Indian Kanoon - Search engine for Indian Law

1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order or direction quashing and setting aside the inaction on the part of the concerned authorities in taking appropriate steps for removal of illegal construction / encroachment made by the respondent No.5 upon the Gamtal land.

The petitioners have also prayed for appropriate writ, order or direction directing the concerned respondents authorities to take appropriate steps/action for removal of illegal construction put up by respondent No.5 upon the Gamtal land as per the resolution dated 10.10.2008 passed by the village Panchayat, Timberva in the prescribed time limit.

2. The facts leading to filing of the present Special Civil Application in nut-shell are as under:

According to the petitioners, the respondent No.5 who was Sarpanch of the village Timberva has encroached upon the Gamtal land and as no action was taken by the respondents authorities despite various representations/applications, petitioners preferred the Special Civil Application No.28998/2007 by way of PIL before this Court praying that the respondents authorities may be directed to take appropriate actions for removing illegal construction put up by the respondent No.5 upon the Gamtal land. That during the pendency of the said PIL being Special Civil Application No.28998/2007, the village Panchayat, Timberva passed resolution on 10.10.2008 being Resolution No.5/1 by which it was resolved to initiate proceedings for removal of illegal construction put up on the land in question and to make it open. That in view of the resolution dated 10.10.2008 passed by the village Panchayat, Timberva , the Division Bench of this Court dismissed the said petition vide order dated 14th November 2008 by observing that since the Gram Panchayat has already passed resolution for removal of illegal construction put up by the respondent No.5, we find it unnecessary to keep this PIL pending. The respondent authority shall take appropriate action in accordance with law. The PIL is dismissed. It appears that as thereafter for considerable long time, no further steps were taken to remove the illegal construction, pursuant to the resolution dated 10.10.2008, petitioners preferred the Miscellaneous Civil Application No.1836/2009 praying for taking appropriate steps against the concerned respondents under the Contempt of Courts Act. However, as no time limit was fixed by the Division Bench while dismissing the aforesaid PIL, the Division Bench dismissed the said application. That thereafter the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs.

It is further submitted that if the Panchayat is not taking any action , it is the duty of the Taluka Panchayat and District Panchayat to take steps to remove the illegal construction and/or compel the Gram Panchayat to take steps to remove the illegal construction. It is submitted that by not taking any action of removing the illegal construction made by the respondent No.5 on the Gamtal land, the authorities have failed to perform their statutory duty cast under the Gujarat Panchayat Act, more particularly, Section 105 of the Gujarat Panchayat Act, 1993. Therefore, it is requested to allow the present Special Civil Application by directing the concerned respondents to remove the illegal construction and encroachment made by the respondent No.5 on the Gamtal land and to get the land open by removing the respondent No.5 from the land in question.

5. Pursuant to the aforesaid order dated 16th December 2009, the Taluka Development Officer, Choryasi has held the necessary inquiry as ordered by this Court and has submitted the report after giving opportunity to respondent No.5 as well as Gram Panchayat, Timberva and has specifically opined and submitted the report that the respondent No.5 has made illegal construction and has encroached upon the Gamtal land / vada land. The said report has not been challenged by the respondent No.5. Even thereafter the Taluka Development Officer, Choryasi has taken further steps and issued the notice dated 30th January 2010 upon the respondent No.5 under Section 105(2) of the Gujarat Panchayat Act, 1993 directing the respondent No.5 to remove the unauthorized and illegal construction and the encroachment made by the respondent No.5 on 123 sq.meters of Gamtal land. The respondent No.5 has been directed to remove the encroachment and construction on or before 10th February 2010. It appears that the said notice is also not challenged. It is the contention on behalf of the respondent No.5 that it is ghar kachha land / mafi kachha land and therefore, the encroachment of the respondent No.5 can be regularized. It is disputed by the respondent No.5 that the land in question is a Gamtal land. Be that as it may, whether it is Gamtal land or not, admittedly the land in question is not of the ownership of the respondent No.5 and the respondent No.5 has encroached upon 123 sq.meters of land and has made illegal construction for which even the Gram Panchayat has passed resolution dated 10.10.2008 and thereafter even the Taluka Development Officer, Choryasi has also issued the notice under Section 105(2) of the Gujarat Panchayat Act, 1993 on 30.01.2010. The respondent No.5 has neither challenged the report of the Taluka Development Officer, Choryasi nor the resolution of the Panchayat dated 10.10.2008 and even the notice dated 30.01.2010 issued by the Taluka Development Officer, Choryasi under Section 105(2) of the Gujarat Panchayat Act. As stated above, the Division Bench dismissed the PIL as in the meantime Panchayat passed a resolution to remove the illegal construction and the encroachment made by the respondent No.5. It appears that to get out of any order to be passed by the Division Bench in PIL and only with a view to make a show, the Panchayat passed resolution dated 10.10.2008. Be that as it may the fact remains that respondent No.5 has made illegal construction and has encroached upon the Gamtal land and has no right to continue with illegal construction and occupation of the Gamtal land and therefore, a direction is required to be issued upon the concerned respondents to remove illegal construction and encroachment made by the respondent No.5 and take final steps on the notice dated 30th January 2010 issued by the Taluka Development Officer, Choryasi under Section 150(2) of the Gujarat Panchayat Act, 1993.