1. This petition under Article-226 of the Constitution of India has been preferred, with the following prayers :
"(A) Be pleased to admit and allow this petition;
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to take action in the pursuance to the notice dated 21.1.2012 after taking into consideration the explanation offered by the petitioner and after informing the petitioner the reasons for the rejection thereof;
(C) Pending admission, hearing and final disposal of this petition, be pleased to restrain the petitioners from executing and implementing the notice dated 21.1.2012 issued by respondent No.3 to the petitioner, more particularly the notice produced at Annexure-A to this petition;
(D) Be pleased to grant any other relief which deems fit and proper in the interest of justice."
2. Briefly stated, the facts of the case, as emerging from the averments made in the petition are that, the petitioner moved an application in the year 2002 for regularizing the encroachment to the Competent Authority, in the Revenue Department of the State Government. Pursuant thereto, on 25.12.2004, the Revenue Department had communicated to the Collector, Banaskantha directing the Collector to record the Panchnama and take necessary steps. In response thereto, the Collector, Banaskantha, in the presence of the Mamlatdar, has recorded a Panchnama on 15.10.2008. According to the petitioner, it is stated in the Panchnama that insofar as Plot No.31 is concerned, the petitioner has removed the encroachment from 4.42 sq. mtrs. and has not constructed anything over the drainage line. On 08.12.2010, the Collector, Banaskantha issued an order, directing the petitioner to regularize the construction upon payment of an amount of Rs.6,33,636/-. The petitioner found the price to be excessive, therefore, he approached the Revenue Department by filing a Revision Application, being Revision Application No.45/2010 before the Special Secretary (Appeals), who, vide order dated 28.01.2011 granted ad-interim relief in favour of the petitioner. It appears that this Court had passed an order dated 07.04.2011 in Special Civil Application No.384/2011, directing the Collector to take appropriate steps to remove the illegal constructions that were found to be in violation of the Ribbon Development Rules.
2.1 The Palanpur Municipality (Respondent No.3) issued notice dated 21.01.2012, to the petitioner, directing him to remove the unauthorized construction from the Sukhbaug Road (Annexure-A to the petition), that has been carried out in violation of the Ribbon Development Rules, within 24 hours. It is stated in the memorandum of the petition that the petitioner has submitted a reply to the said notice. The apprehension of the petitioner is that, without considering the reply filed by him, respondent No.3 would start demolition of the construction. Hence, the petition.
3. Mr.D.P.Kinarivala, learned advocate for the petitioner has submitted that according to the Panchnama, the petitioner has removed more than 3.60 sq.mtrs. of the illegal construction, which has not been taken into consideration by respondent No.3, while issuing the impugned notice. Referring to the document dated 25.12.2004 (Annexure-C to the petition), it is submitted that as per this document, the illegal construction that is within the road line is of 3.60 sq.mtrs., which aspect has also not been taken into consideration by the respondents. No other submission has been advanced by the learned advocate for the petitioner.
4. Mr.Pranav S. Dave, learned Assistant Government Pleader appearing for the State Government (Respondent No.1) on supply of an advance copy of the petition submits that, as stated in the impugned notice, the petitioner has not produced any documents, to show that he is authorized to make construction within Central Road Line, in spite of sufficient opportunity being granted to him. It is further submitted that the very fact that the petitioner has applied to the State Government to regularize the encroachment is proof enough that the construction is illegal, therefore, this Court may not interfere with impugned notice.
5. Having heard the learned advocate for the petitioner and the learned Assistant Government Pleader for respondent No.1 and upon perusal of the material on record, it is clear that the petitioner has preferred an application for regularization of the encroachment to the Collector, who has, by order dated 08.12.2011, directed the petitioner to pay an amount of Rs.6,33,636/- for regularization of the same. This order of the Collector has been challenged by the petitioner by filing a Revision Application before the Special Secretary (Appeals), Revenue Department, which is still pending, as of date.
6. In view of the above, it would not be appropriate for this Court to entertain the petition, when the matter is pending before the competent Revenue Authority. Insofar as the impugned notice dated 21.01.2012 is concerned, a perusal thereof makes it evident that the petitioner has been granted ample opportunities to produce proof regarding the aspect that the construction made by him is authorized, but has failed to do so. It appears that the notice has been issued pursuant to order dated 07.04.2011 of this Court, passed in Special Civil Application No.384/2011. It is stated by the learned advocate for the petitioner upon instruction, that so far, no action regarding demolition of the construction has been taken by respondent No.3. Reference has been made by the learned advocate for the petitioner to the Rojkam. However, this Court does not find it appropriate to go into those details, as it is only the Competent Authority, who would be in a position to know whether the encroachment made by the petitioner still remains or has been removed by him, and, if so, to what extent.
7. A grievance has been made by the petitioner that the reply to the impugned Show Cause Notice has not been considered. In this regard, it is open to the petitioner to approach the respondent No.3 to consider the reply submitted by the petitioner before taking any further action.
For the aforestated reasons, the petition cannot be entertained.
Subject to the above, the petition is rejected.
Direct service of this order is permitted.
(Smt.
Abhilasha Kumari, J.) ~gaurav~