1. As per the order passed by this Court today in Miscellaneous Civil Application No.2590 of 2012, since, the main matter is restored, the present petition is required to be considered.
2. The petitioners of this petition has challenged the legality and validity of the order passed by the State Government in revisional jurisdiction, whereby the order of the District Panchayat as well as the notice issued by the Sarpanch of Thara Gram Panchayat have been confirmed.
3. The short facts of the case are that a notice was issued by the Gram Panchayat Thara, calling upon the petitioner to vacate the encroachment made by him, whereas it is the case of the petitioners that there is no encroachment and he had been occupying the land, which was held by him. The decision of the Gram Panchayat was carried in appeal by the petitioner before the District Panchayat and the said appeal came to be dismissed vide order dated 24.06.1992. The matter was further carried in Revision before the State Government by the petitioner and the State Government vide order dated 19.07.1999 dismissed the same. It is under these circumstances, the present petition before this Court.
4. It may be recorded that the petitioner did preferred review application against the order dated 19.07.1999 passed by the State Government, but, the said review application has been dismissed on the ground that there are no powers for review and the same is communicated to the petitioner vide letter dated 09.09.1999.
5. I have heard Mr. Jadeja, learned Counsel for the petitioner and Ms. Thakkar, learned AGP for the State Authorities and Mr. Chauhan, learned Counsel, for Mr. Munshaw, learned Counsel for both Gram Panchayat and District Panchayat.
6. Mr. Jadeja, learned Counsel for the petitioner, at the outset, submitted that after the order was passed by the State Government, pending the present proceedings, the legal heirs of the petitioner have preferred an application before the Mamlatdar under Section-37(2) of the Land Revenue Code for holding inquiry as to whether the the land in question is a government land or not and now, in the said proceedings vide order dated 19.07.2002, the Mamlatdar has found that the land ad-measuring 0-A 28 gunthas, forming part of Survey No.180 of Village : Thara, Taluka : Kankrej, belongs to the private ownership of the applicant therein-petitioner, herein, who are the legal heirs of the original petitioner. He, further, stated that against the said order of the Mamlatdar, the matter was carried in sue moto revision by the District Collector and vide order dated 30.06.2007, the order of the Mamlatdar is set aside. But, the petitioner has preferred an application before the Revenue Tribunal and the interim stay is granted vide order dated 25.07.2007 of maintenance of status quo and not to transfer the land. He also submitted that the petitioners may either pursue the proceedings before the Revenue Tribunal or may withdraw the proceedings before the Revenue Tribunal and may file substantive petition before this court, challenging the legality and validity of the order passed by the Collector, dated 13.06.2007, in sue moto proceedings. He submitted that in view of the aforesaid subsequent proceedings, the present proceedings would not survive, but, subject to the rights of the petitioners to carry the matter before the proper forum against the order of the District Collector in the proceedings under Section-37(2) of the Bombay Land Revenue Code.
8. It appears that the Gram Panchayat issued a notice, on the premise that the land belongs to the Government, admeasuring 28 gunthas. It is on that basis that the Gram Panchayat maintained the notice for eviction and the matter was carried before the District Panchayat, and thereafter, before the State Government. But, under the Gujarat Panchayat Act for removal of encroachment, if the land has remained as government land, the question of removal of encroachment would survive. However, if the land is held to be ownership of the petitioner, there would be no question of encroachment and consequently the removal of said encroachment would not arise. It is true that at the relevant point of time, the Gram Panchayat in absence of any order of the Mamlatdar under Section-37(2)of the Bombay Land Revenue Code for the land as that of the petitioner, had taken action. However, as recorded earlier, subsequently, the petitioner has invoked jurisdiction of the Mamlatdar under Bombay Land Revenue Code, as per Section-37(2) of the Act and the order has been passed by the Mamlatdar, holding that the land is of the petitioner and not of the Government. It appears that District Collector in exercise of sue moto jurisdiction has set aside the order of the Mamlatdar, but the matter has been further carried before the Revenue Tribunal and the Revenue Tribunal has ordered for status quo. Therefore, until those proceedings are concluded or, at least, stay order is vacated, there would not be any question of enforcing the notice for removal of encroachment. As such, the issue to be considered in the present proceedings would be mainly dependent upon the outcome of proceedings under Section-37(2) of the Bombay Land Revenue Code and no useful purpose would be served, at this stage, by examining, as to whether the Gram Panchayat was justified in issuing notice for removal of encroachment under the Panchayat Act or not.
9. In view of the aforesaid subsequent developments of the matter. Following order is passed,
10. As the Mamlatdar, Kankrej has passed the subsequent order dated 19.06.2002, under Section- 37(2) of the Bombay Land Revenue Code and the matter was further carried in appeal before the District Collector and the matter was taken-up by District Collector sue moto and the same is further carried in revision before the Revenue Tribunal and the Revenue Tribunal has passed the order of status quo dated 25.07.2007, the impugned notice for removal of the encroachment would not be required to be implemented, at this stage. The petitioner may pursue the proceedings under Section-37(2) of the Bombay Land Revenue Code before the appropriate forum, in accordance with law. But, it is only after the order is passed and or after vacating of the order of the status quo or otherwise, the notice issued by the panchayat for removal of the encroachment would be required to be implemented.
11. It is observed that in the event that the matter is carried before the higher forum under Section-37(2) of the Bombay Land Revenue Code by the petitioner or by the State Government, the rights and contentions of both the sides shall remain open.
12. The present petition is DISPOSED OF, in terms of the aforesaid observations and directions. Rule is made absolute to the aforesaid extent. No order as to costs.
(JAYANT PATEL, J.) Umesh/