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2017 DIGILAW 1644 (GUJ)

Ashokbhai Jinabhai Parmar v. State of Gujarat

2017-09-14

J.B.PARDIWALA

body2017
ORDER : J.B. PARDIWALA, J. 1. The draft amendment is allowed. The same shall be carried out at the earliest. 2. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs; “(A) Your Lordships may be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 22.08.2017 passed by respondent no. 1 in Case No. Land/Encroachment/Palitana/Case No. 3/2017 as being unjust arbitrary, unreasonable, non-speaking, non-reasoned and in breach of principles of natural justice and also violative of Article 14 of the Constitution of India; (B) Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 22.08.2017 passed by respondent no. 1 in Case No. land/Encroachment/Palitana/Case No. 3/2017 and further be pleased to restrain the respondent no. 2 and their Officers, Agents and/or servants from taking any coercive action or steps in respect of the subject lands pursuant to the impugned order, pending the admission, hearing and final disposal of this petition; (C) Your Lordships may be pleased to direct the respondents to regularize the possession of the petitioner on the subject land Survey No. 498.P17.P1, situated at Jivapura Road, Near Bhuteshwar Mahadev temple, Palitana-Gujarat, on paying the market price by the petitioner, pending the admission, hearing and final disposal of this petition. (D) Your Lordships may be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon'ble Court, in the interest of justice.” 3. Indisputably, the writ applicant is in an unauthorized occupation of the government waste land bearing Survey No. 498.P17.P1, situated at Palitana. According to the notice issued by the Mamlatdar under section 202 of the Gujarat Land Revenue Code dated 22nd August, 2017, the writ applicant has encroached upon 1000 square meters of the government waste land. The principal argument of the learned counsel appearing for the writ applicant is that before issue of notice under section 202 of the Gujarat Land Revenue Code, there has got to be an adjudication by the competent authority under section 61 of the Gujarat Land Revenue Code. The principal argument of the learned counsel appearing for the writ applicant is that before issue of notice under section 202 of the Gujarat Land Revenue Code, there has got to be an adjudication by the competent authority under section 61 of the Gujarat Land Revenue Code. According to the learned counsel, the authority concerned is obliged to pass a substantive order under section 61 of the Code after hearing the person concerned and such order has, thereafter, got to be executed by issuing notice under section 202 of the Code. 4. The learned counsel would further submit that the writ applicant is ready and willing to pay the price of the land, encroached upon, to the State Government. It is further submitted that under section 62 of the Code, the authority has the power to even consider regularizing the encroachment. 5. Ms. Thakore, the learned AGP, was requested to take appropriate instructions in the matter. Today when the matter is taken up for hearing, Ms. Thakore places on record a Panchnama drawn by the authority concerned along with the two photographs. The two photographs would indicate that there are small structures in the form of a hut and a toilet. It also appears that the encroached portion of the land has been cordoned by a barbed wire fence. Ms. Thakore, the learned AGP has instructions to make a statement that, in fact, the order under section 61 of the Code was passed. She further submits that the same was dispatched by a Registered Post A.D, but the person concerned declined to accept the same. Ms. Thakore, the learned AGP has the original record with her. Ms. Thakore the learned AGP, further pointed out that this very parcel of land, encroached upon, has been allotted for the purpose of constructing the quarter for the government servants. 6. The learned counsel appearing for the petitioner submits that the writ applicant has filed an application dated 25th July, 2017 in the form of a reply to the notice with a prayer to consider regularization of the encroachment. To make good her case for regularization of the encroachment, the following has been relied upon; “(a) The petitioner and the petitioner's family, with their cattle have been residing on the said property since last 40 years and are cattle breeders. To make good her case for regularization of the encroachment, the following has been relied upon; “(a) The petitioner and the petitioner's family, with their cattle have been residing on the said property since last 40 years and are cattle breeders. (b) The petitioner has built a roof on the said property, under which the petitioner's cattle rests. The petitioner is staying in very small portion of the land and is not occupying 1000 sq. mtr land as stated in the notice. (c) The said property is in the interior of the Palitana city, and not on the main road. The petitioner also stated that there has been no nuisance or obstruction caused because of the petitioner or petitioner's cattle. (d) The petitioner is having his electricity bills, BPL card, Aadhar Card and Election Card, in all these cards the address mentioned is of the said property. (e) The Government itself constructed toilets on the said property under the Swachh Bharat Scheme. (f) There are other buildings that have been constructed on the nearly property by the labourers. These people who have constructed building in the nearby property have not been served a notice, and it is only the petitioner, who was served the notice. This act of the respondent shows the business and malafide by respondent towards the petitioner. (g) The petitioner had also requested the respondent, that the petitioner is willing to pay the appropriate market price for the disputed property. (h) The petitioner stated that, the petitioner doesn't have any other property where the petitioner can stay and that the said disputed property is the only place of residence that the petitioner has.” 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am not inclined to grant any relief to the writ applicant. Indisputably, the case is one of encroachment. However, the Mamlatdar, Palitana, before proceedings further with the execution of the impugned notice dated 22nd August, 2017, may consider the application filed by the writ applicant herein dated 25th July, 2017, Annexure-E to this petition, page-27 and, thereafter take an appropriate decision in accordance with law. 8. With the above, this writ application is disposed of. 9. Direct service is permitted.