Jashubhai Kavaji Kharadi vs State Of Gujarat

Ashutosh J. Shastri, J

By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for following reliefs:-

(a) admit and allow this petition.

(b) issue appropriate, writ, order or direction to the respondents authorities to approve the claim of the petitioner in respect of the claim made in the year 2008 at Annexure-A.

(c) issue appropriate, writ, order or direction to the respondents to expedite the process of taking final decision upon the claim made in the year 2008 at Annexure-A and pass the final order within a stipulated period of time.

(d) issue appropriate, writ, order or direction to quash and set aside the communication dated 12.07.2018 issued by Ranger Forest Officer, Vijaynagar, Taluka Sabarkantha.

(e) issue appropriate, writ, order or direction to the respondents not to disposes or interfere with the possession of the Survey No.650paiki admeasuring 5-Acares situated at village Dalpatpura, Taluka Vijaynagar, District Sabarkantha, of the petitioner.

(f) PENDING ADMISSION, FINAL HEARING & DISPOSAL of this petition, direct the respondents not to evict or interfere with the possession of the present petitioner in respect of their claim over the Survey No.650 paiki admeasuring 5-Acares situated at village Dalpatpura, Taluka Vijaynagar, District Sabarkantha.

(g) Grant such other and further relief as thought fit in the interest of justice..

The case of petitioner is that despite the fact that there is a legitimate claim put forth by petitioner over the forest land bearing Survey No.650 Paiki admeasuring 5 Acres situated in village Dalpatpura, Taluka Vijaynagar, District Sabarkantha, authority has not examined his case. However, during pendency of the proceedings, respondent filed an affidavit pointing out that upon request of the petitioner, decision is already taken way back on 2.8.2013 and by virtue of this decision, if petitioner is aggrieved, there is an appeal remedy provided before the Chairman, District Level Committee and Collector, Sabarkantha/ Himmatnagar and same can be filed within a period of 60 days.

There appears to be a little controversy about service of this impugned communication dated 2.8.2013. However, when the matter is taken up for hearing, without entering into the said controversy, learned advocate Ms. Kruti M. Shah under instruction seeks permission to withdraw the petition since petitioner is already inclined to approach by way of an appeal before Appellate Authority as indicated in communication dated 2.8.2013 and has requested if petitioner approaches the authority within some time stipulated by this Court, authority may examine it on merits instead of raising technical plea of delay.

To this request, learned Assistant Government Pleader Ms. Hetal G. Patel has though resisted but than has submitted that it appears from the record that there is an interim order granted by Coordinate Bench of this Court on 20.11.2018 and possession as on date as stated to be not disturbed, it would be apt and appropriate that if petitioner is inclined to withdraw the petition, Appellate Authority may examine the grievance of petitioner on merits.

Hence, the Court without expressing any opinion on merits of the case would permit the petitioner to withdraw the petition on following terms which would meet the ends of justice-

(1) Petitioner is permitted to approach the Chairman, District Level Committee and Collector, Sabarkantha at Himmatnagar against the impugned communication dated 2.8.2013 with adequate material to justify the claim within a period of 10 (TEN) Days from today.

(2) If the petitioner approaches the authority, as indicated above within a period of 10 days, the authority shall consider the claim of petitioner on its own merits and in accordance with law after due verification of the material which may be made available without insisting upon delay in approaching the authority and shall pass order on merits after due opportunity to the petitioner.

(3) It is made clear that this Court has not expressed any opinion on merit since petitioner is inclined to withdraw the petition and would like to prefer an appeal, as indicated above, and authority is permitted to take independent decision on its own merits. However, while passing such order, authority may consider the fact that by virtue of order dated 20.11.2018, interim protection was extended to the petitioner, so till fresh decision is taken, authority may not apply any coercive method.

(4) It is made clear that if petitioner does not approach the authority, as indicated above within a period of 10 days, aforesaid interim measure and the observations may not apply and authority is to take all possible steps which may be permissible under law.

(5) It is also directed that if petitioner is approaching the authority within aforesaid period, authority shall consider the claim of petitioner as expeditiously as possible and take decision within a period of FOUR WEEKS from such date.

With aforesaid observations, petition stands DISPOSED OF as withdrawn. Notice is discharged. Ad-interim relief stands vacated.

Direct Service is permitted.