Gujarat High Court
Ruksana Salim Patel vs State Of Gujarat on 23 November, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/191/2018 ORDER DATED: 23/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 191 of 2018
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RUKSANA SALIM PATEL
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR IMTIYAZ I MANSURI(9159) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP (99) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3,4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 23/11/2021
ORAL ORDER
1. Heard Mr. Imtiyaz I. Mansuri, learned counsel for the petitioner, Mr. Meet K. Thakkar, learned AGP for the respondent No.1 - State of Gujarat, Mr. H.S. Munshaw, learned advocate for respondent Nos.2, 3 and 4. Though served, nobody appears for respondent No.5.
2. The prayer in this petition is that the respondent No.3 - TDO must be directed to immediately and forthwith remove the construction carried out by respondent No.4 - Gram Panchayat, Kanthariya as per sub-section (7) and (8) of Section 105 of the Gujarat Panchayats Act, 1993.
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C/SCA/191/2018 ORDER DATED: 23/11/2021
3. It is the case of the petitioner that the respondent No.5 has encroached the public road of the village and built a shop and washroom. The case of the petitioner is that the respondent No.5 has encroached the land about 114.70 square meters. Notices had been issued to the respondent No.5 to remove such encroachment for which no action has been taken either by the competent authority i.e. DDO or TDO.
4. An affidavit in reply has been filed on behalf of the respondent No.2 - DDO, Bharuch District Panchayat. Reading of the reply indicates that the Gram Panchayat is empowered to remove and take action against the public property under Section 105 of the Act. Necessary instruction had been issued to the TDO for removal of encroachment. The affidavit of the Sarpanch - respondent No.4 for whom Mr. Munshaw appears and which is filed on 14.10.2021 makes a necessary reading. Reading of the affidavit indicates that the blatant attitude of the respondent No.5 who has thought it fit not to appear. Page 2 of 4 Downloaded on : Wed Jan 12 03:35:00 IST 2022
C/SCA/191/2018 ORDER DATED: 23/11/2021 Relevant paragraph Nos.4 to 7 of such affidavit read as under:
"4. It is most respectfully submitted that the residential house of respondent No.5 is adjacent to a cattle shed of the present petitioner and it is located in the Gam Tal area of village Kanthariya. The respondent No.5 encroached upon a part of Gamtal land and put up construction of Toilet as well as covered a part of land by way of putting partition and the copies of Sketch as well as a form indicating encroachment by respondent No.5 are annexed hereto and marked as Annexture R1 Colly. It is stated that the said encroachments were removed on 9.1.2018 by the Gram Panchayat and the copies of Rojkam as well as photographs are annexed hereto and marked as Annexture R2 Colly.
5. The respondent No.4 submits that thereafter respondent No.5 had again put up encroachment and partition and the same were removed on 22.2.2021 and copies of Rojkam, photographs and letter dated 23.2.2021 addressed to the respondent No.3 are annexed hereto and marked as Annexture- R3 colly.
6. The respondent No.3 craves leave to state that however respondent No.5 has again encroached upon the Gamtal land by way of putting partition and therefore, a notice dated 13.10.2021 is issued and the copy thereof is annexed hereto and marked as Annexture-R4.
7. The respondent No.4 craves leave to state that the said encroachments are again removed on 14.10.2021 and copies of Rojkam and photographs are annexed hereto and marked as Annexture-R5 colly."
5. This averments as referred to herein-above indicate Page 3 of 4 Downloaded on : Wed Jan 12 03:35:00 IST 2022 C/SCA/191/2018 ORDER DATED: 23/11/2021 that it seems that respondent No.5 is repeatedly coming back and encroaching the land of the Panchayat after action for removing them is taken. That respondent No.5 has thought it fit not to enter appearance lends credence to the intention of respondent No.5 in avoiding adverse orders.
6. Keeping in view the fact that the affidavit of the Sarpanch indicates that notices have been issued to respondent No.5 on 13.10.2021 for removal of encroachment, respondent Nos.2, 3 and 4 are directed to see that the encroachments made by the respondent no.5 and which is the subject matter of the notices issued by the competent authorities are complied with within a period of six weeks from the date of receipt of writ of this order.
7. With the above direction, the petition stands disposed of. Direct Service is permitted. No costs.
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