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SCA/9239/1993 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9239 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PITAMBARBHAI
HARIBHAI PARMAR & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT & 8 - Respondent(s)
=================================================
Appearance
:
MR
NIRAJ J SHARMA for Petitioner(s) : 1 - 3.
Mr.MANISHA NARSINGHANI,
ASST GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
MR AMIT M
PANCHAL for Respondent(s) : 3,
None for Respondent(s) : 4,
MR
MC BAROT for Respondent(s) : 5 -
9.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 18/11/2010
ORAL
JUDGMENT
Pursuant
to order passed by this Court on 15th November 2010,
whereby the petitioners were directed to see that the encroachment
made is removed at the earliest, learned advocate Mr.Sharma, on
instructions from his clients, makes a statement before the Court
that the petitioners did remove the encroachment. The learned
advocate further states, on instructions from his clients, that there
was no ‘pucca’ construction, it was only ‘kutcha wada’
and that has been vacated by the petitioners.
2. In
light of that statement the Court does not pass any further order of
recovery of rent from the petitioners from the date they claimed
possession of the land in question, viz. 1988.
3. Heard
learned advocate Mr.Niraj J. Sharma for the petitioners. Mr.Sharma
vehemently submitted that the auction which took place on 21st
January 1988 was not legal and there were various flaws in the
auction as the authorities did not comply with necessary provisions
for the same. Besides that the case of the petitioners is that as
the land is adjoining to the residential premises of the petitioners
and the petitioners are in possession of the land and they are using
that land for keeping their cattle; the authorities ought to have
considered the application filed by the petitioners as early as on
27th August 1985, a copy of which is produced at page 16
and thereafter another application dated 10th February
1987, a copy of which is produced at page 15. It is contended by the
learned advocate that the authorities ought to have considered the
request of the petitioners and ought to have granted the land to the
petitioners.
4. In
the present case, the auction was held on 21st January
1988 by the Sarpanch-respondent no.4 herein. It is the case of the
authorities that it was after necessary permission was granted by the
Taluka Development Officer the auction was held. Subsequently, the
Taluka Development Officer sanctioned sanction the auction dated
21st January 1988 on 29th April 1988. The
petitioners being aggrieved by the outcome of the auction, challenged
that auction before the Deputy Collector by filing Appeal No.42 of
1988, which came to be allowed by the Deputy Collector by order
dated 30th December 1988 whereby the Deputy Collector was
pleased to quash the order of auction and remitted the matter to the
Taluka Development Officer, Palanpur for ascertaining as to whether
the land in question is a ‘Gamtal,’ a ‘Gauchar’ or a
Government land and if there is unauthorized possession of the
petitioners, the same should be removed and thereafter, fresh
decision be taken.
Against
this order of the Deputy Collector, the affected parties, viz.
respondents no.5 to 9 filed an appeal which came to be decided by the
Collector by judgment and order dated 29th January 1991,
who allowed the appeal and quashed and set aside the order passed by
the Deputy Collector dated 30th December 1988 and
confirmed the order sanctioning the auction sale by the Taluka
Development Officer dated 29th April 1988. Against this
order of the Collector, the present petitioners preferred the appeal
before the SSRD, who decided the same by judgement and order dated
7th October 1992, who confirmed the order of the Collector
dated 29th January 1991. In the result the order of the
Taluka Development Officer dated 29th April 1988
sanctioning the auction stood confirmed.
5. Thus,
there are sane findings recorded by three authorities, firstly by
the Taluka Development Officer, secondly by the Collector and thirdly
by the SSRD.
6. The
learned advocate for the petitioner has vehemently submitted that the
authorities below have committed error in not considering the
important aspect of the matter, namely, the land is situated adjacent
to the residential premises of the petitioner, that the petitioners
are in possession of the premises and that the requisite procedure
was not followed by the authorities-Sarpanch in holding the auction.
None
of these contentions found favour with the authorities. Besides, all
these questions are the questions of disputed facts and therefore,
this Court refused to go into any of these questions. Even
otherwise, it appears from the record that the petitioners encroached
upon the land and then claimed the land by way of indulgence from the
authorities by saying that the land be given to them by a deeming
auction or by fixing a price for the same taking into consideration
the fact that the land is adjacent to their residential premises and
that they are in possession thereof. The learned advocate could not
satisfactorily convince this Court that any gross illegality or
irregularity is committed in holding the auction and therefore, this
petition fails and the same is dismissed. Rule is discharged. No
order as to costs.
(RAVI
R. TRIPATHI, J.)
karim
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