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2023 DIGILAW 344 (GUJ)

Ajitbhai Ravjibhai Chavda v. State Of Gujarat

2023-02-20

A.S.SUPEHIA

body2023
ORDER : 1. In the present writ petitions, the petitioners have sought a direction for setting aside the order of the respondent No.4-District Collector, Rajkot dated 13.12.2021 and also have sought prayer to stay the consequential notices dated 06.02.2023 issued to the petitioners under the provisions of Section 105 of the Gujarat Panchayats Act, 1993 (for short “the Act”). It is curious to note that the petitioners have not challenged the notices dated 06.02.2023 issued to them. 2. At the outset, learned advocate Mr.Dagli appearing for the petitioners has submitted that since the District Collector has exercised his jurisdiction under the provision of the Gujarat Land Revenue Code, 1879 (for short “the Code”) for the original land being allotted for cultivation by the State Government, the present writ petitions are filed challenging the order passed by the Collector. He has submitted that the impugned order dated 13.12.2021 has been passed in view of the order dated 09.08.2021 passed by the Division Bench of this Court in Writ Petition (PIL) No.96 of 2021. It is submitted that though the Division Bench, in paragraph No.6, has directed the District Collector, Rajkot to take appropriate decision, after affording opportunity of hearing to the parties, the concerned petitioners are not heard by the Collector and the impugned order has been passed. 2.1 It is submitted that pursuant to the aforesaid order, the concerned Gram Panchayat i.e. Pardi Gram Panchayat has issued show-cause notices to the petitioners under the provisions of Section 105 of the Act asking them to produce relevant documents with regard to the land in question within a period of seven days. He has submitted that in fact, the land in question, for which the notices have been issued, legally belong to the petitioners. It is submitted that the original land, which was allotted for cultivation by the State Government thereafter, in some of the cases, after obtaining permission of the State Government and also on the payment of requisite premium, has been sold to the petitioners. He has submitted that all the petitioners purchased the plots accordingly in Satyam Park Society, after undertaking necessary legal procedure and hence, since 2014 onwards, the petitioners are in possession of such plots/lands and, therefore, the impugned order passed by the Collector was uncalled for. It is submitted that water connection and other facilities are also given to the petitioners. He has submitted that all the petitioners purchased the plots accordingly in Satyam Park Society, after undertaking necessary legal procedure and hence, since 2014 onwards, the petitioners are in possession of such plots/lands and, therefore, the impugned order passed by the Collector was uncalled for. It is submitted that water connection and other facilities are also given to the petitioners. He has submitted that if opportunity would have been given to them, they would have pointed out all the relevant documents to the Collector. Thus, it is submitted that the impugned order may be set aside and the show-cause notices issued to the petitioners may be stayed. 3. Per contra, learned AGP appearing for the respondent authorities has submitted that the impugned orders do not require any interference at this stage since the petitioners are only called upon to produce necessary documents showing their entitlement of the land in question. While placing reliance on Section 105 of the Act, he has submitted that the same is to be read with Rule 55 of the Gram Panchayats (Procedure) Rules, 1997 (for short “the Rules”), which provides for detailed process of issuance of the show-cause notices after considering the reply and affording personal hearing to the affected persons. He has submitted that the District Collector, after considering all the relevant aspects and after hearing the affected parties and considering the District Inspector Land Record (DILR) reports of the land in question, has ultimately asked the concerned Taluka Development Officer (TDO) as well as Talati and District Development Officer (DDO) to undertake necessary exercise and hence, the Gram Panchayat has issued notices under Section 105 of the Act calling upon the petitioners to submit all the relevant documents for verification. It is thus, submitted that the present writ petitions are premature at this stage and the same may not be entertained. 4. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 5. It appears that pursuant to the order dated 09.08.2021 passed by the Division Bench of this Court in Writ Petition (PIL) No.96 of 2021, the District Collector has passed the impugned order dated 13.12.2021. The relevant observations of the Division Bench are as under: “6. 5. It appears that pursuant to the order dated 09.08.2021 passed by the Division Bench of this Court in Writ Petition (PIL) No.96 of 2021, the District Collector has passed the impugned order dated 13.12.2021. The relevant observations of the Division Bench are as under: “6. Accordingly, let the District Collector, Rajkot, take an appropriate decision in the matter referred to above strictly and in accordance with law after affording the opportunity of hearing to the parties concerned, within a period of four months from the date of submission of certified copy of this order along with all supporting material with fresh representation which the petitioner may propose to give. 6.1 If there are statutory provisions provided for evacuation of unauthorised occupants from the State land or the land belonging to the Gram Panchayat, such proceedings may be registered and may be proceeded accordingly. 6.2 In case, the Collector has already taken any decision and further exercise is to be undertaken by the Panchayat Department or the officers of the Gram Panchayat, then such officers may proceed to take necessary steps in accordance with law. This writ petition is disposed of, accordingly. Direct service is permitted.” 6. The Division Bench has thus, directed the District Collector to take appropriate decision in the matter with regard to the illegal encroachment and construction made by some of the persons of village over the concerned land belonging to the State or Gram Panchayat in accordance with law, after affording opportunity of hearing to the parties. It was further observed that if there are statutory provisions of evacuation of unauthorized occupants from such land belonging to the Gram Panchayat, such proceedings may be registered and may be followed accordingly. 7. Pursuant to the aforesaid direction, the District Collector, Rajkot after undertaking necessary exercise as directed by this Court, has passed the impugned order dated 13.12.2021 observing that there appears to be illegal encroachment on the land, as mentioned therein and thereafter, the Collector has directed the concerned authorities to proceed further and also to do the needful, after verification of the record. Translated version of the order is incorporated as under: “ORDER : (1) As per the produced Hissa Form and measurement sheet of the different survey numbers, it has been revealed that, encroachment has been done in the land under Gram Panchayat Pardi; in the Gauchar Land and Gamtal Land under the Gram Panchayat; in the survey number under the Gram Panchayat as shown in the aforesaid description. Therefore, as per the direction of the Hon'ble High Court, the Taluka Development Officer, Lodhika and the Talati cum Mantri, Pardi Gram Panchayat are to take action in consultation with the District Development Officer, Rajkot after verifying the details based on the record and site situation. (2) Prant Officer, Rajkot Rural and Mamlatdar, Lodhika is ordered to take action after verifying the record and the site situation, if encroachment is seen on the survey numbers of the government waste land. Parties are to be informed The order published under my signature and seal on 13/12/2021.” 8. Thus, in the aforesaid order, it is recorded by the District Collector that pursuant to the order passed by the Division Bench dated 09.08.2021 in Writ Petition (PIL) No.96 of 2021, the concerned parties are heard and he has considered the relevant evidence, as well as written and oral submissions. The petitioners are disputing the same. The District Collector has also considered various DILR reports, as mentioned in the matter. The same are also disputed by the petitioners. Ultimately, the District Collector, after making such observations, has asked the authorities under the provisions of the Act to do the needful and accordingly, the aforesaid order is also made known to the petitioners. The aforementioned directions issued by the Collector would clarify that the Collector has directed the Prant Officer, Rajkot and Mamlatdar to undertake exercise of spot verification, to consider all the relevant records of the land in question. Accordingly, Pardi Gram Panchayat has issued the show-cause notices to the petitioners under Section 105 of the Act. One of the notices is translated and incorporated as under: “To, Ajitbhai Ravjibhai Chavda, Satyam Park Mobile No.: 9727040755 At Pardi, Ta. Lodhika Dist. Rajkot You are hereby notified that, it has been found that, you have made encroachment at revenue survey No. 76 under the ownership of the Pardi Gram Panchayat of Lodhika Taluka by way of unauthorized possession/ occupancy / construction. Lodhika Dist. Rajkot You are hereby notified that, it has been found that, you have made encroachment at revenue survey No. 76 under the ownership of the Pardi Gram Panchayat of Lodhika Taluka by way of unauthorized possession/ occupancy / construction. In connection with this matter, you are to submit written documentary evidences regarding the land under your possession and occupancy at Pardi Gram Panchayat within seven (7) days. It is hereby informed that, if you fail do so, the same will be removed after the time limit on your expense and risk as per the provision of the Panchayat Act, 1993, assuming that, your possession and occupancy of the land is unauthorized and under encroachment.” 9. By the aforesaid notices, the petitioners are asked to point out all the record of the property in question, which they are enjoying within a period of 7 days, failing which such occupation would be treated as unauthorized. 10. The provision of section 105 of the Act, empowers the Panchayat to remove any unauthorized construction, encroachment and obstruction on its land. If the encroachment is on the State land, then as per the said provision, permission has to be obtained from the Collector or any other officer authorized by him. 11. The procedure, which is to be adopted for enforcement of such removal of the encroachment is prescribed under Rules 55 and 56 of the Gujarat Panchayat (Procedure) Rules, 1997. The same read as under: “55. Procedure for taking action under sub-section (5) of section 104 or sub-section (2) of section 105 :- (1) Before taking action under sub-section (5) of section 104 in respect of its clause 9b) (alteration or demolition of erection or reerection) or before taking action mentioned in sub-section(2) of section 105 (removal of obstruction or encroachment etc.) the person against whom the action is proposed shall be given seven clear days notice to show cause why the proposed action should not be taken giving details of actions desired to be taken by such person, failing which the acting proposed (details to be given in the notice) shall be taken by the panchayat. (2) Such notice shall clearly mention last date of his reply in writing to be delivered to the Panchayat and also the date, time and place where he will be given a personal hearing before the panchayat meeting. (2) Such notice shall clearly mention last date of his reply in writing to be delivered to the Panchayat and also the date, time and place where he will be given a personal hearing before the panchayat meeting. (3) The panchayat shall after considering the written reply and personal hearing, decide the action to be taken by a resolution at such meeting and a copy of the same shall be served upon the person concerned with notice to comply accordingly within seven days, failing which decision of the panchayat shall be implemented at his cost and risk. (4) The panchayat shall after the expiry of seven days from the date of service of such notice under sub-rule (3), take action as per sub-section (5) of section 104 or sub-section (2) of section 105, as the case may be. (5) Notice under sub-rule (1) and (3) shall be served, personally to the person concerned or any adult member of his family residing with him or by affixing at his residence or place of business or by post by Registered letter A.D. if he resides out of the village panchayat area. 56. Procedure for removal of obstructions :- (1) For removal of obstruction mentioned in clause (b) of sub- section(1) of section 105, the Sarpanch or Secretary of the village panchayat shall give oral notice to remove such obstruction immediately and if it not removed, a written notice, signed by the Sarpanch may be served upon him personally or to any adult member of his family or affixed to his residence or place of business in present of two witnesses, asking him to remove such obstruction within two hours of receipt of such notice, failing which such obstruction shall be removed and goods or things be taken in custody of the panchayat at his cost. (2) On the expiry of the period of such notice, the Sarpanch or Secretary of the panchayat may remove such obstruction at the defaulter cost, and shall return the goods after recovering such costs.” 11.1 The case of the petitioners will fall under section 105(2) of the Act, hence the provision of Rule 55 will get attracted and not Rule 56. Sub-rule (2) of Rule 55 of the Rules, mandates that the notice, which is issued to the concerned person, who is responsible for the unauthorized occupation of the land and before taking action of such demolition or erection or re-erection, as provided under section 105 of the Act, the notice, which is issued to such person shall clearly mention last date of his reply in writing to be delivered to the Gram Panchayat and also date, time and place, where he will be given personal hearing before the Gram Panchayat meeting. 11.2 Sub-rule (3) of the Rules provides that the Gram Panchayat, after considering the written reply and personal hearing, decision would be taken by the resolution on such meeting. Finally, after necessary exercise is undertaken, under Rule 13. Thus, the Gram Panchayat is only following the procedure, as contemplated under the Act and the Rules, and the petitioners have straight away rushed to this Court without providing necessary details of the their land. The Rule also provides for personal hearing to such affected person like the petitioners. The exercise, which is undertaken by the Prant Officer, Gram Panchayat under the provisions of Section 105 of the Act and subsequent action, as mentioned therein is only for actual verification of the land in question and the entitlement of the petitioners. In case, the petitioners are able to establish before the concerned authorities on the basis of the documentary evidence that they are legally and rightfully holding the land in question, there would be no necessity or any reasons for the Gram Panchayat or State Government to demolish such construction. The entire exercise depends on response of the petitioners, who eventually will have to prove that they legally owned the land or not. Thus, the petitioners have to approach the Gram Panchayat authorities pursuant to the notice issued under Section 105 of the Act by producing all the relevant documents. It goes without saying that if the petitioners are able to establish that they have neither encroached upon the land nor made illegal construction, the concerned authority acting under the Act can always pass necessary orders withdrawing such notice/action. 14. Thus, the writ petitions are disposed of with these directions at this stage. It goes without saying that if the petitioners are able to establish that they have neither encroached upon the land nor made illegal construction, the concerned authority acting under the Act can always pass necessary orders withdrawing such notice/action. 14. Thus, the writ petitions are disposed of with these directions at this stage. It will be open for the petitioners to point out their documents in support of their case to the effect that they have neither encroached upon the land in question nor have made illegal construction. It goes without saying that the concerned Gram Panchayat or respondent authorities shall act as per the provisions of the Act and Rules. 15. In case, the petitioners are able to establish that they legally owned the land in question and they have not encroached upon or made any illegal construction on the land of the Gram Panchayat or the State, it goes without saying that in such case, the directions of the Collector may not be construed detrimental to the interest of the petitioners. It is clarified that all the petitioners shall submit all the relevant documents in support of their case pursuant to such notice within a period of two weeks from the date of receipt of writ of the order of this Court. After such reply and documents are tendered, the respondent authority shall strictly follow the procedure as envisaged in the aforementioned provisions of the Act and Rules. 16. It is clarified that this order shall be made applicable to those affected persons also, who are issued such notices, and they are not required to file individual writ petitions before this Court asking for similar order. The respondent authorities are directed, to apply the observations made in the present order in similar cases, and such affected individuals should not be asked to obtain individual orders from this Court. Learned AGP is directed to communicate the intention of this Court to the concerned authorities. 17. Registry to place a copy of this order in each of the connected matters.