Gujarat High Court
Ratilal Shankerbhai Patel Since ... vs State Of Gujarat & 4 on 27 July, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/9026/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9026 of 2014
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RATILAL SHANKERBHAI PATEL SINCE DECEASED THROUGH
HEIRS....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
DECESED LITIGANT, ADVOCATE for the Petitioner(s) No. 1
MR KEYUR A VYAS, ADVOCATE for the Petitioner(s) No. 1.1 - 1.8
MR. JANAK RAVAL, AGP for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 - 3
MR YOGESH G KANADE, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1 , 4
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 27/07/2015
ORAL ORDER
1. By the present petition filed under Article 226 of the Constitution of India, the petitioner has challenged notice dated 21st June, 2014 at Annexure 'K' issued by the respondent No. 4Gram Panchayat and the order dated 20th June, 2014 at Annexure 'L' passed by the respondent No. 1.
2. It appears that pursuant to the order dated 31.08.2013 passed by the District Panchayat imposing penalty of Rs. 8,235/ upon the petitioner for breach of the condition of Non agriculture permission (N.A. permission) and also Page 1 of 6 C/SCA/9026/2014 ORDER for removal of unauthorized construction allegedly made by the petitioner, the Gram Panchayat issued first notice dated 04.01.2014 under Section 105(1) of the Gujarat Panchayats Act, 1993 (for short "the Act") and thereafter issued further notice dated 21st June, 2014, which is challenged in the present petition.
3. It further appears that before the Gram Panchayat issued further notice dated 21st June, 2014, the petitioner had preferred revision application under Section 259 of the Act before the State Government challenging the first notice dated 04.01.2014 issued by the Panchayat in pursuance of the order dated 31.08.2013 passed by the District Panchayat.
4. Learned advocate Mr. Vyas submitted that by order dated 20.06.2014 at Annexure 'L', the revisional authority has confirmed the entire order dated 31.08.2013, the effect whereof is that the other part of the order made by the District Panchayat imposing penalty upon the petitioner got confirmed with notice dated 04.01.2014 issued by the Gram Panchayat. However, on perusal of the revision application preferred by the petitioner at Annexure 'F', it appears that the petitioner had challenged the notice dated 04.01.2014 issued by the Panchayat under Section 105 of the Act, which was stated to have been issued in pursuance of the order dated Page 2 of 6 C/SCA/9026/2014 ORDER 31.08.2013 passed by the District Panchayat.
5. In such view of the matter, it could be said that the Revisional Authority while rejecting the revision application by its impugned order has confirmed order dated 31.08.2013 passed by the District Panchayat insofar as the District Panchayat had ordered to remove the unauthorized construction allegedly made by the petitioner.
6. Mr. Vyas then submitted that Section 105 of the Act provides for removal of encroachment or obstruction or unauthorized construction. However, before taking any action under Section 105 of the Act, the Panchayat is required to follow the procedure as laid down under Rule 55 of the Gujarat Panchayats (Procedure) Rules, 1997 ('the Rules') which reads as under:
"55. Procedure for taking action under subsection (5) of section 104 or sub section (2) of section 105. (1) Before taking action under subsection (5) of section 104 in respect of its clause 9b) (alteration or demolition of erection or reerection) or before taking action mentioned in subsection (2) of section 105 (removal of obstruction or encroachment etc.) the person against whom the action is proposed shall be given seven clear days notice to show cause why the proposed action should not be taken giving details of actions desired to be taken by such person, failing which the action proposed (details to be given in the notice) shall Page 3 of 6 C/SCA/9026/2014 ORDER be taken by the panchayat.
(2) Such notice shall clearly mention last date of his reply in writing to be delivered to the Panchayat and also the date, time and place where he will be given a personal hearing before the panchayat meeting.
(3) The panchayat shall after considering the written reply and personal hearing, decide the action to be taken by a resolution at such meeting and a copy of the same shall be served upon the person concerned with notice to comply accordingly with seven days, failing which decision of the panchayat shall be implemented at his cost and risk.
(4) The panchayat shall after the expiry of seven days from the date of service of such notice under subrule (3), take action as per subsection (5) of section 104 or subsection (2) of section 105, as the case may be.
(5) Notice under subrule (1) and (3) shall be served, personally to the person concerned or any adult member of his family residing with him or by affixing at his residence or place of business or by post by Registered letter A.D. if he resides out of the village panchayat area.
7. As per above provisions of Rule 55, even after the notice is issued under Section 105, the Gram Panchayat is still to follow the procedure contemplated under Rule 55, i.e. of giving opportunity to the petitioner to reply to the notice and to give opportunity of personal hearing.
Page 4 of 6 C/SCA/9026/2014 ORDER8. Learned advocate Mr. Kanade appearing for respondent No. 5 submitted that under Rule 55, if the Panchayat is required to afford personal hearing to the petitioner, the petitioner may avail of such opportunity before the Panchayat.
9. In view of the above, Mr. Vyas does not press the present petition at this stage, with a liberty to file reply before the Panchayat against the notice issued to the petitioner under Section 105 of the Act.
10. The petitioner may file such reply before the Gram Panchayat within a period of seven days from today. If the petitioner files such reply within a period of seven days, it will be then for the Panchayat to follow further procedure of giving him personal hearing on the notice issued to the petitioner under Section 105 of the Act and finalize the action taken against the petitioner.
11. The petition is, accordingly, disposed of as not pressed with a liberty to the petitioner to file reply to the notice within the time stipulated and with a direction to the Gram Panchayat to follow the procedure as contemplated under Rule 55 of the Rules including giving of opportunity of personal hearing to the petitioner.
Page 5 of 6 C/SCA/9026/2014 ORDER12. Notice discharged. Interim relief if any stands vacated.
13. It is observed that the Panchayat may decide the action initiated under Section 105 reads with Rule 55 of the Rules against the petitioner independently and in accordance with law.
Direct service is permitted.
(C.L.SONI, J.) ajay gupta Page 6 of 6