Rajesh H. Shukla, J.:— The present Petition is filed by the Petitioner under Articles 14, 19, 21, 226 and 227 of the Constitution of India as well as under the provisions of the Gujarat Panchayats Act, 1993 for the prayers as prayed for in the Petition inter alia that appropriate writ, order or direction may be issued for quashing and setting aside the order dated 31.5.2016 passed by Respondent No. 1 on the grounds stated in the memo of petition.
2. Heard learned Advocate Shri. K.T Dave for the Petitioner and learned Advocate Ms. Kruti M. Shah appearing on Caveat for Respondent No. 5.
3. Learned Advocate Shri. K.T Dave has referred to the papers at length and made the submissions that the appeal could not have been preferred against a dead person, and in any case, opportunity could have been provided to the legal heirs, and no such application has been given. Learned Advocate Shri. Dave also submitted that there is no explanation for delay in filing the appeal, for which, he pointedly referred to the dates from 28.6.2011 to 28.3.2015 Learned Advocate Shri. Dave submitted that there is neither any justification nor any application for condonation of delay, and therefore, it suggests that the appellate committee, under the influence of Respondent No. 5, has proceeded to decide dehors the provisions and also the well established procedure. Learned Advocate Shri. Dave also referred to the order at Annexure-A to highlight the conduct of the appellate committee and also submitted that the order passed by the appellate committee is beyond the scope and jurisdiction of the powers under Section 242 of the Gujarat Panchayats Act. He also produced a copy of the Notice under Section 135(D) of the Bombay Land Revenue Code to suggest that the names of the owners are stated including Premnath Radheshyam Shukla, and nobody has made any claim or disputed about the title or the ownership of the land in question. Learned Advocate Shri. Dave therefore submitted that the appellate committee could not have proceeded in absence of the legal heirs of the deceased and the order is without jurisdiction. He also referred to the papers and the order passed by th appellate committee at Annexure-A and submitted that it only suggests that they have proceeded at the instance of Respondent No. 5. He therefore submitted that the order passed is not only without jurisdiction but also in violation of principles of natural justice and without considering the relevant records.
4. Learned Advocate Shri. K.T Dave submitted that sufficient cause has been made out and it is factually incorrect that there was no application for condonation of delay or there was no justification.
5. Learned Advocate Ms. Kruti M. Shah, who is appearing on Caveat for Respondent No. 5 has referred to the affidavit at page 118 and submitted that the first contention about the aspect of delay is factually incorrect. For that purpose, she submitted that in the proceedings, before the application for delay condonation has been given with reasons for condonation of delay that the Respondent No. 5 purchased from one Barkat Ali, who was not attending regularly and residing at Surat. Therefore, when it came to the notice, Respondent No. 5 collected the papers and proceeded.
6. Learned Advocate Ms. Kruti M. Shah also referred to the background and the papers and submitted that though it is contended that the order is against a dead person without bringing the heirs or without hearing anybody, is misconceived. Learned Advocate Ms. Shah submitted that the objection or the case was against Abhiram Tea Center and the nephew of the present Petitioner Shiv Poojan has participated in the proceedings and had been given sufficient opportunity, which can be verified from the record. She submitted that even the Advocate had represented and as it is evident that it is on the margin land of the road, the unauthorized construction is sought to be removed. Learned Advocate Ms. Shah also referred to the Notice for the measurement by the DLR produced at page 128 and submitted that even this measurement was carried out in presence of Shiv Poojan Shukla for Abhiram Tea Center and after verification with regard to the exact location of the Tea Center at Final Plot No. 58 paiki, the order came to be passed by the appellate committee for removal of unauthorized construction/structure, which was on the road. She also referred to the fact that it was already a road earlier and thereafter it was made a pakka road, meaning thereby, it is a land meant for the road, which has been encroached upon, and therefore, after the order was passed by the appellate committee, the notice has also again served dated 27.6.2016 at Annexure-G. Therefore, learned Advocate Ms. Shah submitted that the present petition may not be entertained.
7. Learned Advocate Ms. Shah pointedly referred to the provisions of the Gujarat Panchayats Act, particularly Section 243, which referred to the Appeal Committee to exercise appellate powers of district panchayat. Section 243(1) provide that the powers could be exercised in respect of what has been provided in Sections 104, 200 and 241. Learned Advocate Ms. Shah submitted that Section 104 referred to the Contol on erection of buildings of such unauthorized construction. She therefore submitted that the petition is not maintainable. She also submitted that in fact alternative efficacious remedy is available by way of revision under Section 259 before the State Government and therefore the present petition may not be entertained.
8. In rejoinder, learned Advocate Shri. K.T Dave reiterated the contentions and again emphasized that the alternate remedy would not be barred by exercise of jurisdiction of this Court. He also submitted that for the delay, sufficient cause or the justification has not been considered and he also submitted that the impugned order is without jurisdiction and without any authority and in any case without providing an opportunity to the legal heirs of the deceased. Learned Advocate Shri. Dave also maintained and submitted that the land for which the notice under Section 135(D) of the Bombay Land Revenue Code has been served, would prima facie suggest about his ownership and the title, and therefore, without proper verification, it could not have been passed, particularly when the officer also suggested that he can say on the basis of verification of the record. He therefore submitted that the present petition may be admitted and interim relief may be granted.
9. In view the rival submissions, it is required to be considered whether the present petition deserve consideration.
10. Though the detailed arguments have been made, the short point which is required to be considered is whether such a petition could be permitted and the submissions which have been made referring to the papers, require close scrutiny. It is not in dispute that the Panchayat can pass a resolution in exercise of powers including the resolution for removal of unauthorized construction on the road. The discussion which has been made with regard to the aspect of road is whether it was a kacha road belonging to the panchayat or the village panchayat, but the fact remains that it was a road. The Notice under Section 135(D) of the Bombay Land Revenue Code produced by learned Advocate Shri. K.T Dave may not be sufficient to draw a presumption that the construction of the Abhiram Tea Center is not an encroachment on the road. The 135(D) Notice at the most suggest about the entry with regard to the Survey number showing the name of the heirs of the deceased Radhey Shyam. However when the particular tea center is on the margin road, and whether it is an encroachment or not, is required to be considered. The DLR had carried out the measurement, and after verification, as it is found on the road, it is sought to be removed, for which the petitioner cannot make any grievance even if he may be having the land adjacent to any such road. Moreover, the submission about the non-compliance of the rules of natural justice or the denial of opportunity to all the heirs or not joining the heirs as a party in the proceedings of appeal, is throughly misconceived. Such proceedings are in the nature of quasi judicial proceedings and particularly when the Abhiram Tea Center, which is represented by the nephew of the Petitioner as Karta or the Manager of the Tea Center, who also, not only remained present but was also heard and was also allowed to represent through the lawyer, would not justify any such submission about the denial of opportunity or violation of rules of natural justice. Assuming that the land as per Section 135(D) belonging to the Petitioner is a different issue altogether inasmuch as the issue is with regard to the encroachment on the road by the Abhiram Tea Center, which was managed by one Shiv Poojan Shukla, the nephew, who was managing throughout and who has been heard throughout. As rightly pointed out, the provisions of Section 243 read as follows:—
“243. Appeal Committee to exercise appellate powers of district panchayats. (1) Notwithstanding anything contained in section 145, the appellate powers conferred on a district panchayat under section 104, 200 and 241 shall be exercisable by an Appeal Committee of the district panchayat, which shall consist of the President of the panchayat and four other members of the panchayats as may be chosen by the panchayat from amongst its members.”.
11. It starts from non-obstante clause and provides that the appellate powers conferred on a district panchayat under Section 104, 200 and 241 shall be exercised by an appellate committee of the district panchayat, which shall consist of the President of the panchayat and four other members of the panchayats as may be chosen by the panchayat from amongst its members. Therefore, it would certainly have all the powers under Section 104 which again referred to the control and regulation of erection of building. As could be seen from the provisions of Section 104 it provides that erection could not be made without necessary permission and following the procedure. Admittedly, there is no such permission or anything placed on record. In any case, when the construction of the Abhiram Tea Center is found to be on a margin road, even in the verification by the DLR, which is placed on record, any such submission made by learned Advocate Shri. K.T Dave for the Petitioner cannot be readily accepted. Therefore, the present Petition deserve to be dismissed in limine and accordingly stands dismissed.