayat, who in the year 1999 had passed a resolution specifically holding that the property namely; Dharamsinh Complex was regularized on 1.2.1999 and that the Panchayat was collecting tax as the construction was carried out in accordance with the permission of the Gram Panchayat. He would also draw the attention of the Court to the proceedings of the Appellate Committee wherein the proceedings recorded that the property of the petitioner, who is now being represented through his heirs, was not registered in the encroachment register. The demolition of the property therefore on 19.3.2015, which was otherwise a legally constructed property of the petitioner of SCA No.11064 Page 15 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 of 2014 was manifestly arbitrary and the petitioner was deprived of his right to hold property and either the property be restored or the petitioner be given alternative land in compensation in lieu of the outright illegality committed by the Gram Panchayat.
9. To this submission, Mr. Munshaw would rely on the affidavit filed by the Sarpanch of the Bidada Gram Panchayat to submit that the petitioner's property namely; Dharamsinh Complex was an encroachment too and it was listed in the encroachment register from Sr. Nos.800 to 806. Attention was invited of the Court to the encroachment register. To this Mr. Mehul Shah, learned Senior Counsel would submit that the affidavit is misconceived as admittedly, the land on which Dharamsinh Complex was, it was not a Gaucher land but on Kharaba land and in proof thereof, by way of an additional affidavit dated 30.3.2015, the petitioner had stated that the land being Survey No.832 was not on Gaucher Land but an order of the Deputy Collector dated 18.12.1985 specifically showed the area to be Kharaba and was never a Gaucher land. A copy of the revenue entry no.2227 certified after due verification by the Mamlatdar, Mandvi on 16.10.1986 was produced on record. In support of his submission, Mr. Mehul Shah relied on a decision of the Supreme Court rendered in the case of Municipal Corporation of Greater Mumbai v. Thomas Methew and others reported in 2012(5) Page 16 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 SCC 799. Relying on this decision, Mr. Shah would submit that the petitioner is entitled to cost and compensation due to the highhanded action of the Gram Panchayat in demolishing the construction of the petitioner.
10. In the background of the facts narrated hereinabove and particularly an order of the Collector of 4.8.2015 wherein, pursuant to an order of this Court, the Collector has taken a decision on 11.9.2015 holding that the land is not a Kharaba land and construction on Gaucher land is an encroachment. It will be relevant to reproduce the order passed in Civil Application No.5707 of 2015 dated 4.8.2015 (Coram: C.L. Soni - J) passed by this Court. Reading the order indicates that this decision was taken because of the direction which reads as under:
"1. Learned Assistant Government Pleader Ms. Bhatt states that pursuant to the order dated 7.5.2015, the petitioner was though required to be heard by the Collector, however since consideration of the matter as regards large scale encroachment was before the competent authority, hearing could not be afforded to the petitioner by the Collector. Ms. Bhatt states that if the petitioner appears before the Collector on 10th August 2015, the Collector shall afford hearing to the petitioner and then shall take final decision on the issue as to whether the petitioner has caused encroachment on the Panchayat/ Government land. Ms. Bhatt states that it would be better if somebody from the office of the Panchayat is asked to remain present while the Collector decides the matter in connection with the construction of the petitioner.
2. Learned advocate Mr. Munshaw appearing for the Gram Panchayat states that Talati-cum-Mantri will remain present before the Collector on 10th August Page 17 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 2015.
3. Considering the fact that the alleged unauthorized construction of the petitioner is removed and since the petitioner is claiming that his construction was not on Panchayat or Government land, it would be in the fitness of things if the Collector takes final decision on the issue as early as possible but not later than one month from today.
4. It is needless to observe that during such process, on whatever material the petitioner relies, the Collector shall consider such material and then take final decision. S.O. to 15th September 2015."
11. Mr. Shah, learned Senior Counsel for the petitioner would submit that this decision also of the Collector is without application of mind.
12. Keeping in view of the submissions made by the learned advocates for the respective parties, it appears that while taking a decision in accordance with the directions issued on 4.8.2015, the claims of the petitioner based on the revenue record which are referred to hereinabove, wherein the petitioner specifically claimed ownership pursuant to the Resolutions of the Gram Panchayat and that the revenue record indicates that the land was Kharaba land, a decision on the question of ownership of the petitioner and occupation of land was not taken and the only observation that the Collector made was that the remedy was available to the petitioner under the Bombay Land Revenue Code. The competent authority therefore i.e. the Collector is directed to look into the matter once again and take into consideration Page 18 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 the records that he may produce that are on record and decide whether the petitioner was in legal occupation of the land. Such a decision will be taken by the Collector after hearing the petitioner who is now being represented by his legal heirs. The Collector shall also while considering the issue of the occupation of the land prior to it being demolished, will also adjudicate whether the petitioner if found to be in legal occupation should now be re-compensated by award of damages or allotment of alternative plot or be granted permission for reconstruction of the demolished complex. The decision shall be taken in accordance with law preferably within period of eight weeks from the date of receipt of copy of this order.
13. As far as the petitions of 2015 are concerned, namely; SCA Nos.4825/2015, 4871/2015, 6618/2015 and 6871/2015 since the encroachment right was engineered at the behest of the petitioner of SCA No.11064 of 2014 and the encroachment notices were so issued and are a subject matter of these petitions and interim reliefs were granted, the respondent Bidada Gram Panchayat will consider and take a fresh look at the legality of the occupation of these petitioners of the land in question on the basis of the records and contemporaneous documents that these petitioners will produce before the Panchayat. Based on the documents that they may produce and after giving an opportunity of hearing to the petitioners, the Page 19 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022 C/SCA/11064/2014 ORDER DATED: 22/11/2021 respondent - Bidada Gram Panchayat shall take a decision in accordance with law. The entire exercise will be undertaken and be reconsidered irrespective of the notices under challenge in this petitions and without being influenced by the orders passed by this Court on 19.3.2015 and 30.3.2015 in SCA No.11064/2014.
14. The petitioners of the petitions namely; petitions of 2015 i.e. SCA Nos.4825/2015, 4871/2015, 6618/2015 and 6871/2015 shall approach the Panchayat within a period of four weeks from the date of receipt of certified copy of this order with relevant material to satisfy the authorities on the legality of their occupation and the respondent - Bidada Gram Panchayat shall take an appropriate decision on that material within a period of four weeks thereafter without being influenced by the notices under challenge.
15. All these petitions are therefore disposed of with no order as to costs. Rule / Notice, if any, stands discharged.
16. Connected Civil Application also stands disposed of in view of disposal of the main matter.
[ BIREN VAISHNAV, J. ] *** VK Page 20 of 20 Downloaded on : Wed Jan 12 03:11:39 IST 2022