Gujarat High Court
Mohan vs Development on 18 June, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/12030/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12030 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MOHAN
MORARBHAI AHIR & 7 - Petitioner(s)
Versus
DEVELOPMENT
COMMISSIONER & 4 - Respondent(s)
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Appearance
:
MR NK
MAJMUDAR for
Petitioner(s) : 1 - 8.
GOVERNMENT PLEADER for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 5.
MS SEJAL K
MANDAVIA for Respondent(s) : 3,
MS PREETI S PARMAR for
Respondent(s) : 5,
MR SV PARMAR for Respondent(s) :
5,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/06/2010
CAV
JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order or direction quashing and setting aside the inaction on the part of the concerned authorities in taking appropriate steps for removal of illegal construction / encroachment made by the respondent No.5 upon the Gamtal land.
The petitioners have also prayed for appropriate writ, order or direction directing the concerned respondents authorities to take appropriate steps/action for removal of illegal construction put up by respondent No.5 upon the Gamtal land as per the resolution dated 10.10.2008 passed by the village Panchayat, Timberva in the prescribed time limit.
2. The facts leading to filing of the present Special Civil Application in nut-shell are as under:
According to the petitioners, the respondent No.5 who was Sarpanch of the village Timberva has encroached upon the Gamtal land and as no action was taken by the respondents authorities despite various representations/applications, petitioners preferred the Special Civil Application No.28998/2007 by way of PIL before this Court praying that the respondents authorities may be directed to take appropriate actions for removing illegal construction put up by the respondent No.5 upon the Gamtal land. That during the pendency of the said PIL being Special Civil Application No.28998/2007, the village Panchayat, Timberva passed resolution on 10.10.2008 being Resolution No.5/1 by which it was resolved to initiate proceedings for removal of illegal construction put up on the land in question and to make it open. That in view of the resolution dated 10.10.2008 passed by the village Panchayat, Timberva , the Division Bench of this Court dismissed the said petition vide order dated 14th November 2008 by observing that since the Gram Panchayat has already passed resolution for removal of illegal construction put up by the respondent No.5, we find it unnecessary to keep this PIL pending. The respondent authority shall take appropriate action in accordance with law. The PIL is dismissed. It appears that as thereafter for considerable long time, no further steps were taken to remove the illegal construction, pursuant to the resolution dated 10.10.2008, petitioners preferred the Miscellaneous Civil Application No.1836/2009 praying for taking appropriate steps against the concerned respondents under the Contempt of Courts Act. However, as no time limit was fixed by the Division Bench while dismissing the aforesaid PIL, the Division Bench dismissed the said application. That thereafter the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs.
Shri Majmudar, learned advocate appearing on behalf of the petitioners has vehemently submitted that as such the respondent No.5 has illegally encroached upon the Gamtal land and has put up the construction illegally and now even the resolution was passed by the Panchayat on 10.10.2008, which was produced before the Division Bench in the aforesaid PIL, however, despite the aforesaid resolution, no further steps have been taken by the concerned respondents for removing/demolishing the illegal construction put up by the respondent No.5 and not making the land open. It is submitted that once the resolution has been passed by the Panchayat and when the Division Bench while dismissing the PIL observed that the concerned authority shall take steps to remove the illegal construction in accordance with law, it is the bounden duty of the concerned respondents to remove the illegal construction and get the land open.
It is further submitted that if the Panchayat is not taking any action , it is the duty of the Taluka Panchayat and District Panchayat to take steps to remove the illegal construction and/or compel the Gram Panchayat to take steps to remove the illegal construction. It is submitted that by not taking any action of removing the illegal construction made by the respondent No.5 on the Gamtal land, the authorities have failed to perform their statutory duty cast under the Gujarat Panchayat Act, more particularly, Section 105 of the Gujarat Panchayat Act, 1993. Therefore, it is requested to allow the present Special Civil Application by directing the concerned respondents to remove the illegal construction and encroachment made by the respondent No.5 on the Gamtal land and to get the land open by removing the respondent No.5 from the land in question.
3. Shri S.V. Parmar, learned advocate appearing on behalf of the respondent No.5 has submitted that in view of the report submitted by the Taluka Development Officer, Choryasi prepared pursuant to the order dated 16th December 2009 passed by this Court, the land in question is Ghar kachha land / mafi kachha land / vada land, which can be regularized by the appropriate authorities. Therefore, it is submitted that if any action is taken to remove the respondent No.5 and demolished the construction, in that case, the right in favour of the respondent No.5 to get the possession/encroachment regularized will be taken away. It is submitted that the present Special Civil Application has been filed by the petitioners with an oblique/malafide intention and to take political revenge and therefore, it is requested not to entertain the present petition.
Ms. S.K. Mandavia, learned advocate has appeared on behalf of the respondent No.3, Taluka Development Officer, Choryasi and affidavit-in-reply is also filed by the Taluka Development Officer, Choryasi. Ms. Mandavia, learned advocate appearing on behalf of the Taluka Development Officer, Choryasi has placed on record the report of the Taluka Development Officer, Choryasi prepared pursuant to the order dated 16th December 2009 passed by this Court, which has been prepared after giving an opportunity to the respondent No.5 also. She has also produced on record the notice dated 30th January 2010 issued under Section 105(2) of the Gujarat Panchayat Act, 1993 by the Taluka Development Officer, Choryasi directing the respondent No.5 to remove illegal construction and encroachment of 123 sq.meters of land which is made by the respondent No.5 on the Gamtal land / vada land. It is submitted that by aforesaid notice dated 30th January 2010, the respondent No.5 has been directed to remove the illegal construction and the encroachment by order dated 10th February 2010 failing which further step shall be taken by the Taluka Development Officer, Choryasi to remove the encroachment and illegal construction by the respondent No.5. Therefore, it is requested to pass appropriate order.
4. Heard learned advocates appearing for respective parties at length. It is not in dispute that the Gram Panchayat, Timberva passed a resolution dated 10th October 2008 by which it was resolved to take steps to remove the illegal construction and the encroachment made by the respondent No.5. It is also not in dispute that as the Gram Panchayat passed a resolution, the Division Bench disposed of/dismissed the PIL under the hope that as the Panchayat has already passed a resolution, further steps shall be taken in accordance with law. It is to be noted that even in the order dismissing the PIL, the Division Bench has specifically observed that further steps shall be taken in accordance with law. Though the said resolution has been passed in the month of October 2008, no steps were taken by the Panchayat for whatever reasons and therefore, the petitioners have preferred Special Civil Application. This Court passed the order dated 16th December 2009 directing the Taluka Development Officer to hold necessary inquiry with respect to the status of the land in question and/or how the land in question came to be entertained into assessment register. This Court passed the following order on 16th December 2009
1. In the facts and circumstances and for determination of present Special Civil Application, this Court is of the opinion that if Taluka Development Officer is directed to hold necessary inquiry with respect to status of land in question and/or how land in question came to be entered into assessment register, it will facilitate decision in the present petition.
2. Under the circumstances, stand over to 12.01.2010. In the meantime, Taluka Development Officer, Choryasi is hereby directed to hold necessary inquiry with respect to status of land in question; how land in question came to be entered into assessment register and what was the status of land in question prior to land in question came to be entered into assessment register. Same shall be done after giving opportunity to respondent no.5, petitioners as well as Gram Panchayat. On the next date of hearing, Taluka Development Officer, Choryasi to submit report before this Court.
5. Pursuant to the aforesaid order dated 16th December 2009, the Taluka Development Officer, Choryasi has held the necessary inquiry as ordered by this Court and has submitted the report after giving opportunity to respondent No.5 as well as Gram Panchayat, Timberva and has specifically opined and submitted the report that the respondent No.5 has made illegal construction and has encroached upon the Gamtal land / vada land. The said report has not been challenged by the respondent No.5. Even thereafter the Taluka Development Officer, Choryasi has taken further steps and issued the notice dated 30th January 2010 upon the respondent No.5 under Section 105(2) of the Gujarat Panchayat Act, 1993 directing the respondent No.5 to remove the unauthorized and illegal construction and the encroachment made by the respondent No.5 on 123 sq.meters of Gamtal land. The respondent No.5 has been directed to remove the encroachment and construction on or before 10th February 2010. It appears that the said notice is also not challenged. It is the contention on behalf of the respondent No.5 that it is ghar kachha land / mafi kachha land and therefore, the encroachment of the respondent No.5 can be regularized. It is disputed by the respondent No.5 that the land in question is a Gamtal land. Be that as it may, whether it is Gamtal land or not, admittedly the land in question is not of the ownership of the respondent No.5 and the respondent No.5 has encroached upon 123 sq.meters of land and has made illegal construction for which even the Gram Panchayat has passed resolution dated 10.10.2008 and thereafter even the Taluka Development Officer, Choryasi has also issued the notice under Section 105(2) of the Gujarat Panchayat Act, 1993 on 30.01.2010. The respondent No.5 has neither challenged the report of the Taluka Development Officer, Choryasi nor the resolution of the Panchayat dated 10.10.2008 and even the notice dated 30.01.2010 issued by the Taluka Development Officer, Choryasi under Section 105(2) of the Gujarat Panchayat Act. As stated above, the Division Bench dismissed the PIL as in the meantime Panchayat passed a resolution to remove the illegal construction and the encroachment made by the respondent No.5. It appears that to get out of any order to be passed by the Division Bench in PIL and only with a view to make a show, the Panchayat passed resolution dated 10.10.2008. Be that as it may the fact remains that respondent No.5 has made illegal construction and has encroached upon the Gamtal land and has no right to continue with illegal construction and occupation of the Gamtal land and therefore, a direction is required to be issued upon the concerned respondents to remove illegal construction and encroachment made by the respondent No.5 and take final steps on the notice dated 30th January 2010 issued by the Taluka Development Officer, Choryasi under Section 150(2) of the Gujarat Panchayat Act, 1993.
6. In view of the above and for the reasons stated above, the present petition succeeds. The concerned respondents, more particularly, the Taluka Development Officer, Choryasi is hereby directed to remove the illegal construction and unauthorized occupation and encroachment made by the respondent No.5 on the Gamtal land as per the notice dated 30th January 2010 within a period of four weeks from today and submit the report before this Court. Rule is made absolute to the aforesaid extent.
(M.R. Shah, J.) *menon Top