Arvindbhai Joitaram Prajapati vs State Of Gujarat
2021 Latest Caselaw 4829 Guj

         C/SCA/4449/2021                                   ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 4449 of 2021
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                    ARVINDBHAI JOITARAM PRAJAPATI
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,11,12,2,3,4,5,6,7,8,9
MS NIDHI VYAS AGP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 30/03/2021

                             ORAL ORDER

1. By way of this petition, the petitioner has prayed for following reliefs:

"A) This Hon'ble Court may be pleased be issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, holding and declaring that the inaction on the part of the respondent authorities in removing the encroachment is bad in law, illegal and arbitrary, directing the respondent authorities to forthwith act upon the application of the petitioner dated 04.10.2010 and to remove the encroachment of about 13 to 14 ft, made on the public road admeasuring 20 X 136 ft, on the Western side of Housing Plot Nos.1 to 7 and on the Eastern side of the sim tal Land bearing Survey No.2/2 of village Jaspur, Taluka Kalol, District Gandhinagar and to make the same open to public.

B) By way of an appropriate writ, order or direction, this Hon'ble Court may be pleased to direct the Talati cum Mantri and Sarpanch of Jaspur Gram Panchayat to forthwith explain their submission of false report of having removed the encroachment on the land in

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question.

C) Pending admission, hearing and / or final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent authorities to forthwith initiate action for removal of illegal encroachment admeasuring of about 13 to 14 ft, made on the public road admeasuring 20 X 136 ft, on the Western side of Housing Plot Nos.1 to 7 and on the Eastern side of the sim tal Land bearing Survey No.2/2 of village Jaspur, Taluka Kalol, District Gandhinagar

D) Pending admission, hearing and / or final disposal of this petition, this Hon'ble Court may be pleased to appoint a fit and proper person, as this Hon'ble Court may deem fit and proper, to act as the Court Commissioner with a direction to personally visit the disputed site being 20 X 136 ft, public road situated on the Western side of housing plot Nos.1 to 7 and on the Eastern side of the sim tal land bearing Survey No.2/2 of village Jaspur, Taluka Kalol, District Gandhinagar and to prepare a map/sketch thereof and to submit his report before this Hon'ble Court within a stipulated time as this Hon'ble Court may deem fit and expedient.

E) Such other and further orders as this Hon'ble Court may deem just, fit and expedient be passed in favour of the petitioner.

F) Costs of this petition be provided for to the petitioner."

2. Heard learned advocate Mr.Chinmay Gandhi for the petitioner and learned Assistant Government Pleader Ms.Nidhi Vyas for the Respondent No.1 - State through video conference.

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3. Brief facts giving rise to the present petition are as under:

3.1 The petitioner is a resident of village Jaspur, Tal.Kalol, Dist.Gandhinagar where the petitioner is the owner of the the land situated bearing Survey No.57 in the sim of village Jaspur since the year 1969. As stated in the petition, in regard to the adjoining land bearing survey no.3, which is on the southern side of the land to adjoining land of the petitioner, there was dispute between the petitioner and owners of land bearing survey no.3 in respect of easementary right of the petitioner. Some litigations took place between them in competent court in respect of easementary right and ultimately as the petitioner succeeded before the appellate Court as well as before this Court, the petitioner's easementary right of way passing through the land bearing survey no.3 was upheld by this Court. Near the adjoining land bearing survey no.3 on southern side there is a land bearing survey no.2/2. During the pendency of Second Appeal No.58 of 2002, which was dismissed by this Court vide order dated 19.12.2002, the owner of the land bearing survey no.2/2 put up fencing and thereby included the area of 20 X 136 ft on the eastern side of the said land. According to the petitioner, the aforesaid land which was included in the land of owner of survey no.2/2 admeasuring 20 ft X 136 ft is a public road and falls under Gaamtal of village Jaspur.

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3.2 The petitioner preferred Regular Civil Suit No.115 of 2002 before the Civil Court at Kalol whereby he prayed for a declaration that the owner of land bearing Survey No.2/2 had no right to include the said area of 20 ft X 136 ft in the land of owner of survey no.2/2 which according to the petitioner is a public road. The suit was dismissed by the competent Court vide judgement and order dated 28.09.2010.

3.3 Against the said order dated 28.09.2010, the petitioner has preferred an appeal being Appeal No.93 of 2010 before the Court of learned District Judge at Mehsana which was later on transferred to District Court at Gandhinagar, which is given new number being Appeal No.111 of 2012 and the said appeal is still pending.

3.4 According to the petitioner, during the pendency of said Regular Civil Suit No.111 of 2002 [it seems that by mistake in para:9 of the petition, number of the suit is wrongly mentioned as Civil Suit No.111/2002], the owners of the land bearing Survey No.2/2 tried to include 214 sq mtr of land i.e. 20 ft X 136 ft public road in their own land, however, the said action was resisted by the petitioner by preferring an application before the Settlement Commissioner and Director of Land Revenue and ultimately the Settlement Commissioner directed the Deputy Commissioner of Land Records to do the needful and ensured that the limits of land bearing survey no.2/2 are

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kept so as the total area of the said land remains 708 sq mtr vide letter dated 13.06.2008. In turn, the Deputy Commissioner of Land Record vide letter dated 29.08.2009 directed the DILR to do the needful. As per the case of the petitioner, inspite of aforesaid direction, no efforts were made by the owner of the land bearing Survey No.2/2 to legally extend the area of his land.

3.5 It is pertinent to note that in para:8 of the petition, it is stated that the petitioner's Regular Civil Suit No.115 of 2002 for declaration that the owner of the land bearing Survey No.2/2 had no right to include the said area in his land was dismissed on 28.09.2010. The orders were passed and directions were issued by the quashi judicial authority prior to dismissal of the said suit vide order dated 28.09.2010 and, therefore, it can be presumed that these facts were before the competent Court while dismissing the Regular Civil Suit No.115 of 2002 filed by the petitioner.

3.6 It is also pertinent to note that though in the petition right from para:4 to 9, there is a mention about various orders which are referred to hereinabove, passed by various courts below, this Court as well as by quashi judicial authorities, however, none of those orders are placed on record for perusal of this Court.

3.7 As per the case of the petitioner, an auction of 17 housing plots took place in the year 1970 and 17 persons

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were allotted plot out of which owners of plot no.1 to 7 are joined as party respondent nos.7 to 12 in the present petition as the petitioner has urged that respondent nos.7 to 12 have committed encroachment on the aforesaid public road [20 ft X 136 ft].

3.8 It is the case of the petitioner that as the respondent nos. 7 to 12 have committed encroachment over the said public road, the petitioner is making attempts for removal of the said encroachment over since he filed application dated 04.10.2010 before the Gram Panchayat Village Jaspur, Taluka Development Officer, Kalol and District Development Officer, Gandhinagar.

3.9 As per the case of the petitioner on 23.03.2011, the Panchayat removed some encroachment but that was from "Khai" area and encroachment on the public road still continued to remain. As per the case of the petitioner ever since 2010 by making various applications. The petitioner continuously pursued grievance to the various authorities. The petitioner also had to file application under RTI Act to get the information insisted upon by the petitioner and those information also were given to the petitioner after facing rejection initially. The petitioner also represented before the authority to invoke Sections 104 and 105 of Gujarat Gram Panchayat Act, 1993 by making appropriate application to the concerned authorities competent to act and exercise the powers provided under Sections 104 and 105 of the Gujarat Gram Panchayat Act, 1993 but did not

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yield any result and, therefore, ultimately the petitioner preferred Special Civil Application No.12638 of 2016. The said petition was disposed of by this Court (Coram: Honourable Mr.Justice R.M.Chhaya) vide order dated 26.04.2017 by observing in para:3 and 4 as under:

"3. Having heard learned Counsel appearing for the parties considering the statement made by the Talati Cum Mantri - respondent No.6 herein more particularly in paragraph 4 of the affidavit, it appears that the action has been initiated by the respondent - authority as per the provisions of Section 105 of Gujarat Panchayat Act, 1993 (for short "the Act") and hence, no more prayer needs to be granted.

4. The respondent - authority shall follow the procedure as per the provision of Section 105 of the Act as expeditiously as possible. It is however clarified that this Court has not expressed any opinion on merits of the matter."

3.10 Pursuant to the aforesaid order, though as can be seen from the record that the authorities took action and removed the encroachment on 24.08.2017, however, according to the petitioner, the removal of encroachment is merely an eye-wash and, therefore, the petitioner kept pursuing the issue before the various authorities. The petitioner also made an application under RTI Act to get desired information which was given to the petitioner ultimately by providing necessary details. Even thereafter petitioner kept pursuing various authorities for removal of illegal encroachment as per the say of the petitioner. Pursuant to the various applications made by the petitioner,

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various authorities also not only replied to the petitioner but also asked for explanation in respect of follow up action taken by sub-ordinate authorities and though the concerned authority vide their various replies, which are on record, stated that encroachment is removed, according to the petitioner the encroachment of the said public road still exists and, therefore, petitioner being aggrieved by aforesaid action has preferred present petition.

4. Heard learned advocate Mr.Chinmay Gandhin for the petitioner through video conference.

4.1 Mr.Gandhi submitted that all the authorities are hand in gloves with Respondent Nos.7 to 12 and though there is public road passing through eastern side of plot no.127 owned by Respondent Nos.7 to 12, the same has been encroached upon by the Respondent Nos.7 to 12. According to Mr.Gandhi though the petitioner is pursuing the case in respect of encroachment on public road by Respondent Nos.7 to 12 before the Respondent Nos.1 to 6 since 04.10.2010, for one reason or another, no concrete action being taken against the encroachers i.e. Respondent Nos.7 to 12. Mr.Gandhi submitted that the order dated 26.04.2017 in Special Civil Application No.12638 of 2016 has not been complied with by Respondent Nos.1 to 6 authorities in its true letter and spirit and, therefore, though all throughout it is put on papers by the authority that encroachment on the public road has been removed, the same still exists. In support of his contention, learned

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advocate Mr.Gandhi drew attention of this Court to the photographs which are annexed along with this petition on page nos.96 to 98. The photographs are on page:98 which bears the date 03.02.2021.

4.2 After showing the photographs Mr.Gandhi drew attention of this Court to series of communications between the petitioner and various authorities as well as internal communication between the authorities. On the basis of the said communication, learned advocate Mr.Gandhi tried to point out that though it is reported by the authority that on 24.08.2017, the encroachment carried out by Respondent Nos.6, 7 to 12 was removed, in reality the same was not removed and the said encroachment is still there. According to Mr.Gandhi as the petitioner is the resident of village Jaspur and he has right to access the public road, which is encroached upon by Respondent Nos.7 to 12, he has preferred present petition against the inaction of Respondent Nos.1 to 6 quashi judicial / local authorities and, therefore, learned advocate Mr.Gandhi prayed for issuance of necessary orders against the respondents.

5. Learned Assistant Government Pleader Ms.Nidhi Vyas vehemently opposed the petition and submitted that petitioner may be a resident of village Jaspur and he might be residing there since 1969 as stated in the petition. However, learned Assistant Government Pleader drew attention of the Court that the petitioner had already preferred a suit for declaration being Regular Civil Suit

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No.115 of 2002 before the Civil Court at Kalol which was dismissed by judgment and order dated 28.09.2010. From para:7 of the petition, attention of the Court is drawn to the fact that suit was specifically preferred by the petitioner with a prayer for declaration that owner of the land bearing survey no.2/2 had no right to include the area of 20 ft X 16 ft in his land, which actually is a public road and to block the way of the petitioner from commuting through the said area. The petitioner also prayed that respondents in the said suit may be ordered to remove fencing from the said area. She submitted that the competent Civil Court dismissed the aforesaid suit by judgment and order dated 28.09.2010 against which the petitioner has already preferred Regular Civil Appeal being Appeal No.93 of 2010 which was later on transferred to District Court, Gandhinagar and renumbered as Appeal no.111 of 2012. She submitted that nowhere in the petition, the petitioner has stated as to whether the aforesaid order dated 28.09.2010 passed by the Civil Court at Kalol in RCS No.115 of 2002 has been stayed or not. She further drew attention of the Court that the timing of the petitioner's first application before the quashi judicial authority may also be seen. She submitted that the suit preferred by the petitioner was dismissed by the judgment and order dated 28.09.2010 and immediately thereafter on 04.10.2010 the petitioner preferred application to various authorities for removal of the said encroachment. Learned Assistant Government Pleader drew attention of the Court to para:14 of the petition and the averments made by the

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petitioner in respect of his application dated 04.10.2010. It was also pointed out to the Court that though in para:18 of the petition, it is stated that the appeal which is pending being Appeal No.111 of 2012 before the Competent Court on Gandhinagar, the said case is between the private parties whereas by way of this petition, the petitioner has prayed for removal of encroachment from the public road, which is within the power and duty of Panchayat as per Sections 104 and 105 of the Act. According to Ms.Vyas the averments made in para:18 of the petition, runs contrary to the averments made in para:7 of the petition as it is specifically stated in para:7 in reference of the prayer made in the suit by the petitioner that the respondent be ordered to remove fencing from the said area i.e. public road of 20 ft X 136 ft and, therefore, petitioner's prayer in respect of removal of fencing has has already been rejected, as the suit is rejected by order dated 28.09.2010.

5.1 She further pointed out that no document or order in respect of orders passed by the competent Court in respect of previous litigation are produced on record by petitioner and though averments are made in the petition, in absence of any order substantiating averments made in petition can be said to be suppression. She further submitted that the authorities have made all efforts to comply with the order passed by this Court vide order dated 26.04.2017 in Special Civil Application No. 12638 of of 2016 and time and again at various point of time the authorities have stated vide

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various communication that the encroachment on public road is removed. She also drew attention of the Court to the various applications made by the petitioner and pointed out that petitioner is in fact trying to dictate the terms with authority as can be seen from the language of various communications which may not be permitted by the Court. This petition is nothing but attempt on the part of the petitioner to achieve something indirectly for which the petitioner has failed as his Regular Civil Suit No.115 of 2005 is dismissed and appeal is pending and prayed for dismissal of the suit with costs.

6. After having gone through the record of the petition and after considering the submissions made by learned advocate Mr.Gandhi as well as Ms.Nidhi Vyas, I am of the view that it is undisputed fact that the petitioner has failed in his attempt whereby he prayed for declaration and for direction of removal of encroachment as his Regular Civil Suit No.115 of 2002 is already dismissed vide order dated 28.09.2010. It is equally true that though the petitioner has tried to explain in the petition very craftily that the nature of grounds and relief prayed in this petition are different and distinct than the one prayed for by the petitioner in Regular Civil Suit No.115 of 2002 and Appeal No.111 of 2012, but at the same time it is equally true that the petitioner has not produced any document in respect of earlier litigation on record and, therefore, the Court is constrained to consider case of the petitioner only on the basis of the averments

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made in the petition and argument advanced by learned advocate Mr.Gandhi. The record also clearly establishes the fact that the alleged encroachment on public road was done by Respondent Nos.7 to 12 who was allotted the plot no.1 to 7 as back as in the year 1971. However, for the first time, the petitioner preferred civil suit and prayed for declaration and direction in respect of removal of encroachment only in the year 2002, which shows that the petitioner was aware about the aforesaid encroachment since 2002 at least if not prior to it. But the petitioner made first application to the local authorities only on 04.10.2010 i.e. after the petitioner failed in the suit as the suit was dismissed by the competent Court vide order dated 28.09.2010 which substantiates the argument of learned AGP Ms.Vyas that as the petitioner failed in his direct attempt to get declaration as prayed for in the suit and direction for removal of encroachment, the petitioner started pursuing other remedies. Even today, the petitioner's appeal being Appeal No.111 of 2012 is pending. According to the petitioner, though the order dated 26.04.2017 was passed in Special Civil Application No.12638 of 2016, which is not complied with by the respondent nos.1 to 6, in its true letter and spirit, though the petitioner has entered into lots of communications with the local authorities and has gone even to asking the authorities to draw fresh panchnama as well as to the extent that authorities were threatened by the petitioner that the petitioner would prefer application under Contempt of Court Act, the petitioner did not make any attempt.

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Atleast as it can be seen from the record that the Appeal No.111 of 2015 pending before the Court at Gandhinagar is heard, nor any application was made before this Court either in Special Civil Application No.12638 of 2016 pointing out that the order dated 26.04.2017 has not been complied with in its true letter and spirit by the respondent authorities. Though the respondents were threatened by the petitioner as can be seen from the communication annexed by the petitioner himself, that he will prefer an appropriate application for committing contempt of the order passed by this Court by the authorities, the petitioner did not even prefer any application for contempt. All these conduct of petitioner shows that the petitioner is more interested in harassing respondents including respondent nos. 7 to 12 and is trying to dictate the terms with them. A track record of the petitioner suggests that petitioner is warmonger and has quarrelsome mentality. Firstly, he had dispute with owner of land bearing survey no.3 in respect of easmentary right. Thereafter the petitioner preferred Civil Suit No.115 of 2002 against order of ownership of land bearing survey no.2/2 than the petitioner preferred application against Respondent Nos.7 to 12 since 2012 and in between all the while the petitioner was busy raising one grievance or another before the Settlement Commissioner, DILR , Respondent Nos.1 to 6 and also made various application under RTI as well as in Swagat Programme of Hon'ble the Chief Minister. The petitioner has a habit of questioning the every order that is not passed according to whims of the

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petitioner. Of course, if the same is permitted legally by way of preferring application before the appropriate forum, this Court cannot come in the way of petitioner but at the same time at the time of adjudicating such issue this Court cannot shut its eyes also from seeing those glaring facts. The authorities have time and again submitted various replies, explained the position, tendered the explanation to the higher authorities stating that the encroachment committed by Respondent Nos.7 to 12 is removed. Those communications bearing different dates i.e. dated 24.08.2017, 23.10.2017, 25.09.2017 and 19.08.2020 are also on record at page nos. 52, 57, 59 and 87 respectively along with the Panch Rojkam dated 24.08.2017, which is at page no.54. However, according to the petitioner the same is nothing but an eye wash. The petitioner wants implementation of the orders passed by this Court dated 26.04.2017 in Special Civil Application No.12638 of 2016, in the manner in which he interprets it and he wants it to be implemented, in the manner he wants it to be implemented.

6.1 As far as the photographs placed on record and relied upon by the petitioner are concerned, those photographs cannot give clear picture about the fact that whether road has been encroached upon or not and to what extent it is encroached upon and the same is encroached upon or not whether the same can be said to be encroachment or not, whether these photographs are take on the very date mentioned in the photographs or not or depicts the very

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road or portion are all debatable issues and disputed questions of facts. The Court cannot merely on the basis of photographs issue notice to the respondents and can call them to appear before the Court just to satisfy the ego of the petitioner. When the authorities have in no certain terms stated through various communications that encroachment has already been removed by them, I do not see any reason not to believe the version of authorities and to issue notice. It is also worthwhile to mention that on the very first hearing on 08.03.2021 it was put to petitioner as to whether the petitioner is ready and willing to deposit sum of Rs.25,000/- in respect of each respondent, amounting to Rs.3,00,00 (Rupees Three Lakhs Only) being Rs.25,000 X 12 respondents) towards cost of the petition, learned advocate Mr.Gandhi submitted that the petitioner is ready and willing to deposit total sum of Rs.25,000/- towards cost but not ready to bear the cost towards respondent who are 12 in numbers. Therefore, when the authorities have categorically stated vide various communications that encroachment has been removed when an appeal against the order dated 28.09.2010 is pending before the Court of Gandhinagar being Appeal No.111 of 2012 and when petitioner has not shown any willingness to deposit total sum of Rs.3,00,000/- (Rupees Three Lakhs Only) towards the cost, I do not deem it appropriate even to issue notice and thereby unnecessarily call upon all the respondents to this Court.

6.2    This Court is also of the firmed view that when appeal






            C/SCA/4449/2021                            ORDER

in respect of declaration and removal of encroachment in respect of very same issue is pending before the competent Court at Gandhinagar, if this petition is entertained, in that case, that appeal would become infructuous. When evidence is taken in the main civil suit and the same is decided on the basis of evidence, it would not be in the interest of justice to entertain this petition and to go into merit of the matter on the basis of documents / evidence bypassing the oral as well as documentary evidence which has been considered by the competent civil court and dismissed the suit of the petitioner.

7. In view of the above discussion, the present petition deserves to be dismissed and the same is dismissed accordingly. No order as to costs.

(NIRZAR S. DESAI,J) MISHRA AMIT V.