JOGABHAI KACHRABHAI BHARWAD & Ors. v. STATE OF GUJARAT & Ors.

CORAM : MR.JUSTICE M.S.SHAH Date of decision: 22/04/2002 ORAL JUDGEMENT (cid:9)In view of the provisions of section 113(1) of the Gujarat Panchayats Act, 1993, following direction is given:- (cid:9)Leave to add Collector, Anand as respondent No.5.

2.(cid:9)Rule to respondent No.5. Mr HC Patel waives service of Rule for respondent No.5. In the facts and cicumstances of the case, the petition is taken up for final disposal today.

3.(cid:9)The Changa Gram Panchayat is seeking to evict the petitioners from the land bearing Survey No.562/1 paiki on the ground that the land is a gauchar land of the Changa Gram Panchayat and the petitioners have made illegal encroachment on the land in question for putting up their huts. The petitioners approached the Civil Court at Petlad by filing a Regular Civil Suit No.127 of 1985 for challenging the aforesaid action. The Civil Court dismissed the suit and Regular Civil Appeal No.121 of 1998 came to be dismissed by the learned 2nd Extra Assistant Judge, Kheda at Nadiad. In the said judgments, the Courts below gave a finding that the land in question belongs to the Change Gram Panchayat and the petitioners were not able to show any legal right. The petitioners thereupon filed Second Appeal No.80 of 2001 which was permitted to be withdrawn by this Court on 5-7-2001 on the ground that the Government has given some direction to the Changa Gram Panchayat and the petitioners, therefore, do not want to proceed with the second appeal. The appeal was accordingly disposed of as withdrawn.

4.(cid:9)When Mr NA Pandya, learned counsel for the petitioners sought to rely upon the aforesaid order, Mr Popat for Changa Gram Panchayat states that no direction, as alleged by the petitioners, was given by the Government to the Changa Gram Panchayat and that the Changa Gram Panchayat is entitled to evict the petitioners from the land belonging to the Changa Gram Panchayat.

5.(cid:9)From the grievance which was made by the petitioners before the Civil Court and also being made hereinabove, it appears that this is a pure question of fact - whether the land occupied by the petitioners belongs to the Changa Gram Panchayat or to the Padgol Gram Panchayat which are adjoining villages. According to the petitioners, births and deaths at the place are being recorded in the register of the Padgol Gram Panchayat. Any how in this petition under Article 226 or 227 of the Constitution, this Court is not inclined to entertain the aforesaid disputed question of fact as the petitioners can make a representation to the Petlad Taluka Panchayat for deciding the question whether the land is within the territorial limits of Changa Gram Panchayat or within the territorial limits of Padgol Gram Panchayat as it appears to be on the border between the two villages.

6.(cid:9)The learned counsel for the petitioners, therefore, seeks leave to withdraw the petition with a view to making a representation to the Collector, Anand and to the Taluka Land Committee and the Taluka Development Officer, Petlad and further prays that till the decision on the representation is rendered by the authorities, the petitioners may not be evicted.

7.(cid:9)Mr Popat, learned counsel for the Changa Gram Panchayat submits that when the Civil Court has already decided the issue that the land in question belongs to the Change Gram Panchayat, there would be no justification for giving such a direction.

8.(cid:9)It is clarified that this Court does not overrule the finding given by the Civil Court but in the Civil suit filed by the petitioners against the Changa Gram Panchayat, the Padgol Gram Panchayat was not a party and, therefore, before the finding given by the Civil Court in the aforesaid suit and appeal can be made binding on the Padgol Gram Panchayat, it would be just and proper to direct the Collector, Anand to give an opportunity of hearing to the Changa Gram Panchayat and also to the Padgol Gram Panchayat and to the petitioners as well and thereafter to decide whether the land falls within the territorial limits of one Gram Panchayat or the other.

9.(cid:9)It is clarified that this Court has not gone into the question of the title of the petitioners to the land in question. However, the matter has been examined only from the point of view as to whether the authority competent to evict the petitioners from the land in question is the Changa Gram Panchayat or the Padgol Gram Panchayat and this order does not confer any right on the petitioners to claim any ownership over the land in question. It is for the competent Gram Panchayat having ownership of the land in question which shall be entitled to proceed against the petitioners in accordance with law. It will also be open to the petitioners to make appropriate representation to the competent Gram Panchayat either to regularise the land in question or to offer alternative site to the petitioners.

10.(cid:9)With a clarification that this Court does not give any direction to any authority except to direct the Collector, Anand to decide whether the land in question falls within the jurisdiction of the Changa Gram Panchayat or the Padgol Gram Panchayat, it is directed that the Collector, Anand shall decide the aforesaid controversy as expeditiously as possible and in any case by 30th June, 2002. Thereafter the petitioners may make a representation to the competent Gram Panchayat within 15 days from the date of receipt of the decision of the Collector and the competent Gram Panchayat shall decide the representation within one month from the date of receipt of the representation. Till the concerned authorities decide the issue, it is directed that the ad-interim relief granted earlier shall continue till

31.7.2002.

11.(cid:9)The petition accordingly stands disposed of in terms of the aforesaid directions. Rule is made absolute to the aforesaid limited extent with no order as to costs. (cid:9)Liberty to apply in case of difficulty. (cid:9)Direct service is permitted. (cid:9) (cid:9)(M.S. Shah,J) zgs/- (cid:9) (cid:9) (cid:9)