Gujarat High Court

Kanchanben Kamleshbhai Chauhan vs State Of Gujarat on 13 October, 2022

Bench: Sandeep N. Bhatt

     C/SCA/6213/2019                                          ORDER DATED: 13/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6213 of 2019

==========================================================
                   KANCHANBEN KAMLESHBHAI CHAUHAN
                                Versus
                          STATE OF GUJARAT
==========================================================
Appearance:
MR MANOJ SHRIMALI(2331) for the Petitioner
MR MEET THAKKAR, AGP for the Respondent(s) No. 1 & 2 - State
MR HS MUNSHAW(495) for the Respondent(s) No. 3 - District Panchayat
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 13/10/2022

                                    ORAL ORDER

1. The petitioner has preferred this petition with the

following main prayers :

"8(a) To quash and set aside the orders dated 28/02/2019 passed by the respondent no.2 in Dispute Application No.76/2018 (Annexure-A) and dated 06/11/2018 passed by the respondent no.3 (Annexure-L) in the interest of justice.

(b) To direct the respondent authorities not to disturb the service of the petitioner and not to remove the petitioner from the post of Sarpanch of Khilos Gram Panchayat in the interest of justice.

(c) To direct the respondent authorities to do

C/SCA/6213/2019 ORDER DATED: 13/10/2022

measurement of the disputed land and submit the report regarding the same within a time limit prescribed by the Hon'ble Court in the interest of justice.

(d) Pending admission and final hearing of this petition Your Lordship may be pleased to stay the implementation, execution and operation of further process of the orders dated 28.02.2019 passed by the respondent no.2 in Dispute Application No.76/2018 (Annexure-A) and dated 06/11/2018 passed by the respondent no.3 (Annexure-L) in the interest of justice.

(e) xxx "

2. Heard learned advocates for the respective parties.

3.1 The main contention of Mr.Manoj Shrimali, learned

advocate for the petitioner is that pursuant to the provisions

of Section 57(1) of the Gujarat Panchayats Act, 1993 the

notice qua illegal encroachment is issued to the present

petitioner within three months period after the election of the

Panchayat.

3.2 He has submitted that since the petitioner is

coming from lower strata of the society, the society has some

prejudice and therefore, the action is taken by the

authorities.

C/SCA/6213/2019 ORDER DATED: 13/10/2022

3.3 He has further submitted that the act prior to the

election cannot be attributed to the petitioner's account and

accordingly, the petitioner is penalized for the encroachment

made in 14 cases. He has further submitted that it is also

not correct that the petitioner has not taken any action. He

has submitted that the petitioner has issued notices to such

encroachers and the encroachers have approached this Court

by way of filing various petitions and those petitions are still

pending before this Court and are awaiting final adjudication.

He has further submitted that there is no justification given

in the order passed by the Authorities. He has submitted

that though the order impugned is concurrent and is not in

accordance with the law and is passed by not properly

considering the provisions of Section 57(1) of the Act.

3.4 He has submitted that the Sarpanch cannot be

held liable for the purpose of encroachment committed by

some persons of the village. In support of his submissions

and for the purpose of scope of Section 57(1) of the Act, he

has relied upon the decisions of this Court in the case of :-

(i) Gitaben W/o. Fulsinh Thakor versus State of Gujarat

reported in 2015 LawSuit (Guj.) 392, more particularly Para :

22 thereof and (ii) Patel Satishchandra Amrutlal versus State of Gujarat recorded on Special Civil Application

C/SCA/6213/2019 ORDER DATED: 13/10/2022

No.2073 of 2000 decided on 05.05.2000.

3.5 He has also relied upon the decisions of this

Court in the case of Gandabhai Amthabhai Thakor versus

State of Gujarat recorded on Special Civil Application No.22061 of 2019, dated 29.10.2020, more particularly Para : 21 and 22 thereof and lastly, he has relied upon the decision

of Hon'ble Apex Court in the case of Sagar Pandurang Dhundare versus Keshav Aaba Patil recorded on Civil Appeal No.2306-2307 of 2017, more particularly Para : 13 thereof and has submitted that in view of these judgments, public

servant cannot be disqualified on the ground of encroachment.

3.6 He has further submitted that unless fresh

measurement is carried out by the DILR, the Village

Panchayat cannot take any action. He has submitted that

therefore, the authority has committed an error by holding

the petitioner liable. He has submitted that the present

petition is required to be allowed in terms of prayer made in

the present petition by quashing and setting aside the

impugned order.

4.1 Per contra, Mr. Munshaw, learned advocate for respondent no.3 - District Panchayat has submitted that the

husband of the present petitioner Mr. Kamleshbhai Chauhan

C/SCA/6213/2019 ORDER DATED: 13/10/2022

has encroached 15150 sq.mtrs., of land of Revenue Survey

No.153/2 mouje Village : Khilos. He has submitted that the

said land is Gauchar land. The petitioner is trying to protect

her husband. He has referred to the statement made by the

petitioner before the Taluka Development Officer on

11.10.2018 where the petitioner has specifically stated that

there is another land, which is a Government Waste Land,

where the Wind Mill is installed by one company, which is

in fact a Gauchar land and therefore, unless some

measurement is carried out, he is not willing to take any

action.

4.2 Moreover, Mr.Munshaw, learned advocate for the

District Panchayat has drawn the attention of this Court

towards affidavit in reply and the documents which are

supplied, wherein a report of the Taluka Development Officer

dated 11.10.2018 is there, wherein it is specifically reported

that though there is encroachment of Gauchar land in village

Khilos and after recording statement of Sarpanch of that

village and therefore, as indicated above, the petitioner has

not shown her willingness to act further for removal of

encroachment as unless there is fresh measurement of the

land in question. In that report, the Taluka Development

Officer has reported that measurement-sheet is already

available of said revenue Survey No.153/2, where there is

C/SCA/6213/2019 ORDER DATED: 13/10/2022

specific mention about the encroachment of the land in

question and the said encroachment is available with the

village panchayat and therefore, the conduct of the petitioner

is such that with a view to protect the encroachment and

more particularly her husband.

4.3 He has further submitted that there are more

than 14 encroachers in the said village and yet no action is

taken by the authorities under Section 57 of the Act and

since there is concurrent findings of all the authorities which

are in consonance with law, this Court should not exercise

the powers under Article 226 / 227 of the Constitution of

India.

4.4 In support of his submissions, he has relied upon

the decisions in the case of :- (i) Janabai Versus Additional

Commissioner reported in (2018) 18 SCC 196 and (ii)

Bhikhabhai Rajabhai Vegda Versus State of Gujarat reported in (2010) 1 GCD 465 and has submitted that these two

judgments are directly applicable in the facts of the present

case as in those cases, the relatives of the Sarpanch have

encroached the land. He has submitted that this petition

deserves to be dismissed.

5.1 Mr. Meet Thakkar, learned AGP for the State

C/SCA/6213/2019 ORDER DATED: 13/10/2022

Authorities has supported the contentions raised by

Mr.Munshaw, learned advocate for the District Panchayat. He

has drawn the attention of this Court that the judgments

which are cited at the bar by the learned advocate for the

petitioner, are not helpful to the petitioner in the facts of

this case as the judgment which is of the Hon'ble Apex

Court in Civil Appeal No.2306-2307 of 2017 pertains to

disqualification of the members and that is also under the

provisions of the Maharashtra Panchayats Act.

5.2 Moreover, he has further submitted that the

judgments of this Court which are cited by the learned

advocate for the petitioner, where the Authority has not

formed any opinion about the unauthorised encroachment.

Therefore, he has submitted that the facts of those cases are

different from this petition and are therefore not applicable.

He has submitted that this petition may be dismissed.

6.1 I have considered the rival submissions of the

parties and after going through the averments made in the

affidavit in reply as well as going through the impugned

orders passed by the authorities, this Court finds that the

authorities have given detail reasons with supporting

material. It also transpires that the petitioner is heard by all

the authority and therefore, principles of natural justice are

C/SCA/6213/2019 ORDER DATED: 13/10/2022

followed. It also transpires that though the land in question

is Gauchar land, more than 14 encroachers are found on the

land of Survey no.253 of Village : Khilos. It is also found

that though the measurement-sheet is available on record of

the village panchayat, the petitioner has tried to dispute such

measurement-sheet by insisting that fresh measurement

should be carried out though the petitioner is acting as

Sarpanch and with a view to protect her husband - one of

the encroachers. It is also found that her husband -

Kamleshbhai Chauhan has encroached 15150 sq.mtrs.,

gauchar land of Revenue Survey No.153/2 of village Khilos.

At this stage, it is fruitful to refer to the provisions of

Section 57(1) of the Act, which reads as under :

"57. Removal from office. (1) The competent authority may remove from office any member of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch therof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat."

C/SCA/6213/2019 ORDER DATED: 13/10/2022

6.2 Considering the ratio of the judgments which are

cited at the bar by learned advocate Mr.Shrimali for the

petitioner, I am in agreement with the law laid down by the

Hon'ble Apex Court, but the same are not applicable to the

facts of the present case as indicated by learned AGP Mr.

Thakkar. On the contrary, the judgments which are cited at

the bar by Mr.Munshaw helps the case of the respondents

which pertain to encroachment, more particularly the

judgment of our High Court in the case of Bhikhabhai Rajabhai Vegda (supra), wherein also, encroachment was upon the gauchar land and removal from the post of Deputy

Sarpanch and it pertains to the provisions of Section 57 of

the Act. In that case, the fact is established that the

petitioner himself has encroached the land. In the present

case, the husband of the petitioner is the encroacher.

6.3 Though the petitioner has acted as Sarpanch for

more than three months when the proceedings are initiated

and prior to that also, the petitioner was well aware about

the fact that her husband has encroached the land in

question, which is a gauchar land. The Hon'ble Apex Court

as well as this Court has time and again has taken a view

that the encroachment on the gauchar land cannot be

permitted and under these circumstances, the action taken by