Gujarat High Court
Ambuja Cements Ltd - Through Authorized ... vs Gohil Ni Khan Gram Panchayat on 3 December, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9286 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 8661 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 or any order made thereunder ? ========================================================== AMBUJA CEMENTS LTD - THROUGH AUTHORIZED SIGNATORY Versus GOHIL NI KHAN GRAM PANCHAYAT & 4 other(s) ========================================================== Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 1 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 5 GOVERNMENT PLEADER(1) for the Respondent(s) No. 5 MR KP CHAMPANERI(5643) for the Respondent(s) No. 2 MR PS CHAMPANERI(214) for the Respondent(s) No. 2 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3,4 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 03/12/2021 COMMON CAV JUDGMENT
1. Both these petitions were heard together as in Special Civil Application No.8661 of 2013 and in Page 1 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 Special Civil Application No.9286 of 2014, the controversy is common.
2. In Special Civil Application No.8661 of 2013, the prayers read as under:
"8A. That this Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction quashing & setting aside the allotment order dated 10.11.2006 out of Gauchar land of the petitioner village panchayat in favour of the Respondent Company or pass necessary order of forfeiture of land as the company has committed breach of conditions of allotment order by holding that the Company has committed material breach of conditions attached to the allotment order dated 10.11.2006 annexed as Annexure-B to the present petition.
8B. That this Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction quashing & setting aside the impugned orders passed by respondent No.1 dated 22.6.2012 and be pleased to appropriately modify the order of the respondent No.2, passed on June, 2010, whereby, be pleased to restrain the respondent No.3-Company from putting up any further construction with regard to its Corridor - Road Project Ambujanagar to Mul Dwarka."
3. Special Civil Application No.8661 of 2013 is filed by the Gohilni Khan Gram Panchayat through its Sarpanch Shri Bhikhabhai Kalabhai Gohil challenging the order dated 22.06.2012 passed by Page 2 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 the State in Revision Application No.30 of 2010, whereby, the order of the Collector of June 2010 in Case No.3301 of 2006 was confirmed. It is a case of the petitioner that the orders are unjust.
4. Facts in brief are as under:
4.1 On 01.07.2004, the respondent no.3-Company i.e. Ambuja Cement Limited gave an undertaking in favour of the Gram Panchayat to purchase land and hand over to the Panchayat in lieu of Gauchar land being allotted to it. Pursuant to such undertaking, the Collector, Junagadh by an order dated 10.11.2006 allotted land admeasuring 7H-53A-
57Sq.Mtrs. of the Gauchar land vested in Gohilni Khan Gram Panchayat to the company. Such land was allotted for the purpose of construction of a conveyor belt road from Ambuja Nagar to Mul Dwarka. Several conditions were attached to the order, one of which was that on allotment of such land, the company will handover the land in the alternative as the Panchayat was already short of the Page 3 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 Gauchar land. The case of the petitioner is that the company committed breach thereof.
4.2 The case of the petitioner further is that though permission from the Gujarat Pollution Board was not extended, the construction activity of the road was carried out as a breach of such condition. A meeting was held by the review committee on 26.07.2011 which was attended by the Government Authorities and the various NGOs wherein, it was specifically found that though the cement company was not allotted any Gamtal land or land over a water body, the company made change in the road lining and constructed the road contrary to the conditions stipulated in the order dated 10.11.2006 and it was therefore decided to initiate proceedings against the company. The case of the petitioner is that while constructing the road, the permission under Section 65 of the Bombay Land Revenue Code was not obtained and therefore the District Development Officer wrote a letter to the Taluka Development Officer informing of such breach on 09.11.2012. The Page 4 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 company was expected to construct the road of 9 kms whereas the company constructed the road of 13 kms. A notice was issued by the Collector, Junagadh on 02.12.2008 to the company that it committed breach of conditions nos.4 and 5. The stand of the company was that it was very difficult to purchase an agricultural land in lieu of Gauchar land and stand on its commitment to handover alternative pieces of land and that the company had obtained permission to purchase agricultural land on 15.01.2008 bearing Revenue Survey No.30, 47, 178/2/paiki and 178/2/paiki of Gohilni Khan. It appears that the Collector thereafter by the impugned order of June 2010 passed an order holding that there was a breach of condition no.4 and thereby imposed a penalty of 40 patts on respondent no.3 company and directed the company to purchase the remaining land and hand it over to the petitioner Panchayat within three months of the order. The case of the petitioner is that the Panchayat is in shortage of land and in deficit of Page 5 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 Gauchar land and is facing a lot of difficulty and by the breach of condition the company damaged the existing Gauchar land and encroached the Gamtal and the ponds of the Village Panchayat. Revision earlier was filed being Revision Application No.82 of 2007 by the petitioner Sarpanch challenging this order of allotment made in the year 2006 which was dismissed on 28.12.2011 on the ground that the allotment order was made pursuant to an order of the Government and therefore the Revenue department could not sit in revision over the order. On the Collector imposing 40 patts fine on the respondent no.3 company, the Panchayat went in revision before the State which by the impugned order dated 22/25.06.2012 confirmed the order of the Collector. Hence, this petition.
5. During the pendency of the petition, an order dated 28.07.2015 was passed by the respondent State Authority which was challenged by way of an amendment to the petition by way of which the order of regularization was passed in favour of the Page 6 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 company.
6. As far as Special Civil Application No.9286 of 2014 is concerned, for a parcel of land which was allotted by the Collector of the several areas which were so allotted and which were subject matter of challenge in Special Civil Application No.8661 of 2013, the Gohilni Khan Gram Panchayat on 18.06.2014 issued a notice under Section 105 of the Gujarat Panchayats Act asking the Ambuja Cement Company to remove the encroachment on land being Survey No.136A paiki 1. Aggrieved by this notice, the cement company came by way of Special Civil Application No.9286 of 2014 for quashing and setting aside this notice.
7. Heard Mr.Maharshi Patel learned advocate for H.L.Patel Advocates learned advocate for the petitioner in Special Civil Application No.9286 of 2014, Mr.Meet Thakkar, learned Assistant Government Pleader for the State-respondent, Mr.P.S.Champaneri, learned advocate for Page 7 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 respondent No.2 in SCA. 9286 of 2014 and Mr.Siraj Gori, learned advocate for petitioner in SCA No. 8661 of 2013.
8. The case of the company in Special Civil Application No.9286 of 2014 was that the initiation of proceedings under Section 105 of the Act inter-alia holding that the company had committed breach and the corridor and the road was changed without permission of the Panchayat and that the encroachment was illegal inasmuch as pursuant to the orders of the Collector and of the Revisional authority which are subject matter of challenge in Special Civil Application No.8661 of 2013, the fine was being imposed and a regularization order has been passed subsequently in July 2015. The facts here also would indicate that by an order of 01.07.2004 on a request made by the company for allotment of land for construction of a corridor from Ambuja Nagar to Mul Dwarka, the following survey numbers and the area of lands were allotted to the petitioner company:
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C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 Sr. Survey Nature of Area of Land Area of No. No. Land demanded land 1 2 Gauchar 5-88-63 0-72-00 2 28 Gauchar 2-94-91 0-74-40 3 29 Gauchar 3-41-29 0-48-00 4 77 Gauchar 2-44-97 0-01-64 5 134 Gauchar 4-13-83 0-76-20 6 134/1 Gauchar 1-10-59 0-21-68 7 135 Gauchar 9-00-19 0-98-85 8 136/A-1 Gauchar 25-19-72 3-53-60 9 136/A-1 Gauchar 25-19-72 0-07-20
9. The case of the company is that the company carried out construction according to the conditions made therein, a meeting was held with the Collector and the petition at the hands of the Panchayat is nothing but an outcome of litigious mentality of the Sarpanch Shri Bhikhabhai Kalabhai Gohil who and his wife when she was a Sarpanch continued to harass the company by engineering litigation against the company. It is the case of the company that even earlier a revision was filed viz. Revision application No.82 of 2007 which was rejected.
Special Civil Application No.8284 of 2007 was filed by the wife of the Sarpanch which was dismissed on Page 9 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 the ground of it being filed as an abuse of process. Suits have been filed by the Panchayat. It is the case of the petitioner that in meeting that was held on 26.07.2011, Bhikhabhai Kalabhai Gohil - the petitioner of Special Civil Application No.8661 of 2013 was present with the representatives wherein it was agreed that the breach of conditions be regularized. A second meeting was held on 29.08.2011 and a specific no objection of Bhikhabhai Kalabhai Gohil was recorded that if the company constructs the road outside the extended Gamtal and asks for the suggestions, the Panchayat had no objection to the same. In proof of such consideration, the petitioner company has annexed the minutes of meeting. Accordingly it is the case of the petitioner of Special Civil Application No.9286 of 2014 that the notice of the Gohilni Khan Gram Panchayat under Section 105 of the Act must be set aside. In Special Civil Application No.9286 of 2014 the State Government has filed the reply. It will be in the fitness of things to reproduce the chronology Page 10 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 of events explained by the State:
"a. Pursuant to a Resolution of 1st April 2006 passed by the State Government of Gujarat, and consequently the Order of 10th November 2006 passed by the then Collector of Junagadh, the Petitioners were permitted to construct the road subject to fulfillment of all the conditions stipulated therein.
b. The road was constructed and ready, despite the fact that certain conditions, like Condition No.4 stipulated in the order of 10th November 2006 passed by the then Collector of Junagadh, was not honoured by the Petitioners in its entirety. c. By and under an Order of 21st June 2010 passed by the then Collector of Junagadh, (Annexure 'H' to Special Civil Application No.8661 of 2013) it was held that due to breach of Condition No.4 stipulated in the Order of 10th November 2006, penalties are sought to be imposed. At this stage, it is perhaps relevant to note that the Petitioners are still in breach of the said Condition No.4 stipulated in the Order of 10th November 2006 together with the penalties imposed by the Order of 21 st June 2010. In short, the Petitioners have yet to fulfill the condition by purchasing approximately 5 hectares of land as agreed and granting it to the people whose land has been occupied by the Petitioners' construction of the road.
d. Thereafter, as it was found and noticed that the constructed road was passing through a 'Gamtal Plot' and a nearby pond, at two different places, the Gohilnikhan Gram Panchayat by its meeting of 29th August 2011 with the then Collector of ?Junagadh, resolved to permit the company to slightly alter the routes so as not to affect the use of the 'Gamtel Plot' and the pond.
e. These routes were altered and the plans passed Page 11 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 by the District Inspector of Land Records (DILR) in November 2012.
f. Accordingly, a proposal for the alteration of the road and the change in plans was sent to the State Government of Gujarat for their approval, by the then Collector of Junagadh, vide his letter of 1 st July 2013. Hereto annexed and marked as Annexure 'A' is a copy of the said letter/darkhast dated 1 st July 2013.
g. The State Government of Gujarat replied to the then Collector of Junagadh, by their letter of 6 th December 2013 that an opinion and/or a clarification was required with respect to the subject matter thereof, as a litigation in respect thereof was pending in the High Court of Gujarat, viz. Special Civil Application No.8661 of 2013 preferred by Gohilnikhan Gram Panchayat. Hereto annexed and marked as Annexure 'B' is a copy of the said letter dated 6th September 2013.
h. After the bifurcation of the Junagadh Collectorate, August 2013 Respondent No.4 herein once again after stating all the facts have once again called for approval of the proposal for alteration of the road to the State Government of Gujarat vide his letter of 13th March 2014. Hereto annexed and marked as Annexure 'C' is a copy of the said letter/darkhast dated 13th March 2014. i. Lastly, it is a matter of record, that the altered route/road has been constructed by the Petitioners and is in use by them today despite the fact that certain conditions have yet to be fulfilled as agreed upon by them, and as stated herein above.
10. Having heard the learned advocates for the respective parties, what appears on the basis of the Page 12 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 chronology of events is that the Ambuja Cement Company was allotted certain areas of land viz. Gauchar land of which a tabulated form has been reproduced herein above while dealing with the facts of Special Civil Application No.9286 of 2014. That allotment was made subject to conditions of the order made by the Collector on 10.11.2006. It is the case of the petitioner - Bhikhabhai Kalabhai Gohil, Sarpanch of the Gohilni Khan Gram Panchayat of Special Civil Application No.8661 of 2013 that though condition no.4 of the order particularly stipulated that the company would allot alternative lands so as to overcome the deficit of the Gauchar land which was allotted to the company, the company had committed breach thereof and not allotted any other land in exchange as stipulated in the condition and therefore the land allotted to the Ambuja Cement Company ought to be restored to the Panchayat. The orders of the Collector and that of the Revisional Authority i.e. the State dated 22.06.2012 are bad in law inasmuch as though the Page 13 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 orders record admittedly breach of the conditions by the company, rather than restoring the land to the Gram Panchayat, the authorities thought it fit to impose fine of 40 patts.
11. Mr.Siraj Gori learned counsel for the petitioner in Special Civil Application No.8661 of 2013 would submit admittedly that when the NOC was obtained, it is evident that the GPCB was of the clear opinion and so was the Talati-cum-Mantri that the corridor project was situated at the distance of 300 meters from the actual site of land. There was blatant breach of the conditions on which the land was allotted, the company had changed the alignment of the road without the permission, that the land which the company is claiming to have purchased in lieu of exchange allotment to the Panchayat was still in possession of the original owner and not allotted to the Gram Panchayat and therefore there was no reason why the prayers of the Panchayat to restore the lands to the Panchayat be not considered. Page 14 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021
12. Per-contra Mr.Maharshi Patel appearing for the Ambuja Cement company in both these petitions by relying extensively on the pleadings in Special Civil Application No.9286 of 2014 would submit that the petitioner of Special Civil Application No.8226 of 2013 himself had participated in the proceedings wherein by minutes recorded on 26.07.2011 and 29.08.2011, on a plan approved by the District Inspector of Land Records when the company prepared two alternatives, the petitioner of Special Civil Application No.8226 of 2013 was present and expressly gave his no objection to the alternative of the constructions and therefore it is now not open to turn around and claim that the land be restored with the Gram Panchayat.
13. In the petition at the hands of the company wherein notice of removal encroachment is challenged, it has been extensively pointed out as to the number of litigations as to the Panchayat entered into with the company. To the draft amendment tendered in Special Civil Application No.8661 of 2013, an Page 15 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 affidavit in reply was filed by the company and it is relevant to reproduce the contents of that affidavit which would indicate that the petition filed at the hands of Gohilni Khan Gram Panchayat need not be entertained for the facts set out in the affidavit affirmed by the company. Post the affidavit of the State filed in February 2015, the affidavit of the company is filed on 15.12.2015. Para 4 of the affidavit reads as under:
"(4) I say and submit that, before dealing with other contentions of the draft amendment application, I would like to bring certain facts to the knowledge of this Hon'ble Court which are dealt by the answering respondent in its affidavit in reply filed from time to time to highlight the mentality and litigious behavior of the petitioner who is the only person against the said project of answering respondent. The answering respondent has already submitted on record the documentary evidence which are proving the case of answering respondent. However, for the ready reference the answering respondent is respectfully submit as under:
(a) The answering respondent before starting its project of construction of Road and Corridor from its factory to Mul-Dwarka with a view to reduce the traffic on the State Highway, an application was made to grant a land to construct a Road and Corridor passing through various villages including the Gohil ni Khan village. It is to be noted that the petitioner Gram Panchayat itself has passed a resolution No.7 dated 01.07.2004 and gave consent to handover certain land for the construction of Page 16 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 Road and Corridor which is passing through village Gohil ni khan. The copy of the said resolution is attached at page No. 253.
(b) It is to be noted that on passing of above said resolution by the Gram Panchayat the present petitioner has started litigation and filed Special Civil Application No.10591 of 2004 before this Hon'ble Court for restricting the Authority from allotting the lands of the said Gram Panchayat for the construction of the Road and Corridor. In the said petition the Hon'ble Court had directed the Authority to take final decision after hearing the petitioner.
(c) Thereafter, in the year 2006 the Collector Junagadh has passed order to allot certain lands after hearing the present petitioner. During the course of hearing the authority has given enough opportunity to the petitioner and finally passed an order dated 10.11.2006 to the answering respondent for construction of the Road and Corridor. The copy of the said order is attached at page No.254.
(d) In the year 2007, the present petitioner has filed Civil Suit No.25 of 2007 before the Civil Judge, Veraval with a view to restrain the answering respondent from construction of Road and Corridor.
The said Civil Suit was dismissed for default vide order dated 05.08.2011.
(e) Thereafter, again in the year 2007, the petitioner has approached the Special Secretary, Revenue Department (Appeals) by way of filing Revision Application No.82 of 2007 against the order passed by the Collector, Junagadh dated 10.11.2006 which was disposed by rejecting the application of present petitioner vide order dated 28.12.2011. It is to be noted here that the petitioner has not challenged the said order till date before this Hon'ble High Court.
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(f) In the meantime the Panchayat body has been changed and the wife of the present petitioner became Sarpanch of Gram Panchayat and therefore, in the year 2007 the Special Civil Application No.8284 of 2007 was filed BY Smt. Hansaben Bhikhabhai Gohil in the capacity of Sarpanch against the order passed by the Collector granting land to the answering respondent for the construction of the Road and Corridor. It is evident that the present petitioner and his wife are of litigations mentality as the wife has approached this Hon'ble Court and simultaneously, the husband approached the Revenue authorities for the same subject matter. It is to be noted that in the year 2008 the said SCA was rejected by this Hon'ble Court with the observation that the said petition is abuse of process of Law. Against this order there is no further proceeding initiated by the petitioner.
(g) The wife of the present petitioner in the capacity of Sarpanch at the relevant point of time filed one more litigation against the said project of answering respondent i.e. Regular Civil Suit No.90 of 2010, though the application of present petitioner before the revenue authority i.e. Revision Application No.82 of 2007 on the same subject matter was pending. It is to be noted that the said suit is still pending before the Court of Hon'ble Civil Judge.
(h) Due to above said series of litigation and answering respondent was not in a position to purchase the privet land hand over to the State Government for allotment to Gram Panchayat as per the condition of allotment order dated 10/11/2006. Therefore, then Sarpanch and wife of the present petitioner - Smt. Hansaben Bhikhabhai Gohil has filed an application for breach of condition before the Collector, Junagadh. On the bases of said complaint the Collector Junagadh has imposed the penalty in the year 2010. Being aggrieved by and feeling dissatisfied with the order of the Collector, Page 18 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 then Sarpanch Smt. Hansaben Bhikhabhai Gohil has filed a Revision Application No.30/2010 before the Secretary, Revenue Department (Appeals) in which it was decided by the Secretary, Revenue Department (Appeals) that the order passed by the Collector, Junagadh on June, 2010 is proper and does not require any interference.
(i) Again the Panchayat body has been changed and the present petitioner and husband of Smt. Hansaben Bhikhabhai Gohil become Sarpanch therefore, being aggrieved by the order passed by the learned Secretary, Revenue Department (Appeals), Shri Bhikhabhai Kalabhai Gohil being Sarpanch of Gram Panchayat filed the present petition for quashing and setting aside the allotment order dated 10/11/2006 of the land for the construction of the Road and Corridor to the answering respondent as the answering respondent has committed breach of conditions of the allotment order and the same is not considered properly by both the authorities below i.e. the revisional authority as well as the Collector.
(5) I say and submit that the petitioner files the present petition with an oblique motive to plead certain facts that are not averred in the applications below i.e. in the revision before the revisional authority and also before the Collector. It is pertinent to note that by way of this petition, the petitioner has tried to gather all the facts by stating all the facts of other applications and suits filed by him or his wife and has very cleverly portrayed a picture as if the answering respondent Company is in habit of breaching conditions of the allotment of the land for the purpose of the construction of the Road and Corridor, but the petitioner has divulged from the main grievance that was raised by him before the authorities below that the answering respondent Company has breached the condition No.4 of the order of the Collector of providing the equivalent land to the Gram Panchayat. Therefore, Page 19 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 the petitioner, by way of the present petition, has tried to mislead the Hon'ble Court as if the answering respondent Company is sitting over the land allotted to him though they have breached the conditions. In my respectful submission, I would say that the say of the petitioner that the equivalent land is not transferred in the name of the Gram Panchayat is completely false and the current status is that the total land which was allotted to the answering respondent company for construction of the Road and Corridor, the equivalent proportion of land is already handed over by the answering respondent Company to the State Government. (6) I say and submit that initially, at the time of allotting the land in the year 2006, the map was prepared and the possession was handed over by the Circle Officer on the basis of the maps prepared by the DILR and the Road and Corridor was not passing through the village pond as well as the Gamtal land. A copy of the said Rojkam and map is produced at Page 63 of Special Civil Application No.9286 of 2014. Subsequently, when the dispute was taken up by the Gram Panchayat pursuant to the Road and Corridor passing through the village pond and the Gamtal land, a joint meeting was conducted on 26.7.2011 and it was decided in the said meeting that the answering respondent will produce two options for by-passing the Road and Corridor from Gamtal land and village pond. Accordingly, on 29.8.2011, second meeting was conducted by the then Collector, Junagadh along with other officers of revenue and Mining Geology Department and in that meeting, new proposed by-pass Road and Corridor was approved. It is to be noted here that in both the meetings, the petitioner - Mr.Bhikhabhai Kalabhai Gohil was remained present and gave his consent for the change in alignment of the Road and Corridor . The answering respondent Company, on the basis of the outcome of the joint meeting dated 29.8.2011, applied before the Mamlatdar, Kodinar on 11.10.2011 to pass necessary order and Page 20 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 regularize the change in alignment of the Road and Corridor. It is to be noted that because of such litigious and anti-development attitude of the petitioner in his personal as well as in the capacity of the Sarpanch filed various litigations and applications before the various Hon'ble Courts, Government agencies and therefore, because of such applications, the answering respondent Company could not procure the land to be handed over to the Gram Panchayat in time because as a private party, there are many procedures under the revenue laws which have to be complied with by the answering respondent to hand over the said lands to the Gram Panchayat.
14. Reading of the affidavit would indicate that the petitioner of Special Civil Application No.8661 of 2013 is in the habit of engaging in litigations. Firstly, a Civil Suit No.25 of 2007 was filed by the petitioner of Special Civil Application No.8661 of 2013 which was dismissed for default on 05.08.2011. In the year 2007, a Revision Application was filed which was dismissed on 28.12.2011. After the Panchayat body changed and then the wife of the petitioner of Special Civil Application No.8661 of 2013 became the Sarpanch she filed a Special Civil Application No.8284 of 2007 which was rejected and the Court observed that the petition was nothing but Page 21 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 an abuse of process of law. Once again a Civil Suit No.90 of 2010 was filed on the same subject matter and which at the relevant time in 2015 was pending. Another revision being Revision Application No.30 of 2010 which is a subject matter of challenge in the present petition being Special Civil Application No.8661 of 2013 was filed. The affidavit in reply at the hands of the company would indicate that Gram Panchayat under the guise of portraying that the company has been in the habit of breaching conditions of allotment of the land, has litigated persistently against the company. What is also evident is that a Rojkam was prepared by the DILR in the year 2006 specifically pointing out that the road and the corridor was not passing through the Village pond as well as the Gamtal land. When the dispute was then taken up by the Gram Panchayat, a joint meeting was held on 26.07.2011. A second meeting was held on 29.08.2011 along with the officers of the revenue and the mining and the geology department wherein it was proposed that a Page 22 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 new bypass road and corridor be approved. In both these meetings, the petitioner of Special Civil Application No.8661 of 2013 Mr.Bhikhabhai Kalabhai Gohil was present and gave his consent for change in alignment in the road and the corridor. Based on the outcome of this meeting the Mamlatdar, Kodinar on 11.10.2011, passed an order and regularized the change in alignment of the road and the corridor. It is the case of the company that it had procured land and purchased it from persons and permissions were made for handing over this alternative lands to the Gram Panchayat and for following many procedures under the revenue laws for compliance was taking some time. What also is evident from the affidavit that subsequently it is an admitted fact that an equal portion of the land has already been handed over to the State Government by the company.
15. The dates and events as reproduced herein above would indicate that petition being Special Civil Application No.8661 of 2013 at the hands of the Page 23 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 Gohilni Khan Gram Panchayat especially at the hands of the Sarpanch Bhikhabhai Kalabhai Gohil is one more attempt after several litigations to persist with harassing the company by challenging the order wherein the Collector and the Revisional Authority have considering breach and part compliance at the hands of the company imposed a fine of 40 patts. Reading the pleadings conjointly of Special Civil Application No.8661 of 2013 and Special Civil Application No.9286 of 2014, would indicate that the orders of the Collector and that of the Revenue Authority in revision which are the subject matter of challenge in Special Civil Application No.8661 of 2013 need not be interfered with in exercise of the discretionary powers vested with the Court under Article 226 of the Constitution of India.
16. Hence, Special Civil Application No.8661 of 2013 specifically in light of the affidavit reproduced herein above is to be dismissed. Rule is discharged.
17. As far as Special Civil Application No.9286 of 2014 Page 24 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022 C/SCA/9286/2014 CAV JUDGMENT DATED: 03/12/2021 is concerned, the prayers made for quashing and setting aside the final notice dated 18.06.2014 passed by the Gram Panchayat for removal of encroachment is quashed and set aside and the petition is allowed. Rule is made absolute with no order as to costs.
(BIREN VAISHNAV, J) ANKIT SHAH Page 25 of 25 Downloaded on : Wed Jan 12 06:56:17 IST 2022