IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/Special Civil Application No. 14198 of 2021
Decided On: 18.11.2021
Shree Jangi Grampanchayat
Vs.
State of Gujarat
Hon'ble Judges/Coram: Dr. A.P. Thaker, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.D. Kinariwala
For Respondents/Defendant: Nikunj Kanara, AGP
ORDER
Dr. A.P. Thaker, J.
1. Heard learned advocate Mr. R.D. Kinariwala for the petitioner and learned AGP Mr. Nikunj Kanara for respondent-State. None has appeared on behalf of the private respondents though served.
2. By way of filing this petition, the petitioner has prayed for the following reliefs.
"(a) Your Lordships may be pleased to allow this petition.
(b) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction, directing the respondents herein to comply the order dated 17.01.2018, passed by the respondent no. 3 and further be pleased to direct the respondent no. 4 herein to remove an illegal encroachment and to hand over the peaceful and vacant possession of the Gauchar land bearing revenue survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch.
(c) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents herein to direct the respondent no. 4 herein to remove an illegal encroachment from Gauchar land bearing revenue survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch. And further be pleased to comply with the order dated 17.01.2018 passed by the respondent no. 3 herein;
(d) Be pleased to grant any other relief/s as may deem fir proper, in the interest of justice."
3. Learned advocate for the petitioner Mr. Kinnariwala has submitted that the petitioner is a Grampachanyat registered under the provisions of the Panchayat Act situated at village Jangi, Taluka: Bachau, District: Kutch. That the respondent no. 4 has made illegal encroachment upon survey no. 1001/Paiki admeasuring 1.00 hectors of land of the Panchayat and has installed wind mill on the said land. He has submitted that the said fact has already been reflected from the inspection carried out by the office of DILR, therefore, has requested to get it removed the wind mill from the Gauchar land. That the respondent no. 4 has admitted that due to some technical error, the respondent no. 4 had installed the wind mill at survey no. 1001/Paiki instead of survey no. 1000/Paiki. According to learned advocate Mr. Kinnariwala, this admission is sufficient to direct the authorities to remove the encroachment on the Gauchar land. Therefore, he has prayed to pass appropriate order in this regard and handover the peaceful possession of the land in question to the petitioner herein.
4. Learned AGP has submitted that considering the materials placed on record, appropriate order may be passed.
5. The decision of Apex Court the case of Jagpal Singh and others Vs. State of Punjab and others reported in 2011(11) SCC 396 is relied on by the learned advocate Mr. Kinariwala for the petitioner. The Apex Court has observed that all the State Governments in the country should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the GramSabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India were directed to do the needful, taking the help of other senior officers of the Governments. It was also observed that if long duration of such illegal occupation or huge expenditure in making constructions thereon must not be treated as justification for condoning this illegal act or for regularising the illegal possession.
6. Having considered the submissions made by both the sides, coupled with the documentary evidence placed on record, it appears that there is no dispute that the land in question is a Gauchar land of the panchayat, which was declared as Gauchar land vide order dated 30.09.1971, and the promulgation entry came to be mutated in the revenue record on 20.09.2008, vide entry no. 2565, which was came to be rectified vide entry no. 454 qua survey no. 1001 and accordingly, the name of the petitioner-Grampanchayat was reflected in the survey number. It also appears from the record that the respondent no. 4 ha installed the wind mill upon survey no. 1001/Paiki, admeasuring 1.00 hectors of land. It also appears that respondent no. 3-Mamlatdar of Bhachau had written letter to DILR, Bhuj-Kutch in this regard on 11.07.2016, to carry out an inspection for measurement of the land in question. It also appears from the record that the Mamlatdar, Bhachau has also allowed the case of the petitioner and had directed respondent no. 4 to evacuate the disputed land and handover the peaceful vacant possession of the Gauchar land. As per the DILR report, the respondent no. 4, encroached upon the government land and has also taken stand that due to some technical mistake the wind mill came to be installed in the Gauchar land of the panchayat. Thus, it is incumbent on the part of the respondent that compliance of the order of the Mamlatdar is made and the wind mill be removed from the Gauchar land of the panchayat. It is also duty of the respondent no. 4 to remove the illegal encroachment made upon the Gauchar land bearing survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch and handover the peaceful possession to the panchayat.
7. Considering the aforesaid facts of the case, the present petition deserves to be allowed. Accordingly, the petition is allowed. The respondent no. 4 is hereby directed to remove the illegal encroachment made upon at the Gauchar land bearing survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch and to handover the peaceful and vacant possession of the Gauchar land to the Panchayat, within a period of three months from the date of receipt of writ of this order. The rest of the respondents are directed to get the compliance of this order without fail.
8. With the aforesaid direction, the petition is allowed. No order as to costs.
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