Gujarat High Court Case Information System
Print
SCA/21792/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 21792 of 2007
with
SPECIAL
CIVIL APPLICATION No. 21811 to 21815 of 2007
with
SPECIAL
CIVIL APPLICATION No. 25738 of 2007
with
SPECIAL
CIVIL APPLICATION No. 25739 to 25742 of 2007
with
SPECIAL
CIVIL APPLICATION No. 25488 to 25489 of 2007
=========================================================
SURESHBHAI
NATHUBHAI GAMARA & 5 - Petitioner(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================================
Appearance
:
MR KIRTIDEV R DAVE for
Petitioners, MR RAHUL K DAVE for Petitioners
MR SATYAM CHHAYA AGP
for Respondent(s) : 1 - 4,
MS RV ACHARYA for Respondent(s) : 5,
MR
PV HATHI for Respondent(s) : 6 -
7.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 13/11/2008
COMMON
ORAL ORDER
The
petitioners have filed these petitions under Article 226 of the
Constitution of India inter alia with the following main prayers :-
12(b) Your
Lordships may be pleased to issue a writ of mandamus or any other
appropriate writ, direction and/or orders directing the respondents
to get the encroachment in the Gauchar land of Sarvai village in Tal.
Botad of Bhavnagar District. The respondents be further directed to
take suitable action within a time bound program.
(c) Your
Lordships be pleased to direct the respondents to take suitable
actions to report the Hon’ble Court about the actions taken and
proposed to be taken for the purpose of removing the encroachment in
the Gauchar land.
(d) Your
Lordships be further pleased to direct that pending admission,
hearing and final disposal of this petition the respondents should
see that there is no further encroachment over the Gauchar land of
Sarvai village .
According
to learned counsel for the petitioners they are carrying out
activity of animal husbandry and grazing cattle. As per the policy
of the Government certain piece of land nearby the village is to be
kept as Gauchar land which is encroached by the encroachers and
therefore the petitioners are unable to maintain livestock. The
petitioners further submit that some of the encroachers are
politically influenced and such persons include even Sarpanch of the
village and President and members of the Taluka Panchayat and
therefore the authorities are loath in taking appropriate action in
accordance with law. In reply to the notice and earlier directions
given by this Court, respondent No.6-Taluka Development Officer,
Botad had filed affidavit in reply and submitted that the
petitioners have suppressed vital facts about status of the
petitioners inasmuch as the petitioner No.1 of Special Civil
Application No.21792 of 2007 is ad-hoc Gram Mitra, an employee of
the Gram Panchayat is father of Nathubhai, who is residing together
with petitioner No.1 has encroached upon disputed gauchar land and
the said fact is not disclosed in the petition and on notice being
issued on 27.8.2007 said Shri Nathubhai has removed encroachment.
Not only that but relatives of the petitioners, including brother
have encroached upon simthal land of the Government for which
Mamlatdar, Botad has taken action. Thus, the petitioners have not
approached this Court with clean hands and by suppressing the very
vital facts about encroaching the land, obtained the order from this
Court. Not only that a prayer is made to remove the encroachment of
the gauchar land and allegations have been levelled against the
persons who have encroached the land belonging to gauchar land are
not joined as party and any order that may be passed by this Court
is likely to affect such persons. It is further submitted that
Taluka Development Officer has stated that the measurement of the
gauchar land is undertaken and immediate action will be taken to
clear the gauchar land. It is further submitted that as the first
step of the measurement the Panchayat has removed eight different
persons and panchnama was also drawn by which 24 acres of land has
been cleared. Therefore, according to learned counsel for the
respondent No.6 all possible measures have been undertaken.
Learned
AGP appearing for the respondent-State submits that necessary
instructions have been passed to the Competent authority of the
District as well as Taluka Panchayat and after following procedure
under Bombay Land Revenue Code, which requires issuance of notice
etc. under Sections 61 and 202 further proceedings will be
undertaken.
Considering
the above facts and circumstances of the case and the affidavit in
reply filed by the Taluka Development Officer, Botad and submissions
made by learned AGP that the authorities have taken sufficient steps
to remove the encroachment from the gauchar land after undertaking
measurement so as to determine the exact area of gauchar land. Not
only that but as a part of the above measures 24 acres of land is
cleared. So far as removal of remaining encroachment is concerned,
they are following the procedure as envisaged under law, at this
stage, no further direction can be given to the petitioners who have
suppressed the very vital facts about encroaching gaucher land by
themselves without joining the persons likely to be affected, if
any, directions are given to remove the encroachment. No case is
made out to exercise extra-ordinary writ jurisdiction under Article
226 of the constitution of India. It is needless to say that the
powers vested in the authority under the statute are to be exercised
by such authority and a perusal of the record if it is found that
the authority has taken necessary steps to comply with the
provisions of the statue, powers under Article 226 of the
Constitution of India cannot be invoked by this Court as held by the
Apex Court in the case of Muni Suvrat Swami Jain S.M.P.Sangh
v. Arun Nathuram Gaikwad reported in AIR 2007 SC 38.
In
view of the above discussion, all these petitions fail and are
hereby dismissed.
Rule
discharged. However, there shall be no order as to costs.
(ANANT S. DAVE, J.)
*pvv
Top