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2019 DIGILAW 695 (GUJ)

LAXMIBEN NAGINBHAI VANKAR v. STATE OF GUJARAT

2019-07-04

ANANT S.DAVE, BIREN VAISHNAV

body2019
ORDER : ANANT S. DAVE, J. 1. Challenge in this letters patent appeal under clause-15 of the Letters Patent is to oral order dated 14.2.2019 passed in Special Civil Application No. 1945 of 2009, whereby challenge to show cause notice dated 31.12.18 issued by District Development Officer, Vadodara under section 57(1) of the Gujarat Panchayats Act, 1993 (“the Act” for short) was rejected on the ground that allegations levelled therein against the petitioner do not fall within the definition and the ingredients contained in section 57(1) of the Act and such exercise of power by the authority was without jurisdiction and hence extraordinary powers of the High Court were invoked. 2. Learned Single Judge, adverted to the facts of the case and considered the decisions relied on by the learned advocate for the petitioner as well as the learned Assistant Government Pleader, appearing on behalf of the respondents and observed that the petitioner has alternative remedy available; that she has filed reply to the show cause notice and appeared before the authority earlier. However, the respondent authority. The learned Single Judge was of the opinion that it would be proper to address the very issue including that of lack of ingredients of section 57(1) of the Act and no jurisdiction, therefore, vested in the authority and thereby disposed of the writ-petition. 3. Before us, contentions raised by learned advocate appearing for the appellant are that a bare perusal of the show cause notice would go to show that the land in question never vested into Gram Panchayat and the alleged construction was carried out illegally by some persons for which neither the petitioner nor Panchayat, as a body, were responsible. The second allegation was pertaining to construction of RCC road pursuant to the permission granted by the Taluka Development Officer as well as District Development Officer and therefore, the said issue was not required to be entertained. 4. It is accordingly submitted that when the authority, especially within the meaning of Article 12 of the Constitution of India is likely to exercise power without jurisdiction and pass an order as a consequence of such lack of jurisdiction, this Court, in exercise of power under Article 226 of the Constitution of India, is duty bound to issue writ of prohibition or appropriate writ or order so as to prevent the miscarriage of justice likely to be caused to the petitioner. It is, thus, submitted that by relegating the petitioner to alternative remedy, the learned Single Judge has erred in law inasmuch as the show cause notice was illegal and without authority of law. 5. Having regard to the facts and circumstances of the case and the decision of a coordinate Bench of this Court in the case of Gitaben, w/o Fulsinh Thaor vs. State of Gujarat dated 17.3.2015 in Special Civil Application No. 18886 of 2014 and other such decisions, we have perused the contents of the show cause notice, whereby the petitioner is asked to show cause and remain present before the authority. It transpires that initially permission to construct houses was granted by the Gram Panchayat, and whether construction is illegally carried out qua item 1 of the show cause notice on the govt. land and decision that was taken by talati cum mantri of Village Panchayat to remove the illegal construction etc., can be agitated before the competent authority and subsequently about the construction of RCC road, pursuant to direction issued by the Taluka Development Officer and the resolution passed on 6.6.2017 also, appropriate defence can be canvassed by the members of the Panchayat. However, we are of the view that the show cause notice cannot be said to be without any jurisdiction. Hence, keeping it open for the appellant petitioner to take permissible contentions in accordance with law in addition to the reply already filed to the show cause notice before the competent authority, this letters patent appeal is disposed of. The above order shall not be construed as reflection of merit of the show cause notice and the reply filed by the petitioner, the appellant herein. The appeal is disposed of. Consequently, connected civil application does not survive and the same is disposed of.