Ratanpur Gram Panchayat vs Amrutbhai Shamalbhai Vankar

G.R. Udhwani, J.—The petitioner is a Gram Panchayat, who is aggrieved by order dated 10.08.2011, passed by 2nd Additional District Judge, Sabarkantha at Himmatnagar in Civil Appeal from Order No. 28/2010, arising out of Exh. 5 i.e. application for interim relief moved in Regular Civil Suit No. 28/2008 filed in the Court of Senior Civil Judge, Idar, seeking injunction to restrain the respondents from making a construction, which was being done without obtaining the necessary permission, as contemplated u/s 104 of the Gujarat Panchayats Act, 2003 (for short ''the Act''). The Trial Court, after hearing the parties, allowed Exh. 5 and issued such injunction, but, the Appellate Court reversed the said order after holding that the resolution refusing the permission for construction to the respondent, was bad in law. While the respondent has not appeared, the learned counsel for the petitioner submitted that, it was not permissible for the respondent to have initiated the construction without necessary permission u/s 104 of the Act and in fact, the permission was declined by a detailed order dated 06.04.2010, after passing a detailed resolution dated 31.03.2010. The respondent possessed strip of land approximately with the dimension of 20 feet north-south and 35 feet east-west and the respondent had constructed a residence on that piece of land and was staying there for last about 60 years. However, he demolished the construction and applied for a permission to reconstruct now with a dimension of 35 feet north-south and 20 feet east-west land at the same place. The respondent relied upon a ''Parvana'', allegedly issued to him by one Jagirdar to assert his right to make a construction on such piece of land with such dimension. As aforesaid, the permission was refused for various reasons. The respondent, however, started construction and therefore, the above Regular Civil Suit was filed.

Learned counsel also submitted that the resolution/order, refusing the permission was never challenged by the respondent in any proceedings under the Panchayat Act and thus, he had no right to commence the construction and that the Court below failed to appreciate this vital aspect of the matter. He therefore contended that, this is a fit case where this Court may exercise the jurisdiction under Article 227 of the Constitution of India.

This Court finds a great deal of substance in the arguments advanced by the learned advocate. When Section 104 mandates a permission to construct from the local authority and in view of the admitted position that such permission was not possessed by the respondent, the Lower Appellate Court could not have any legal reason to interfere with the factual and legal aspect found by the Trial Court for the grant of injunction. By refusal of such injunction, the public bodies like local authorities would be discouraged from implementing the provisions of law and unscrupulous litigant, who insist on violation of law would set encouraged. Thus, achieving a chaos in the local administration. The moment it was shown that the respondent did not possess the permission, injunction ought to have followed. The question as to whether the resolution was validly passed could not have been made an issue before the Appellate Court, in as much as, a legal remedy to a person having a grievance against the resolution passed by the Gram Panchayat is contemplated in Section 242. Admittedly, the respondent did not resort to the said proceedings. When such legal remedies are made available to a person, it would not be permissible for a Civil Court to meddle into affairs of the local authority.

Even if the resolution was to be held illegal, the fact remained that respondent did not possess any permission to construct and therefore, a prima-facie case was made out by the petitioner and as discussed above, even the balance of convenience was in favour of the Panchayat and irreparable loss could have been caused to the Panchayat, in as much as, not only the illegal construction might have been brought in existence, but, other hazards like encroachment on the public road were the consequences, resulting into hindrances in the way of the local authority to manage the constructions in its jurisdiction.

For the foregoing reasons, the impugned order cannot be sustained. It is, therefore, quashed and set aside and the order passed by the Trial Court is restored. In above view of the matter, this petition is required to be allowed and the same is hereby allowed. Rule is made absolute. There shall be no order as to costs.