Gujarat High Court
Nilesh Ratilal Parmar & vs District Development Officer & 9 on 13 August, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/12024/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12024 of 2014
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NILESH RATILAL PARMAR & 1....Petitioner(s)
Versus
DISTRICT DEVELOPMENT OFFICER & 9....Respondent(s)
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Appearance:
MR KASHYAP R JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 2
MS. JYOTI BHATT AGP for the Respondent(s) No. 10
MR MJ MEHTA, ADVOCATE for the Respondent(s) No. 3
MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No. 4 - 9
MS SEJAL K MANDAVIA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 13/08/2015
ORAL ORDER
1. By the present petition filed under Article 226 of the Constitution of India, the petitioners have sought for following directions in paragraph No. 8 of the petition:-
"8. The petitioners, therefore, most humbly pray that:
(A) YOUR LORDSHIP be pleased to admit this petition and allow it by issuing writ of Mandamus and or any other appropriate writ, order or directions in nature of Mandamus and direct the respondent no. 1 to 3 to perform their legal duty by exercising their powers u/s. 105 of Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Aug 14 13:21:53 IST 2015 C/SCA/12024/2014 ORDER the Gujarat Panchayats Act, 1993 for removing the obstructions and encroachment made by the owners i.e. respondent no. 4 to 9 of Block No. 791, 793, 788 and 789 on the public street/road through their houses at Village- Kunvarda, Taluka-Mangrol, District-Surat.
(B) YOUR LORDSHIP be pleased to pass an order to call for a progress report from Respondent No. 1 to 3 or any other appropriate order in this regard during the pendency of this petition and then, till the final disposal of this petition.
(C) YOUR LORDSHIP be pleased to grant any other just and proper relief in the interest of justice and equity.
2. The case of the petitioners is that the respondent Nos. 4 to 9 who are the owners of the lands bearing survey Nos. 791, 793, 788 and 789 of village-Kunvarda, Taluka- Mangrol have encroached upon the public road which is forming part of the gamtal land and the respondent Nos. 1 to 3 have failed to discharge their legal duties by not taking action for removal of encroachment from the public road.
3. With the petition, the petitioners have placed on record some documents in support of the allegations made in the petition. It appears that by affidavit-in-reply filed on behalf of the respondent Nos. 4 to 9, it is pointed out that Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Aug 14 13:21:53 IST 2015 C/SCA/12024/2014 ORDER there is no encroachment made by them as alleged in the petition and that it is incorrect to say that there existed public road of 11 meters of width which is stated to be narrowed down to 2 to 3 meters width.
4. Pending the petition, when it was pointed out that encroachment as alleged on the public road could be known only on carrying out of the measurement of the lands of respondent Nos. 4 to 9 and of surrounding area by the office of District Inspector of Land Record, the Court called upon to learned AGP Ms. Jyoti Bhatt to ascertain whether such measurement was carried out after the Panchayat requested for carrying out such measurement, Ms. Bhatt stated that it was on account of objections raised by the respondent Nos. 4 to 9, the District Inspector of Land Record could not carry out the measurement. But, then, learned advocate Mr. Purohit on instruction from respondent Nos. 4 to 9 fairly agreed for taking of measurements of the lands of the respondent Nos. 4 to 9 and of surrounding land including the gamtal land.
5. It was thereafter, the District Inspector of Land Record, Surat, carried out the measurements of the lands of respondent Nos. 4 to 9 as also the lands forming part of the gamtal and prepared the sketch and also recorded statement of the person in whose presence, the measurement was Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Aug 14 13:21:53 IST 2015 C/SCA/12024/2014 ORDER carried out and the panchanama prepared. Such sketch drawn with statement dated 22.07.2015 and the panchanama of the even date are placed on record of this petition.
6. However, the grievance raised by Mr. Joshi for the petitioners is that the District Inspector of Land Record has not taken measurement of the public road existed on the gamtal road. Mr. Joshi submitted that originally, there existed public road of the width of 11 meters but then it has been narrowed down to 3, 5, 7 meters at different stages of road on account of encroachments made by construction of the houses by the respondent Nos. 4 to 9 and the other village people.
7. Learned advocate Mr. Purohit appearing for the respondent Nos. 4 to 9 submitted that there is no public document or no other evidence to show that there existed ever a public road of 11 meters of width as alleged by the petitioners.
8. Though, it is found stated in the panchanama dated 28.12.2010 at Annexure 'A' collectively at page No. 56 that there was a public road having the width for passing two bullock carts simultaneously, however, such is stated only in the panchanama and except this, there appears to be no record placed to show that there was ever a public road of the width of 11 meters.
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9. It is under these circumstances, learned advocates appearing for the parties suggest that let a competent authority examine whether there existed ever a public road of the width of 11 meters on the gamtal land of Kunvarda village.
10. In above such view of the matter, the Court finds that it would be in the fitness of things if the competent authority like Taluka Development Officer examines the matter to find out as to whether there existed ever a public road of 11 meters of width on the gamtal land of village-Kuvarda or if public road of width of 11 meters was not there, then of which width there existed a public road on the gamtal land and to find out whether there is any encroachment on the public road. For such purpose, the petitioners may place the copy of this petition with all the documents annexed with this petition before the Taluka Development Officer and may also place any other material if the petitioners so find out to support their case before the Taluka Development Officer and Taluka Development Officer may treat the copy of such petition with annexures as representation and take the help of the record of the Gram Panchayat and of any other public record if available and may examine and decide as to whether there existed ever a public road on the gamtal land of 11 meters width and if not then of what width of the road was and whether there Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Aug 14 13:21:53 IST 2015 C/SCA/12024/2014 ORDER is any encroachment on such public road or not.
11. The Taluka Development Officer may complete such exercise within a period of six months from the date, the petitioners places the copy of the petition with annexures before him with other documents on which they rely.
12. It will be open to the respondent Nos. 4 to 9and even the Gram Panchayat to appear and represent their case before the Taluka Development Officer.
13. It is needless to observe that after the above exercise is over, if the Taluka Development Officer finds any encroachment on the public road, necessary action shall be taken in accordance with law.
14. At the instance of learned advocates for the parties, it is clarified that this Court has not gone into the merits of the case.
15. The petition stands disposed of accordingly. Notice discharged. Direct service is permitted.
(C.L.SONI, J.) ajay gupta Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Aug 14 13:21:53 IST 2015