Bhikhubhai Raydhanji Musla v. State Of Gujarat

A.Y. Kogje, J.:— This petition under Article 226 of the Constitution of India is filed with a prayer challenging the notices issued dated 31.07.2021 under Section 105 of the Gujarat Panchayats Act.

2. According to the petitioners, the petitioners have been in occupation of the plot of land which is sought to be vacated and are using it for their residential purpose since several decades and if the action, as contemplated under the impugned notice is taken, the petitioners will be rendered homeless.

3. According to the petitioners, the petitioners were not given an opportunity of hearing to establish any right before the authority before treating the petitioners to be an encroachers on the land in question.

4. Learned advocate for the respondent-corporation submitted that on the basis of affidavit-in-reply that the land in question is a Gauchar land and is encroached by the petitioners.

5. Attention is drawn of this Court in Paragraph No. 5 of the reply, he has indicated that the Revenue Survey No. 74 is running in the revenue record as a Gauchar land and as the petitioners have encroached upon this upon this revenue survey number and that too such encroachment is the huge encroachment to the extent of almost 10,000 Sqr. Mtrs., the panchayat was constrained to act.

6. Learned advocate for the petitioners, in rejoinder, submitted that the petitioners are only seeking an opportunity to represent his case before the authority, and thereafter, if the authorities are not constrained, they may take any action as per the provisions of law.

7. Having considered the rival submissions of the parties and having perused the documents on record, the challenges to the notice dated 31.07.2021 which is a notice issued in exercise of powers under Section 105 of the Gujarat Panchayats Act.

8. Considering the averments made in the affidavit-in-reply, it appears that the action under Section 105 of the Gujarat Panchayats Act was contemplated in view of the several pronouncement of the Supreme Court, which indicated the usage of Gauchar land is only for the purpose of grazing animals and cannot be utilize for any other purpose and hence, the respondent-panchayat has undertaken the survey of the land falling within the revenue of the Village Gram Panchayat and has found several encroachments on Survey No. 235, 236, 370 & 374 to the extent of 3,58,647 Sqr. Mtrs. It appears that the respondents have undertaken the survey through DILR, Palanpur, who has carried out the survey on 28.06.2021 and submitted his report to the extent that there are 67 encroachments on the Gauchar lands. Apparently, in view of such exercise being undertaken in exercise of powers under Section 105 of the Gujarat Panchayats Act, the notices have been issued.

9. Considering the submissions made by the learned advocate for the petitioner that the petitioners are in occupation for their residential purpose and that their representation is already filed and pending before the Collector with the copy addressed to the Gram Panchayat, it would be appropriate to direct the Gram Panchayat to decide such representation within a period of two weeks from today for initiating the action, as contemplated under Section 105 of the Gujarat Panchayats Act.

10. With the aforesaid, the present petition stands disposed of.