Back
2024 Supreme(Guj) 726
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sandeep N. Bhatt, J.
Ashishkumar Bhanuprasad Barot – Appellant
Versus
Deputy Executive Enginner & Anr. – Respondents
R/Second Appeal No. 421 of 2019 With Civil Application (For Stay) No. 1 of 2019
Decided On : 08-04-2024
Advocate Appeared:
For the Appellant : Mr N K Majmudar
IMPORTANT POINT
The importance of obtaining valid and legal permission from the competent authority before construction and the jurisdiction of the concerned authorities to issue notices.
Headnote:
Construction - Land Dispute - Gujarat Panchayats Act, Bombay Land Revenue Code - [Village Form No.7 & 12, 8-A, Resolution No.49/1, Mamlatdar order, Notices dated 12/10/2015 and 26/10/2015] - The court discussed the interpretation of documentary evidence, the requirement of permissions from appropriate authorities, and the legality of construction. The court emphasized the importance of obtaining valid and legal permission from the competent authority before construction and the jurisdiction of the concerned authorities to issue notices. The court also highlighted the encroachment on government land and the need to follow due procedure of law in such cases.
Fact of the Case:
The plaintiff, a co-owner of land, constructed shops on the subject land with permission from the Gram Panchayat. However, the defendant issued a notice declaring the construction illegal and ordered its demolition.
Finding of the Court:
The court found that the plaintiff failed to prove the legality of the construction and the ownership of the land. It upheld the validity of the notice issued by the defendant and concluded that the construction was an encroachment on government land.
Issues: The issues revolved around the legality of the construction, the requirement of permissions, and the jurisdiction of the authorities to issue notices.
Ratio Decidendi: The plaintiff's failure to obtain valid and legal permission from the competent authority before construction, and the encroachment on government land led to the dismissal of the suit.
Final Decision: The Second Appeal was dismissed as no merits were found, and no substantial question of law had arisen for the consideration of the Court.
ORDER :
1. The present appeal is filed by the appellant being aggrieved and dissatisfied with the judgment and order and decree dated 15.10.2019 passed in Civil Appeal No.45 of 2019 by the learned Principal District Judge, Kheda at Nadiad confirming the judgment and order and decree dated 01.10.2018 passed by the learned Principal Senior Civil Judge, Nadiad in Special Civil Suit No.2 of 2016, whereby, the appeal preferred by the appellant came to be dismissed and judgment and order and decree dismissing the suit of the appellant came to be confirmed.
2. Brief facts of the case are as under:
2.1 For the sake of convenience, the parties are referred to in their original status as plaintiff and defendants. The plaintiff is co-owner and in possession of land admeasuring 3334 Sq. Mtr., of Khata No.131 of Block Survey No. 223, at Post: Bilodara, Tal: Nadiad (hereinafter referred to as, "Subject Land" for the sake of brevity). The plaintiff had given Power of Attorney to Chandrkantbhai Bhaichandra Sharma for administration of subject land on which shops were constructed for which construction permission from Bilodara Gram Panchayat, was taken on 07-10-2014 and Raja(Chitthi), was given on 28-10-2014 as well as appropriate Resolution No.49/1, was also passed in the general meeting of Bilodara Gram Panchayat. Therefore, it is the say of the plaintiff that the construction is legal and authorized.
2.2 It is further say of the plaintiff that after the construction was over, respondent No.1 has issued letter dated 28-12-2015 by which it is stated that the said construction is illegal and the plaintiff has been directed to demolish the said shops within seven days.
3. Heard learned advocate Mr. N.K.Majmudar for the appellant.
4. Learned advocate Mr. N.K.Majmudar for the appellant has submitted that both the Courts below have committed gross error in law by not considering the material evidence available on record by way of Village Form No.7 & 12 and 8-A of village Bilodra as well as resolution passed by the Bilodra Gram Panchayat. He has further submitted that Resolution No.49/1 produced at Exh.35 by Bilodra Gram Panchayat is not properly interpreted by the Courts below. He has further submitted that the documentary evidence in nature of assessment done by the concerned authority of the said two shops which is subject matter of the suit, is also produced by way of documentary evidence at Exhs.36 to 40 and this aspect is also not properly considered by the Courts below while deciding the proceeding. He has further submitted that the Courts below have erred in straight way applying the order passed by the Mamlatdar in Tenancy Case No.07 of 2007 as the scope, ambit and parameters of the said order were altogether different and on that ground, the suit ought not to have been dismissed under the guise of widening of the road.
4.1 He has further submitted that the Courts below have committed substantial error of law in observing that the construction was carried out upon the Government land without applying the principles of proof as defendant has failed to discharge that burden and therefore, the impugned order passed by the Courts below, though concurrent findings of facts are against the present appellant, it requires interference as the Courts below have committed gross error and therefore, he referred to the suggested substantial questions of law, which are reproduced as under:
“1) Whether the both the Courts below have committed substantial error of law in interpreting the documentary evidence produced at Exh.34 and 35?
2) Whether the both the Courts below have committed substantial error of law in holding that further permissions of the appropriate authorities was required to be obtained if at all the same had been provided under any provisions and the same was not obtained by the Appellant for construction of the suit shops and, therefore, construction was treated as illegal one, despite Gram Panchayat had already passed the resolution produced on
