Gujarat High Court
Hitendra Gangaram Modi vs State Of Gujarat & 5....Opponent(S) on 9 December, 2014
Author: R.P.Dholaria
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/WPPIL/254/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 254 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE
MR. VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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HITENDRA GANGARAM MODI....Applicant(s)
Versus
STATE OF GUJARAT & 5....Opponent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Applicant(s) No. 1
MR UTKARSH SHARMA, ASST.GOVERNMENT PLEADER for Opponents No.
1,3 and 4
MR HS MUNSHAW, ADVOCATE for the Opponent(s) No. 2 , 5
MR SAURABH M PATEL, ADVOCATE for the Opponent(s) No. 6
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Page 1 of 5
C/WPPIL/254/2014 JUDGMENT
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 09/12/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. This writ petition in the nature of Public Interest Litigation has been filed by the petitioner ventilating the grievance that the lands of survey nos. 450, 451 and 448/2 paikee, situated at village Vav, Taluka-Satlasan, District-Mehsana have been encroached upon by the villagers even though the land is earmarked for gaucher purpose.
2. It is alleged that since the authorities are not taking action, this petition in the nature of Public Interest Litigation has been filed praying to remove the encroachments made upon the aforesaid lands.
3. We have heard Mr. Dipak R. Dave, learned counsel for the petitioner, Mr. Utkarsh Sharma, learned AGP for respondent nos. 1,3 and 4, Mr. H.S. Munshaw, learned counsel for respondent nos. 2 and 5 and Mr. Saurabh M. Patel, learned counsel for respondent no.6.
4. This Court on 15th October, 2014, issued notices to the respondents and directed the respondents to state as to whether the land in question wherein encroachment is alleged to have been made belonged to the State Government or not. In pursuance of such notice issued by this Court, the respondent nos. 4 and 5 have filed affidavits-in-reply. Respondent no.4 in para-5 of its affidavit-in-reply, has stated as under:
Page 2 of 5C/WPPIL/254/2014 JUDGMENT "5. I say and submit that as far as encroachment on survey no. 450 and 448/2/1 paiki of village Vav, Taluka Satalsana, District:Mehsana is concerned, the same has to be removed by the concerned Panchayat as the said parcels of lands are undisputedly Gaucher lands. However, as far as the land bearing survey no. 451 is concerned, there was some confusion created because of wrong entry being made in 7/12 extracts during the computerization process. While verifying the complete set of records, it is came to our attention that entry no. 199 was mutated in the form no. 6 disclosing the said land as Government Waste land and subsequently to that, till date there is no entry mutated in form no. 6 with reference to the said parcel of land. I say and submit that as far as the 7/12 extracts are concerned, on verifying the previous hand written entries and the latest computerized entry, it appears that because of some bona fide mistakes, the land was wrongly disclosed as Gaucher land. However, on considering original record and the situation as on today, it is not in dispute that survey no. 451 is Government waste land and the same is not a Gaucher land. The entries mutated in the form no.6 and 7/12 extracts are annexed herewith and marked as Annexure-I."
5. Respondent no.5 in paras 2 and 3 of its affidavit-in-reply has stated as under:
"2. The Deponent most respectfully submits that he is holding the post of Taluka Development Officer, Satlasana Taluka Panchayat with effect from 1.7.2014. It is stated that much prior to filing of the present Writ Petition, the issue of encroachment on the Gaucher land of Village Vav, Taluka Satlasana, District Mehsana is under active consideration of authorities at different levels.
The Deponent submits that there are complaints about encroachments on revenue survey No. 448/2, 450 & 451 of Village Vav. It is submitted that revenue survey No. 448/2 and 450 of Village Vav admeasuring 1 Hectare 59 R.A. [sic.] and 86 sq.meters as well as 0 Hectare, 25 R.A. [sic] & 29 sq.meters originally are meant for Gaucher while revenue survey No. 451 admeasuring 0 Hectare, 30 RA.[sic.] & 35 sq.meters is Government waste land. It is further submitted that the Gaucher land is administered by Vav Gram Panchayat while Government waste land is under administrative control and supervision of Page 3 of 5 C/WPPIL/254/2014 JUDGMENT Mamlatdar, Satlasana. The respondent no.5 submits that as per the provisions of Section 105 of Gujarat Panchayat Act, 1993 it is bounden duty of Gram Panchayat to protect public properties and to take necessary actions against wrong doers as provided under the Act. The Respondent No.5 submits that as per the information gathered by him, at present there is encroachment on in all 1318 sq.meters of Gaucher land.
3. The respondent No.5 submits that in past the matter is taken up with all seriousness by his predecessor also. It is submitted that a letter dated 27.8.2013 was addressed by the then Taluka Development Officer, Satlasana Taluka Panchayat to Circle Inspector of Taluka Panchayat reminding him to provide details about encroachments or to face the consequences and a copy of letter is annexed herewith and marked as Annexure-A. It is submitted that thereafter through a letter dated 18.10.2013 certain details and information were made available to the District Development Officer, Mehsana District Panchayat and copies of letter as well as statement indicating encroachments are annexed herewith and marked as Annexure-B collectively. It is pertinent to note that even measurement sheets made available by District Inspector of Land Record, Mehsana with regard to revenue survey No. 448 [Paiki]-1 and 450 of Village Vav were not exhaustive and therefore, even a letter to that effect was addressed by the District Inspector of Land Record to the respondent No.3 on 5.8.2014 and copy thereof is annexed herewith and marked as Annexure-C. The respondent No.5 submits that even Circle Inspector of Taluka Panchayat was instructed on 20.8.2014 to prepare complete details and a copy thereof is annexed herewith and marked as Annexure-D. It is pertinent to note that much prior to that even Talati-cum-Mantri of Vav Gram Panchayat was also addressed a letter on 28.7.2014 and a copy thereof is annexed herewith and marked as Annexure-E."
6. We have heard the learned counsel for the respective parties. On going through the materials available on record, it is clearly revealed that out of the aforesaid three survey numbers, the lands of two survey numbers are gaucher land and one is the govt. waste land. It appears that during the course of inquiry, as per the inspection carried out by the Taluka Development Officer in Page 4 of 5 C/WPPIL/254/2014 JUDGMENT pursuance of the notice issued by this Court it was revealed that about 1318 sq.mts of gaucher land has been encroached upon by the villagers. It is further revealed that in view of the provision of Section 105 of the Gujarat Panchayat Act, 1993 ["the Act" for short], the concerned Vav Gram Panchayat is competent to remove the encroachments alleged to have been made by the villagers upon the gaucher land after affording reasonable opportunity of hearing to the encroachers and upon failure of the Gram Panchayat to do, Taluka Panchayat is competent to take such action.
7. In view of the aforesaid factual position, it clearly reveals that the aforesaid land admeasuring 1318 sq.mts of gaucher has been encroached upon by the villagers which is required to be removed under section 105 of the Act by the competent authority by following due procedure of law and by affording reasonable opportunity of hearing to the concerned encroachers.
8. We, therefore, direct the Vav Gram Panchayat and Taluka Panchayat to undertake the aforesaid proceeding in accordance with law as expeditiously as possible for removal of such encroachments from the land in question.
9. In view of the aforesaid direction, the petition is finally disposed of. No order as to costs.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) pirzada Page 5 of 5