Gujarat High Court
Popatbhai Ranchhodbhai Jadvani vs District Development Officer & 5 on 17 April, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/6800/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6800 of 2015
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POPATBHAI RANCHHODBHAI JADVANI....Petitioner(s)
Versus
DISTRICT DEVELOPMENT OFFICER & 5....Respondent(s)
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Appearance:
MS. KITTY S MEHTA, ADVOCATE for the Petitioner(s) No. 1
MS SHRUTI PATHAK AGP for the Respondent(s) No. 1-6
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 17/04/2015
ORAL ORDER
1. Heard Mr. Thakkar, learned advocate for the petitioner and Ms. Pathak, learned AGP for the respondent State.
2. In present petition, the petitioner has prayed, inter alia, that:
"8(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction to quash and set aside the notice/order dated 23.03.2015 passed by the Mandava village panchayat as the same is arbitrary, illegal, null and void and against the well settled principles of natural justice as well as the evidence produced on record;Page 1 of 8 C/SCA/6800/2015 ORDER
(B) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction to quash and set aside the communication dated 09.03.2015 passed by the Taluka Development Officer, Gadhada, the respondent no.2 herein bearing no.TP/JAMIN/VASHI/35/2015 as the same is arbitrary, illegal, null and void and against the well settled principles of natural justice as well as the evidence produced on record;"
3. Learned advocate for the petitioner submitted that the impugned notices and decisions by the respondent authorities are contrary to the scheme of the Act, more particularly the provision under section 105 of the Act, which is invoked by the respondent authorities for issuing the impugned notices. Learned advocate for the petitioner submitted that the land in question is private land in a housing society. The petitioner is owner and occupier of one of the plots (in the said housing society) which is adjoining the common plot.
3.1 On the allegation that the petitioner has put Page 2 of 8 C/SCA/6800/2015 ORDER up certain construction which encroaches upon the common plot, some proceedings were instituted by issuing notice to the petitioner in 2009. In the said proceedings, dispute with regard to measurement of the plots arose in light of the petitioner's defence that it has not put up construction beyond his own plot, much less the common plot and has not caused encroachment. The respondent authorities were of different view and opinion.
Therefore, the proceedings and the controversy continued.
In view of petitioner's objections, proceedings remained pending before the authorities.
Though, at one stage, certain directions by the Taluka Development Officer and District Development Officer directing the Panchayat and Talati to remove encroachment were passed, until now, any action does not appear to have been taken.
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In the meanwhile, proceedings before learned Civil Court came to be initiated. The learned Civil Court has passed certain orders on which learned advocate for the petitioner relied. 3.2 In this background, the impugned communications are issued.
3.3 The impugned communications are issued by way of notice to the petitioner.
4. As mentioned earlier, serious dispute with regard to measurement of plot and as to whether the construction is actually put up over common plot or it is within limits of petitioner's plot are involved in the matter.
4.1 Besides this, the petitioner has also opposed the proceedings on the ground that even if the allegation that the disputed construction is put up over common plot was to be entertained, then Page 4 of 8 C/SCA/6800/2015 ORDER also, the common plot being part of housing society, would continue to remain private land for which provisions under section 105 of the Act cannot be invoked and Panchayat cannot take any actions in respect of private land.
Of course, the said provision also enables the respondent authorities to take action in those cases where disputed construction "contravenes any conditions subject to which any permission as aforesaid is given or the provisions of any bye-law made in relation to any such projections....".
5. In brief, the matter involves various disputed issues of fact which the competent officer of the respondent authority can examine on verification of the disputed construction of the site and it would not be feasible or practicable to decide such aspects in writ petition more so when the complainant is not impleaded in the petition.
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6. In this background, it is necessary to mention that the petitioner seems to have submitted an application to DILR for measurement of his own plot as well as common plot so that it can be determined as to whether any encroachment over common plot is caused or not.
According to the petitioner, the said application is pending before the DILR.
According to the petitioner, in the said application, the petitioner has also declared and stipulated that if on the basis of measurement by DILR, it is concluded that any part of construction put up by the petitioner encroaches over the common plot, then, the petitioner shall take necessary corrective measures and remove such construction.
Mr. Thakkar, learned advocate for the petitioner, also submitted that an application / representation dated 31.3.2015 is submitted to the respondent authorities and the same is Page 6 of 8 C/SCA/6800/2015 ORDER pending before Sarpanch / Talati.
7. In this background, it appears that present petition can be disposed of, at this stage without calling the respondents at this stage to answer the petition, with following observations:-
7.1 The respondent authorities will take into consideration the petitioner's objections raised in light of the scope of section 105 of the Act and also with regard to the application dated 23.3.2015 and the application dated 10.4.2015 for measurement of the plots. After considering the said applications and taking decision with regard to petitioner's representation dated 31.3.2015, the respondent authorities will record the findings (which will be provided to the petitioner) as to whether the construction put up by the petitioner caused encroachment over the common plot or not, and thereafter, take Page 7 of 8 C/SCA/6800/2015 ORDER appropriate and requisite actions in accordance with law.
Since the order is passed without calling the respondents to answer the petition, it will be open to the respondents to take out appropriate application if they need any modification in the order.
With aforesaid observations and direction, present petition stands disposed of.
Direct service is permitted today.
(K.M.THAKER, J.) kdc Page 8 of 8