Point of Law: encroachment of Land - photographs cannot give clear picture about the fact that whether road has been encroached upon or not and to what extent it is encroached upon and the same is encroached upon or not whether the same can be said to be encroachment or not, whether these photographs are take on the very date mentioned in the photographs or not or depicts the very road or portion are all debatable issues and disputed questions of facts.

ORDER :

1. By way of this petition, the petitioner has prayed for following reliefs:

“A) This Hon’ble Court may be pleased be issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, holding and declaring that the inaction on the part of the respondent authorities in removing the encroachment is bad in law, illegal and arbitrary, directing the respondent authorities to forthwith act upon the application of the petitioner dated 04.10.2010 and to remove the encroachment of about 13 to 14 ft, made on the public road admeasuring 20 X 136 ft, on the Western side of Housing Plot Nos.1 to 7 and on the Eastern side of the sim tal Land bearing Survey No.2/2 of village Jaspur, Taluka Kalol, District Gandhinagar and to make the same open to public.

B) By way of an appropriate writ, order or direction, this Hon’ble Court may be pleased to direct the Talati cum Mantri and Sarpanch of Jaspur Gram Panchayat to forthwith explain their submission of false report of having removed the encroachment on the land in question.

C) Pending admission, hearing and / or final disposal of this petition, this Hon’ble Court may be pleased to direct the respondent authorities to forthwith initiate action for removal of illegal encroachment admeasuring of about 13 to 14 ft, made on the public road admeasuring 20 X 136 ft, on the Western side of Housing Plot Nos.1 to 7 and on the Eastern side of the sim tal Land bearing Survey No.2/2 of village Jaspur, Taluka Kalol, District Gandhinagar

D) Pending admission, hearing and / or final disposal of this petition, this Hon’ble Court may be pleased to appoint a fit and proper person, as this Hon’ble Court may deem fit and proper, to act as the Court Commissioner with a direction to personally visit the disputed site being 20 X 136 ft, public road situated on the Western side of housing plot Nos.1 to 7 and on the Eastern side of the sim tal land bearing Survey No.2/2 of village Jaspur, Taluka Kalol, District Gandhinagar and to prepare a map/sketch thereof and to submit his report before this Hon’ble Court within a stipulated time as this Hon’ble Court may deem fit and expedient.

E) Such other and further orders as this Hon’ble Court may deem just, fit and expedient be passed in favour of the petitioner.

F) Costs of this petition be provided for to the petitioner.”

2. Heard learned advocate Mr.Chinmay Gandhi for the petitioner and learned Assistant Government Pleader Ms.Nidhi Vyas for the Respondent No.1 – State through video conference.

3. Brief facts giving rise to the present petition are as under:

3.1 The petitioner is a resident of village Jaspur, Tal.Kalol, Dist.Gandhinagar where the petitioner is the owner of the the land situated bearing Survey No.57 in the sim of village Jaspur since the year 1969. As stated in the petition, in regard to the adjoining land bearing survey no.3, which is on the southern side of the land to adjoining land of the petitioner, there was dispute between the petitioner and owners of land bearing survey no.3 in respect of easementary right of the petitioner. Some litigations took place between them in competent court in respect of easementary right and ultimately as the petitioner succeeded before the appellate Court as well as before this Court, the petitioner’s easementary right of way passing through the land bearing survey no.3 was upheld by this Court. Near the adjoining land bearing survey no.3 on southern side there is a land bearing survey no.2/2. During the pendency of Second Appeal No.58 of 2002, which was dismissed by this Court vide order dated 19.12.2002, the owner of the land bearing survey no.2/2 put up fencing and thereby included the area of 20 X 136 ft on the eastern side of the said land. According to the petitioner, the aforesaid land which was included in the land of owner of survey no.2/2 admeasuring 20 ft X 136 ft is a public road and falls under Gaamtal of village Jaspur.

3.2 The petitioner preferred Regular Civil Suit No.115 of