Chaudhary Ramilaben Maganbhai vs State Of Gujarat Through Secretary on 13 July, 2018

[Cites 6, Cited by 0]

Gujarat High Court

Chaudhary Ramilaben Maganbhai vs State Of Gujarat Through Secretary on 13 July, 2018

Bench: J.B.Pardiwala

        C/SCA/6630/2013                                         JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 6630 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1    Whether Reporters of Local Papers may be allowed to                  NO
     see the judgment ?

2    To be referred to the Reporter or not ?                              NO

3    Whether their Lordships wish to see the fair copy of the             NO
     judgment ?

4    Whether this case involves a substantial question of law             NO
     as to the interpretation of the Constitution of India or any
     order made thereunder ?

==========================================================
                 CHAUDHARY RAMILABEN MAGANBHAI
                              Versus
               STATE OF GUJARAT THROUGH SECRETARY
==========================================================
Appearance:
MR MEHULSHARAD SHAH(773) for the PETITIONER(s) No. 1,2
MR RAKESH PATEL, AGP (1) for the RESPONDENT(s) No. 1,2
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 4
==========================================================

 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                             Date : 13/07/2018
                             ORAL JUDGMENT

1. By this writapplication under Article 226 of the Constitution of India, the writapplicants have prayed for the following reliefs: 15(A) to issue a writ of mandamus or any other appropriate writ, Page 1 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT order or direction, directing the respondents to regularize the possession of the subplots of land of Survey No.407 of Mevad by the petitioners and to issue sanad as per the direction of the Hon'ble Division Bench issued by order dated 12.3.2008 in Special Civil Application No.10898/2006;

(B) pending admission, hearing and final disposal of this petition, be pleased to restrain the respondents from removing the construction and disturbing the possession of the petitioners of the subplots of the land bearing Survey No.407 of village Mevad, Taluka & District:

Mehsana;

(C) to award the costs of this petition;

(D) to pass such other and further orders as may be expedient and necessary in the circumstances of the case.

2. The case put up by the writapplicants in their own words as pleaded in the writapplication is as under: 2.1 The petitioners are permanent residents of a small village Mevad having population of 2000 persons, most of whom belong to Baxi Panch. The petitioners are earning their livelihood by carrying out agricultural activities and cattle breeding. The petitioners were using gamtal land of Block No.407 for tethering their cattle and keeping agricultural equipments. They have put up kachcha construction on the land admeasuring 45' x 14'.

2.2 In the year 2003, the panchayat had informed the petitioners that land of Block No.407 was earmarked for nonagricultural purpose and the said block is divided into 62 plots. The Taluka Panchayat is going to auction the said plots and sell the same to the village persons at a reasonable rate on ownership basis. Therefore, the petitioners were asked to remove their equipments and vacate the land.

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  C/SCA/6630/2013                                       JUDGMENT



2.3    Thereafter, the land of Block No.407 was divided into

different plots and they were decided to be sold to village people by holding auction. Accordingly, the first auction was held on 5.3.2004 and Notification for that purpose was published on 23.1.2004. The upset price of the land was fixed at Rs.110/ per sq.mt. However, nobody came foarward to purchase the land at such an excess rate.

2.4 Thereafter, 2nd Notification for auction of the land was published on 25.6.2004 fixing the upset price of the land at Rs.364/ per sq.mt., but that point of time also nobody had turned up to participate in the auction and not a single plot out of 62 plots had been purchased in the 2nd auction also.

2.5 Again, 3rd Notification for auction of the land of Block No.407 was published on 5.1.2005 and auction was held on 8.2.2005, wherein upset price was fixed at Rs.600/ per sq.mt. It is pertinent to note that looking to that upset price, nobody turned up to participate in the auction. Thus, it appears from the upset price fixed by the T.D.O. that the panchayat has no bonafide intention to sell the land.

2.6 As such, in view of the Government Resolution dated 3.6.1980 issued by the Revenue Department, Gujarat State, if the population of the village is around 2000, the price of the land is fixed at 0.45 ps., per sq.yard.

2.7 Thereafter, the petitioners requested the Gram Panchayat that since as per the auction proceedings, Block no.407 is divided into different plots admeasuring 14" x 45' each, such small plots may be Page 3 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT allotted to the petitioners so that the petitioners can utilize the plots for agricultural purpose as well as for tethering cattle and if reasonable price was fixed by Taluka Panchayat, they were ready and willing to pay the said price. Accordingly, all the petitioners were allotted plots of land in Block No.407 by the Panchayat and at that point of time, the petitioners had paid Rs.2000/ towards public fund. All the petitioners were permitted to put up construction on the said plots by passing resolution by the Gram Panchayat. The Gram Panchayat collected housetax and assessment of the property was also done.

2.8 Thereafter, Administrator in the place of Sarpanch of Mevad Gram Panchayat was appointed, but other elected body was in existence. Without taking into confidence of the elected members of the Gram Panchayat and without appreciating the fact that the petitioners are in possession of the land of block no.407 since last 20 to 30 years, the Administrator issued notices on 25.4.2006 under Section 105 of the Gujarat Panchayats Act to all the petitioners.

2.9 Being aggrieved by and dissatisfied with the notice dated 25.4.2006, the petitioners preferred Special Civil Application No.10898/2006 before this Hon'ble High Court. The Hon'ble Vacation Judge by order dated 17.5.2006 issued notice and granted adinterim relief in terms of para 5(B) i.e. the notice dated 25.4.2006 was stayed.

Thereafter, the State of Gujarat, District Development Officer, Mehsana and Mevad Gram Panchayat filed affidavitsinreply and the petitioners filed rejoinder stating that survey No.407 was divided Page 4 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT into various plots, out of which 12 plots had been occupied and, therefore, during the course of hearing before the Hon'ble Division Bench it was suggested that if the auction was held for the remaining 25 plots and whatever price would be fixed in the auction, that price must be paid by the petitioners or to vacate the land. The petitioners had showed their willingness to pay the price fetched in the auction. Accordingly, by order dated 20.6.2007, the Hon'ble Division Bench suggested the Government to hold auction for the remaining 25 plots.

2.10 Thereafter, auction was held and only 16 plots were put to auction by the Government and against the upset price of Rs.600/, after ranged between Rs.604 to Rs.620/ per sq.mt. The offers were received only for 9 plots and out of those, one person had not deposited the amount. So, the Government had executed Sale Certificate in favour of 8 auction purchasers at the rates ranging between Rs.604 to 620/ per sq.mt. For 8 plots. It is pertinent to note that out of 37 plots, only 8 plots have been auctioned and still 17 plots are vacant and no village persons was ready and willing to purchase the plots at the rate of Rs.600/ per sq.mt.

2.11 As per the auction, the Hon'ble Division Bench asked the petitioners to deposit the amount at the rate of Rs.600/ per sq.mt. In installments by order dated 12.3.2008. The petitioners by letter dated 24/3/2008 asked the Taluka Development Officer to measure the land and specify the amount. The TDO asked the circle officer and accordingly panchnama was carried out and individual land was measured and individual price was ascertained. The petitioners have paid full amount at the rate of Rs.600/ per sq.mt. To the Page 5 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT T.D.O., which is encashed by the Taluka Panchayat.

2.12 It is pertinent to note that in para5 of the judgment dated 12.3.2008 passed by the Hon'ble Division Bench it was recorded that the D.D.O. Mehsana and the Gram Panchayat have no objection to selling of the plots in question to the petitioners at the rate of Rs.600/ per sq.mt. And necessary documents will be executed after the petitioners pay full price. The Hon'ble Court also reserved liberty to the petitioners to apply in case of difficulty.

2.13 Thereafter, Misc. Civil Application No.1439/2008 was filed by the D.D.O. Mehsana for review mainly on the ground that neither the Gram Panchayat nor the District Panchayat has power to regularize the possession of land, but the Government has to regularize the possession of the land and the highest price fetched at the auction was Rs.620/ per sq.mt. and, therefore,the petitioners had to pay Rs.620/ per sq.mt. The Hon'ble Division Bench by order dated 2.5.2009 directed other copetitioners to pay additional amount of Rs.20/ per sq.mt., i.e.Rs.620/, in all.

2.14 So far as the case of the present petitioners (original petitioners Nos.6 & 7) is concerned, DDO had pointed out that petitioners are the wife and son of the UpSarpanch no such directions should be given in their favour. It was also stated that such a contention is also raised in SCA No.6411/2008. It is pertinent to note that on 02.05.2009 the advocate for the petitioners could not remain present at the time of hearing as matter was not listed in his board and the order was passed without hearing him and, therefore, the true and correct facts could not have been pointed Page 6 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT out to the Hon'ble Division Bench. At that point of time, the Hon'ble Division Bench observed that the case of present petitioners may not be considered during pendency of SCA No.6411/2008.

2.15 Thereafter, since the order dated 02.05.2009 was passed without hearing the advocate for the petitioners, MCA No.1564/2009 was filed with a humble prayer to review the order dated 02.05.2009. The Hon'ble Division Bench has been pleased to observe while disposing off the said review application that "this application is disposed off with a clarification that we have not passed any order adverse to Chaudhary Ramilaben Maganbhai. All that we had stated in our order dated 02.05.2009 was that the case of the above mentioned parties shall be separately considered in SCA No.6411/2008. That petition is still pending. Therefore, it will be open to any of the parties of SCA No.6411/2008 to request the concerned court to take up the matter for earlier hearing."

2.16 Thereafter, the SCA No.6411/2008 came up for hearing on 12.01.2011. The said petition was filed by one Shivabhai Abherajbhai and Sagrambhai Abherajbhai who were political rivals of the petitioners. The petitioners of said SCA No.6411/2008 sought permission to withdraw the writ petition and the petition stands disposed off as withdrawn by order dated 12.01.2011.

2.17 It is pertinent to note that no adverse order was passed in SCA No.6411/2008 and, therefore, the benefit of order dated 12.03.2008 passed in SCA No.10898/2006 is required to be extended to the present petitioners. It is respectfully submitted that in case of other copetitioners the Secretary, Revenue Department without Page 7 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT appreciating the fact that the price of Rs.620/ was fetched in the auction held by the government pursuant to the order passed by this Hon'ble High Court and the persons who have purchased the land in auction have been given land at the price of Rs.604/ to Rs.620/, passed resolution dated 29.10.2010 resolving that the land of other copetitioners would be regularized on the payment of Rs.740/ per sq.mtr. with 2 ½ times penalty. The said resolution was not passed in the case of the present petitioners. The said copetitioners have preferred SCA No.11421/2012 before this Hon'ble High Court in the month of August, 2012. The Hon'ble High Court has been pleased to issue notice and the petition is pending for hearing.

2.18 That after disposal of SCA No.6411/2018, it is incumbent upon the respondents to regularize the land of the petitioners as petitioners have already deposited the amount with the office of TDO. The petitioners have made several oral requests to the authorities to comply with the order passed by the Hon'ble Division Bench. Lastly, by an application dated 24.03.2013 petitioners requested the authorities to regularize the land and to issue Sanad of the land. But, all the efforts have gone in vain. Therefore, petitioners have no other alternative efficacious remedy but to approach this Hon'ble High Court by way of the present petition under Article 226 of the Constitution of India.

2.19 The petitioners respectfully state and submit that now it is well settled law that the Government cannot deprive any citizen of his property without following the due procedure of law. In the present case, earlier notices had been issued and the same were challenged before this Hon'ble High Court and after considering the Page 8 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT facts of the case and provisions of law, the Hon'ble Division Bench had directed the Government to hold auction and as per the auction whatever price was fetched, was directed to be deposited by the petitioners and the same have been paid by the petitioners. Therefore, it is incumbent upon the Government to issue sanad and to regularize possession of the petitioners and to end the controversy.

2.20 It is respectfully submitted that the adjoining plots, which were put to auction by the Government, fetched price ranging between Rs.604 to 620/ per sq.mt. and the Government has given plots to the auction purchasers at that price. It was clear understanding before the Hon'ble Division Bench between the petitioners and the respondents that whatever price would be fetched in the auction, must be required to be paid by the petitioners. Therefore, once the petitioners have deposited the amount at the rate of Rs.600/ per sq.mt., which is encashed by the Taluka Panchayat, then there is no question of depriving petitioners from not issuing Sanad.

2.21 It is respectfully submitted that the Government has not considered the fact that the population of the village is around 2000 people and till today other plots of Survey No.407 are lying vacant and nobody is ready and willing to purchase the same at the price of Rs.600/ per sq.mt. It is respectfully submitted that as per the Jantri rate prevailing on 1.4.1999, the price of the land was Rs.210/ per sq.mt. in Mevad village. The petitioners have also received information under the Right to Information Act and as per the information provided by the Deputy Collector, Stamp Duty Assessment Office by letter dated 18.4.2011, the rate as per the new Page 9 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT Jantri is Rs.405/ per sq.mt. for Mevad village. Therefore, it is unreasonable on the part of the Government not regularize the land of the petitioners when petitioners have paid Rs.600/ as per the directions of the Hon'ble High Court.

2.22 It is respectfully submitted that the present petitioners are also at par with the other petitioners and also at par with the persons who have purchased the land in auction. They have not received any special benefit being relatives of the UpSarpanch.

2.23 It is respectfully submitted that as such the price of the land as per Jantri value assessed by the government is very low. The Jantri value of the land on 01.04.2008 was also Rs.210/ per sq.mtr. of village Mevad and petitioners have paid the amount at the rate of Rs.600/ ascertained in the auction. It is submitted that till date 17 plots of Survey No.407 are unsold and vacant. Therefore, if two sub plots are given or regularized in favour of the present petitioners, neither the government nor the Panchayat or any village people are going to be prejudiced. If few plots are available and there is demand from more persons to purchase the same plot and if two plots are allotted to the relatives of UpSarpanch, then, government or District Panchayat are justified in raising the issue of relation with the Up Sarpanch. Suppose two plots were not allotted at the rate of Rs.600/ per sq.mtr. to the petitioners, then, they would have participated in auction and would have purchased two plots by paying auction price. Thus, when the petitioners have already paid the market price which is fetched in the auction them, they are at par with other occupants of the said plots of Survey No.407 and they are at par with the auction purchasers.

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C/SCA/6630/2013 JUDGMENT 2.24 It is respectfully submitted that in the auction proceedings the then Sarpanch of Mevad Gram Panchayat and the relatives of Shivabhai Abheraj who is political rival of the petitioners came forward to purchase the land. It is respectfully submitted that out of 8 plots 1 plot is purchased by Shivabhai Abheraj, 1 plot is purchased by Sagram Abheraj, 1 plot is purchased by Alpesh Gokalbhai who was Sarpanch of Gram Panchayat at that point of time. Till date other 17 plots are vacant and nobody came forward and are ready and willing to purchase at the rate of Rs.600/. Thus, no extra benefit has been received by the petitioners only because they are relatives of UpSarpanch Maganbhai. It is respectfully submitted that the father of the petitioner no.2 has done yeoman service to the village Mevad and when he was UpSarpanch he has removed the unauthorized constructions of several persons and therefore, due to political rivalry such issue was raised in the earlier petition. It is respectfully submitted that recently from 22.02.2013 the sister of petitioner No.2 is elected to the post of UpSarpanch in Mevad village.

2.25 It is respectfully submitted that the present petitioners have already deposited the amount at the rate of Rs.600/ since last four years. They have put up construction over the land and even Gram Sabha of the entire village has passed resolution that they have no objection if the land is regularized in favour of the petitioners at the rate of Rs.600/ or Rs.620/ as directed by the Hon'ble High Court. The petitioners have made several oral requests but, all are in vain. Thereafter the petitioners by application dated 26.03.2013 requested the authorities to regularize the land and to issue Sanad for the Page 11 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT same, but, it was told by the Taluka Development Officer that unless further direction is issued by the Hon'ble High Court, the authority will not regularize the land. Therefore, the petitioners have moved the present petition for appropriate directions.

3. Having heard the learned counsel appearing for the parties and having considered the materials on record, I need to look into few orders passed by this Court having a direct bearing on the present litigation. It all started with filing of the Special Civil Application No.10898 of 2006. The writapplicants and others questioned the legality and validity of the notice dated 25/04/2006 issued under Section105 of the Gujarat Panchayat Act.

4. On 20/06/2007, a Division Bench of this Court passed the following order: It will be open to the Government to decide whether the remaining 25 subplots in Survey No. 407 of Village Mevad of Mehsana District should be auctioned or not, and if the Government decides to auction one or more of such subplots, then the price fetched at public sale of such plot/s shall be placed on the record of this case. The subplots will be offered for sale after giving advertisement in two newspapers having wide circulation in the area and also after putting the notice on the Notice Board of the Gram Panchayat.

S. O. to 10th September, 2007. Ad interim relief granted earlier shall continue.

Direct Service is permitted.

5. Thereafter, the Special Civil Application No.10898 of 2006 came to be disposed of vide order dated 12/03/2008 in the following terms: The petitioners, eleven in number, are occupying twelve plots admeasuring roughly about 14 ft. X 45 ft. each in block No.407 in village Mevad in Mehsana taluka of Mehsana district. It appears that the Mevad Gram Panchayat had permitted th petitioners to occupy Page 12 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT these plots and had even permitted the petitioners to put up construction thereon as per the permission granted by the Gram panchayat in May 2005. When the Administrator was appointed for the Mevad Gram Panchayat, the Administrator issued eviction notice under Section 105 of the Gujarat Panchayats Act, 1993 on the ground that the land belonging to the panchayat could not be allotted in this manner without charging the market price. The petitioners thereupon filed the present petition contending that Mevad is a very small village with population of about 2000 people and that earlier when attempts were made to auction these plots, no offer was received when the upset price was fixed at Rs.110/ in January 1994, thereafter again when the upset price was Rs.360/ in July 2004 and thereafter when the upset price was Rs.600/ in February 2005.

2. When the petition came up for hearing on 20.6.2007, the following order was passed : "It will be open to the Government to decide whether the remaining 25 subplots in Survey No. 407 of Village Mevad of Mehsana District should be auctioned or not, and if the Government decides to auction one or more of such subplots, then the price fetched at public sale of such plot/s shall be placed on the record of this case. The subplots will be offered for sale after giving advertisement in two newspapers having wide circulation in the area and also after putting the notice on the Notice Board of the Gram Panchayat."

3. Mr Munshaw appearing for the Mehsana District Panchayat has today placed before us the letter from the Taluka Development Officer along with the details about the offers received for nine plots out of the 16 plots which were put to auction. As against the upset price of Rs.600/, the offers range between Rs.604 and Rs.620/. It also appears that for the remaining six plots, no offers were received and for plot No.1, the party which made the offer at the rate of Rs.614/ did not deposit the 25% amount. In short, it appears that there are willing purchasers who are prepared to purchase parcels of land in the same block at the rate of Rs.600/ or slightly higher amount per sq.mtr..

4. Mr Mehul Sharad Shah, learned advocate for the petitioners, therefore, states that the petitioners will pay the price at the rate of Rs.600/ per sq.mtr. for each of the 12 plots in the petitioners' occupation. Mr Shah further states that 25% of the purchase price shall be paid to the Taluka Panchayat, Mehsana within 15 days from today and the remaining 75% amount shall be paid to the Taluka Panchayat, Mehsana in three equal monthly installments of 25% each commencing from 15th April 2008.

5. Mr Munshaw for Mehsana District Panchayat and Mr Vipul Page 13 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT Pancholi for Mevad Gram Panchayat state that their respective clients have no objection to selling the plots in question to the petitioners at the rate of Rs.600/ per sq.mtr. and that the necessary documents will be executed after the petitioners pay the full purchase price within the above timelimit of 15th June 2008.

6. The Taluka Development Officer, Mehsana shall accept the amounts as per the above arrangement.

As and when the petitioners pay the full price as aforesaid, the impugned notices dated 25.4.2006 issued by the then Administrator of the Mevad Gram Panchayat shall stand quashed and set aside.

7. In case the petitioners fail to make payments as per this order, the respondents will be at liberty to evict the concerned defaulting petitioner from the land in question and the construction thereon without payment of any compensation.

8. The petition is accordingly disposed of in terms of the above directions and with a direction to the petitioners as well as the respondents to abide by the aforesaid statements made by their learned advocates.

Liberty to apply in case of difficulty.

Direct service is permitted.

6. It appears that the District Panchayat thereafter, preferred a Misc. Civil Application No.1439 of 2008 for review of the order passed in the Special Civil Application No.10898 of 2006. It is necessary to state that the District Panchayat thought fit to file the review application as according to the Panchayat, the two writapplicants herein are the wife and son of Maganbhai Chaudhary, who at the relevant point of time was the Deputy Sarpanch of the Mevad Gram Panchayat. The Panchayat thought fit to submit before this Court that being the family members of the Deputy Sarpanch, it would not be proper to allot plot in their favour.

7. The review application filed by the District Panchayat came to be disposed of by the Division Bench of this Court vide order dated Page 14 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT 02/05/2009 in the following terms: This is an application for review of our order dated 12.3.2008 in Special Civil Application No.10898 of 2006.

2. The petitioners in Special Civil Application No.10898 of 2006 (hereinafter referred to as the petitioners), eleven in number, were occupying twelve plots admeasuring about 14 ft. X 45 ft. each in block No.407 in village Mevad in Mehsana taluka of Mehsana district. It appears that the Mevad Gram Panchayat had permitted the petitioners to occupy these plots and had even permitted the petitioners to put up construction thereon as per the permission granted by the Gram Panchayat in May 2005. When the Administrator was appointed for the Mevad Gram Panchayat, the Administrator issued eviction notice under Section 105 of the Gujarat Panchayats Act, 1993 on the ground that the land belonging to the Panchayat could not be allotted in this manner without charging the market price. The petitioners thereupon filed Special Civil Application No.10898 of 2006 contending that Mevad is a very small village with population of about 2000 people and that earlier when attempts were made to auction these plots, no offers were received when the upset price was fixed at Rs.110/ in January 1994, thereafter again when the upset price was Rs.360/ in July 2004 and thereafter when the upset price was Rs.600/ in February 2005. Thereafter by our order dated 20.6.2007, we had indicated that it would be open to the Government to decide whether the remaining subplots in Survey No. 407 (other than the subplots occupied by the petitioners) should be auctioned or not, and if the Government decides to auction one or more of such subplots, then the price fetched at public sale of such plot/s shall be placed on the record of this petition. It was also directed that the subplots will be offered for sale after giving advertisement in two newspapers having wide circulation in the area and also after putting the notice on the Notice Board of the Gram Panchayat.

3. On 12.3.2008, the District Panchayat and the Taluka Panchayat placed on record that when 16 subplots in block No.407 were put to auction on 5.3.2008, the offers were received for only 9 subplots and as against the upset price of Rs.600/ the offers ranged between Rs.604 and Rs.620 per sq.mtr.. One of the persons who had made the offers at the rate of Rs.614/ per sq.mtr. did not deposit the requisite 25% amount for the purpose of getting the allotment. This Court, therefore, noted that there were willing purchasers who were prepared to purchase parcels of land in the same block at the rate of Rs.600 or slightly higher amount per sq.mtr.. The learned advocates for the District Panchayat and the Gram Panchayat also stated that their respective clients had no objection for selling plots in question to the petitioners at the rate of Rs.600 per sq.mtr.. The petition was Page 15 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT accordingly disposed of.

4. In the present application, the District Panchayat has prayed for review of the order mainly on the ground that the Gram Panchayat and the Taluka Panchayat or the District Panchayat have no power to regularise encroachment of the land in question and secondly that in any view of the matter when the highest price fetched at the auction was Rs.620 per sq.mtr., the plots should not be sold at the rate of Rs.600 per sq.mtr..

5. Having considered the rival submissions, it appears that if the competent authority for considering the question of regularisation is the State Government then there could be no difficulty in directing the State Government to consider the petitioners' application for regularisation upon their paying / having paid purchase price at the rate of Rs.620 per sq.mtr. which was the highest rate fetched at the public auction of the remaining subplots in the same block of land. Of course, while considering such application, the State Government will act in accordance with its policy in such matters.

6. At this stage, Mr Munshaw for the District Panchayat states that petitioner Nos.6 and 7 are the wife and son of Maganbhai Chaudhary who was at the relevant time and today also UpaSarpanch of Mevad Gram Panchayat. Since UpaSarpanch was one of the office bearers of the Gram Panchayat which had made allotment of the plots at the relevant time, no such direction should be given in favour of the wife and son of the then UpaSarpanch. It is also stated that such a contention is also raised in Special Civil Application No.6411 of 2008.

7. Since the above contention is already raised in Special Civil Application No.6411 of 2008, we do not propose to deal with the same in the present application, but we make it clear that while considering the applications of the petitioners for regularisation of the land occupied by them on which they have also put up construction, the case of petitioner Nos.6 and 7 Chaudhary Ramilaben Maganbhai and Chaudhary Rahul Maganbhai shall not be considered during pendency of Special Civil Application No.6411 of 2008.

8. In view of the above discussion, this application is partly allowed in terms of the following order : The benefit of our order dated 12.3.2008 in Special Civil Application No.10898 of 2006 shall be confined to petitioner Nos.1 to 5 and 8 to 11 (the said petitioners) and with the following modifications :

(a) the said petitioners shall deposit a further sum at the rate of Rs.20 per sq.mtr. over and above the amount at the rate of Rs.600 per Page 16 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT sq.mtr. already deposited by them with the Taluka Panchayat.

(b) Upon such deposit which shall be made within one month from today, the applications of the said petitioners shall be forwarded by the District Panchayat to the State Government for the purpose of considering regularisation of the allotments made by the Mevad Gram Panchayat to petitioner Nos.1 to 5 and 8 to 11 in accordance with the Government policy after taking into consideration that the above market price was ascertained at the public auction held in March 2008.

9. The Misc. Civil Application accordingly stands disposed of. Rule is made absolute to the aforesaid extent only.

8. As soon as the review application was disposed of, the writ applicants herein who in the earlier round of litigation were original petitioners nos.6 and 7 preferred a Misc. Civil Application No.1564 of 2009. As according to them, the order passed by the Court upon the review application of the District Panchayat was prejudicial to them. The Misc. Civil Application No.1564 of 2009 filed by the writapplicants herein came to be disposed of by the Division Bench on 10/07/2009 in the following terms:

This application is disposed of with a clarification that we have not passed any order adverse to Chaudhary Ramilaben Maganbhai and Chaudhary Rahul Maganbhai. All that we had stated in our order dated 2.5.2009 was that the case of the above mentioned parties shall be separately considered in Special Civil Application No. 6411 of 2008. That petition is still pending. Therefore, it will be open to any of the parties to Special Civil Application No. 6411 of 2008 to request the concerned Court to take up the matter for early hearing.

Depending on the outcome of the said Special Civil Application No. 6411 of 2008, it will be open to Chaudhary Ramilaben Maganbhai and Chaudhary Rahul Maganbhai to initiate appropriate proceedings if at all it becomes necessary for them to do so.

9. Thus, while disposing of the Misc. Civil Application filed by the Page 17 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT writapplicants, a Division Bench made it very clear that as one Special Civil Application No.6411 of 2008 was pending subject to the disposal of the same, it would be open for the writapplicants to initiate appropriate proceedings, if at all it would become necessary for them to do so.

10. It appears that thereafter the Special Civil Application No.6411 of 2008 came to be withdrawn by the petitioners. The order passed by the Division Bench dated 12/01/2011 reads as under: In view of the order passed by the Collector - Mehsana dated 25.11.2010, learned counsel for the petitioners sought permission to withdraw the writ petition, to which the respondents have no objection. The writ petition stands disposed of as withdrawn. Notice is discharged.

11. Thus, the Special Civil Application No.6411 of 2008 was not adjudicated on merits and the same came to be disposed of as not pressed.

12. The position as on date is that although the two writapplicants have deposited the entire amount as directed for the purpose of regularization of their possession of the plots in question, the final order of allotment has not been passed till this date.

13. In such circumstances, the writapplicants are here once again before this Court with the present writapplication.

14. This writapplication has been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the Mahesana Taluka Panchayat. An affidavitinreply has been filed on behalf of the respondent no.3 interalia stating as under: Page 18 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT I, G.B. Raval, Taluka Development Officer, Mehsana Taluka Panchayat, Mehsana, do hereby solemnly affirm and state oath that I am conversant with the facts of the case as I have perused the contentions raised by the petitioners in the memo of Special Civil Application and also, gone through the record of the office of Mehsana Taluka Panchayat and thereupon crave leave to file this short affidavit in reply to bring the correct facts on the record of the Hon'ble Court. However, the respondent No.3 craves leave to reserve its rights to file further and fuller affidavit in reply in future, if necessary, in the interest of justice.

1. The respondent No.3 most respectfully submits that the petitioners herein have preferred present Special Civil Application praying that the Respondent Authorities be directed to release the possession of Subplots of land bearing revenue Survey No.407 of village Mevad and further prayed to issue Sanad as per the the directions of the Hon'ble Division Bench of the Hon'ble High Court of Gujarat through order dated 12/03/2008 in Special Civil Application No.10898 of 2006. The respondent no.3 submits that the petitiones are not entitled to such relief as subsequent to said order dated 12/03/2008 passed in Special Civil Applicatin No.10898 of 2006 fixing Rs.600/ per sq.meter, a Misc. Civil Application No.1439 of 2008 was preferred by District Development Officer, Mehsana District Panchayat before the Hon'ble High Court of Gujarat and the same was disposed on 02/05/2009 with modifications.

2. The Respondent No.3 submits that subsequently the petitioners have preferred Misc. Civil Application No.1564 of 2009 in Misc. Civil Application No.1439 of 2008 in Special Civil Application No.10898 of 2006 and the Hon'ble Court disposed off the same through order dated 10/07/2009 with an observation that the case of Ramilaben Maganbhai Chaudhary and Rohit Maganbhai Chaudhary i.e. present petitioners be considered separately in Special Civil Application No.6411 of 2008 and it would also be open to them to initiate fresh proceedings.

3. The Respondent No.3 submits that thereafter Special Civil Application No.6411 of 2008 was withdrawn on 12/01/2011 by the concerned petitioners Mr. Shivabhai A. Chaudhary and another. In other words, insistence of the petitioners to allot the land at the rate of Rs.600/ per sq. meter on the basis of the order of the Hon'ble Court passed in Special Civil Application No.10898 of 2006 is not only without any base and substance but as such misleading.

4. The Respondent No.3 submits that as such the request of the petitioners for appropriate directions to the Respondents to issue sanath as per the order dated 12/03/2008 in Special Civil Application Page 19 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT No.10898 of 2006 is misplaced one and it is so clear from the averments made in the earlier para and the orders of the Hon'ble Court. The Respondent No.3 submits that the prayer for regularization of possession of sub plots of land bearing revenue Survey No.407 of Village Mevad may not be granted as appropriate decision are to be taken by the higher authorities and the Respondent No.3 is not the competent to decide various issues including regularization, fixation of price of land as well as issuance of sanath considering the facts and material on record.

5. The Respondent No.3 submits that subsequent to disposal of Misc. Civil Application No.1439 of 2008 in Special Civil Application No.10898 of 2006 on 02/05/2009, a letter dated 23/09/2009 was addressed by Taluka Development Officer, Mehsana Taluka Panchayat to District Development Officer, Mehsana District Panchayat giving complete details and thereafter a letter dated 05/03/2010 was addressed by the District Development Officer to higher authority. The Respondent No.3 submits that as per information a letter dated 21/07/2010 was addressed by the District Collector, Mehsana to the Under Secretary, Revenue Department, Government of Gujarat at Gandhinagar.

6. The Respondent No.3, therefore, submits that unless and until the higher authority takes appropriate decision, pursuant to order of the Hon'ble High Court of Gujarat, the prayer of the present petitioners for issuance of sanath may not be granted as no legal procedure is followed at any point of time by the competent authority in allotment of plots and the petitioners herein and others failed to point out their illegal occupation.

7. In view of the above facts and circumstances, it is crystal clear that unless and until appropriate decision is taken by the higher authority on the issue of regularization of unauthorized encroachments, present Special Civil Application may not be granted and this Hon'ble Court is therefore, humbly prayed not to grant any interim relief and reject present Special Civil Application in limine with cost in the interest of justice.

15. Mr. Rakesh Patel, the learned AGP appearing for the State respondent invited my attention to one order passed by a learned Single Judge dated 19/12/2013 in the Special Civil Application No.11421 of 2012. This order has direct nexus with the present litigation. The order reads thus: Page 20 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT

1. The petitioners are admittedly unauthorized occupants over the Government land and invoked the jurisdiction of this Court earlier by filing Special Civil Application NO. 10898 of 2006. There were about 11 petitioners and were in occupation of 12 plots admeasuring about 14x14 ft. of each in block No. 407 in village Mevad in Mehsana taluka of Mehsana district. Though land belonging to State Government, Gram Panchayat permitted the petitioners to occupy the plots and even permitted to put up construction and permission was granted by the panchayat accordingly. When the administrator was appointed for the Mevad Gram Panchayat who in exercise of powers under Section 105 of the Gujarat Panchayats Act, 1993, issued a notice/order under Section 105 on the ground that land belonging to the panchayat could not have been allotted to the petitioners in the manner without charging the market price, upon consideration of the submissions and on perusal of the record, Division Bench passed an order on 12.3.2008 in Special Civil Application No. 10898 of 2006 and relevant paragraphs No. 3, 4 and 5 are reproduced herein below:

"3. Mr Munshaw appearing for the Mehsana District Panchayat has today placed before us the letter from the Taluka Development Officer along with the details about the offers received for nine plots out of the 16 plots which were put to auction. As against the upset price of Rs.600/, the offers range between Rs.604 and Rs.620/. It also appears that for the remaining six plots, no offers were received and for plot No.1, the party which made the offer at the rate of Rs.614/ did not deposit the 25% amount. In short, it appears that there are willing purchasers who are prepared to purchase parcels of land in the same block at the rate of Rs.600/ or slightly higher amount per sq.mtr..

4. Mr Mehul Sharad Shah, learned advocate for the petitioners, therefore, states that the petitioners will pay the price at the rate of Rs.600/ per sq.mtr. for each of the 12 plots in the petitioners' occupation. Mr Shah further states that 25% of the purchase price shall be paid to the Taluka Panchayat, Mehsana within 15 days from today and the remaining 75% amount shall be paid to the Taluka Panchayat, Mehsana in three equal monthly installments of 25% each commencing from 15th April 2008.

5. Mr Munshaw for Mehsana District Panchayat and Mr Vipul Pancholi for Mevad Gram Panchayat state that their respective clients have no objection to selling the plots in question to the petitioners at the rate of Rs.600/ per sq.mtr. and that the necessary documents will be executed after the petitioners pay the full purchase price within the above timelimit of 15th June 2008."

2. Later on Misc. Civil Application No. 1439 of 2008 was filed seeking Page 21 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT review of the order dated 12.3.2008 by the District Development Officer mainly on the ground that Gram Panchayat, Taluka Panchayat and/or the District Panchayat have no power of regularizing encroachment of the land in question and the highest price fetched in auction was Rs.620/ per sq. meter. Upon consideration of above ground and after hearing the parties, the Division Bench modified its earlier order and in paragraphs 5, 6, 7 and 8 modified the order by partly allowing the above Misc. Civil Application.

"5. Having considered the rival submissions, it appears that if the competent authority for considering the question of regularisation is the State Government then there could be no difficulty in directing the State Government to consider the petitioners' application for regularisation upon their paying / having paid purchase price at the rate of Rs.620 per sq.mtr. which was the highest rate fetched at the public auction of the remaining sub plots in the same block of land. Of course, while considering such application, the State Government will act in accordance with its policy in such matters.

6. At this stage, Mr Munshaw for the District Panchayat states that petitioner Nos.6 and 7 are the wife and son of Maganbhai Chaudhary who was at the relevant time and today also UpaSarpanch of Mevad Gram Panchayat. Since UpaSarpanch was one of the office bearers of the Gram Panchayat which had made allotment of the plots at the relevant time, no such direction should be given in favour of the wife and son of the then UpaSarpanch. It is also stated that such a contention is also raised in Special Civil Application No.6411 of 2008.

7. Since the above contention is already raised in Special Civil Application No.6411 of 2008, we do not propose to deal with the same in the present application, but we make it clear that while considering the applications of the petitioners for regularisation of the land occupied by them on which they have also put up construction, the case of petitioner Nos.6 and 7 Chaudhary Ramilaben Maganbhai and Chaudhary Rahul Maganbhai shall not be considered during pendency of Special Civil Application No.6411 of 2008.

8. In view of the above discussion, this application is partly allowed in terms of the following order : The benefit of our order dated 12.3.2008 in Special Civil Application No.10898 of 2006 shall be confined to petitioner Nos.1 to 5 and 8 to 11 (the said petitioners) and with the Page 22 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT following modifications :

(a) the said petitioners shall deposit a further sum at the rate of Rs.20 per sq.mtr. over and above the amount at the rate of Rs.600 per sq.mtr. already deposited by them with the Taluka Panchayat.

(b) Upon such deposit which shall be made within one month from today, the applications of the said petitioners shall be forwarded by the District Panchayat to the State Government for the purpose of considering regularisation of the allotments made by the Mevad Gram Panchayat to petitioner Nos.1 to 5 and 8 to 11 in accordance with the Government policy after taking into consideration that the above market price was ascertained at the public auction held in March 2008.

(c) The case of petitioner Nos.6 and 7 shall be separately considered in Special Civil Application No.6411 of 2008.

2.1. Thus, the petitioners were directed to deposit the amount @ of Rs.20/ per sq. meters in addition to Rs.600/ already deposited and the applications of the petitioners were to be forwarded by District Panchayat to the State Government for considering regularization of the allotments made by Gram Panchayat in accordance with the Government policy after taking into consideration the above market price which was ascertained in the public auction held in March, 2008. Even an attempt was made by filing a contempt application being Misc. Civil Application No. 1425 of 2010 by the petitioners for alleged noncompliance by the State Government of the above order and accordingly direction was given that decision shall be given by the State Government within a period of six months from the date namely, 26.7.2010 passed in the above proceedings.

3. Accordingly on 29.10.2010, the Department of Revenue, upon consideration of all relevant facts and circumstances of the case and as per the policy of the Government decided to order regularization on conditions namely, Rs.740/ per sq. meter was fixed towards market price and whenever regularization of unauthorized encroachment is made such encroachment is to be regularized by charging 2 ﾽ times of the market price of the land so encroached.

4. The above order and subsequent notices issued by the respondents is now under challenge by the petitioners on the ground that charging of 2 ½ times of penalty, for which, no provisions are available and further as per the order passed by the Division Bench the petitioners have already deposited Rs.620/ per sq. meter of the land no further amount could have been charged and order of regularization of unauthorized encroachment ought to have been passed without Page 23 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT charging the amount of penalty. Inter alia, it is submitted that all consequential action for alleged nonpayment of 2 ½ times of penalty and determination of Rs.740/ per sq. meters for market price also deserves to be quashed and set aside. As the petitioners belong to a particular strata of the society and carrying out agricultural activities and cattle breeding and using gamthal land of Block No. 407 direction issued by the State authority to make the payment as per th order impugned in this petition though earlier market price was ascertained by way of public auction which was in any case not more than Rs.620/ per sq. meter. The action impugned is not only unjust, unwarranted, arbitrary but also discriminatory and accordingly deserves to be quashed and set aside. It is submitted that by quashing and setting aside the impugned orders/notices respondents be directed to regularize possession over the land and pass the order accordingly.

5. Learned AGP would however contend that as such regularization of unauthorized occupation over the Government land cannot be ordered but in the facts and circumstance of the case and upon an order passed in review application permitting the petitioners to make an application through District Panchayat, the State Government has taken decision in accordance with law and, therefore, order passed directing the petitioners to pay the market price along with 2 ½ times penalty cannot be said to be in any manner illegal. It is further submitted that the land initially was under the head of Gauchar and later on converted by District Collector, Mehsana by order dated 26.2.1989 as a gamthal and therefore, also in view of Government Resolution dated 29.10.2010 when such land is to be regularized provisions is prescribed for charing 2 ½ times penalty.

6. Upon consideration of submissions, perusal of the record including the orders impugned and notice issued by Mamlatdar in exercise of powers under Section 61 of Bombay Land Revenue Code, 1879, I find no substance in any of the contentions raised by learned advocate for the petitioners inasmuch as the very first order dated 26.2.1989 passed by District Collector, Mehsana of deleting the head of gauchar namely, pasture land and vesting into gamthal was not only illegal but contrary to Government Policy. So far as allotment of land of Gram Panchayat and permitting them to construct over the land admittedly belonging to the Government for which the administrator incharge of Gram Panchayat has exercised the jurisdiction under Section 105 of the Gujarat Panchayat Act, 1993 that under no circumstances the land belonging to the Government could have been alloted by passing resolution and intervention shown by the Division Bench of this Court was to the extent of permitting petitioners to make application through District Development Officer but liberty for all purpose was reserved with the State Government to consider regularization in accordance with law. In the above circumstances, when District Page 24 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT Development officer has forwarded the applications and order is passed on 29.10.2010 upon consideration of market price charging penalty of 2 ½ times on the basis of continuous occupation of the petitioners of use of the Government land, I do not find any arbitrariness or any unreasonableness in exercise of such powers.

6.1. Ordinarily, unauthorized encroachment over the land of State Government, under no circumstances be ordered to be regularized but exception was carved out in facts of this case by a Division Bench of this Court and issued certain directions. Unauthorized encroachment over the Government land is an anathema for administration for about last two decades where in a systematic manner and modus adopted by encroacher to grab the land belonging to the Government which remained either unattended or unoccupied and later on seeking direction for regularization either from the competent Court or forum upon payment of charges. Any such direction by the High Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India permitting unauthorized encroachment would amount perpetuation of illegality, to which this Court will not be a party.

7. In absence of merit, this petition is rejected. Stay granted earlier stands vacated. Notice discharged.

16. Having regard to the entire history of the litigation, this writ application is disposed of with a direction to the State Government in its Revenue Department to pass appropriate orders as regards the regularization by asking the writapplicants to deposit the amount at the market price prevailing as on date alongwith 2½ times penalty. This will be in accordance with the policy of the State Government. The amount, which has already been deposited by the writapplicants, shall be adjusted while calculating the final amount with penalty that may be fixed. While taking an appropriate decision in this regard, the State Government shall also keep in mind its Government Resolution dated 08/01/1980, more particularly, when it comes to regularizing encroachment alleged to have been made by a member of the Baxi Panch or Socially and Economically Backward Class. Let appropriate decision be taken in this regard within a period of two months from the Page 25 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019 C/SCA/6630/2013 JUDGMENT date of the receipt of the order.

17. With the this writapplication is disposed of. Direct service is permitted.

(J.B.PARDIWALA, J) aruna Page 26 of 26 Downloaded on : Mon Aug 19 09:40:53 IST 2019

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